Copyright and Trademark 101: Why You Won't Find Featuring The Feline With The Striped Chapeau in My Store



I often have buyers ask, “Will you make something with X?” when X is Minecraft, the movie Frozen, Sponge Bob, a specific superhero, Dr. Seuss-themed… You get the idea.

Here’s the thing - you won’t ever see identifiable characters in any of my products or on my blog.  Do you know why?  Because those characters are protected by copyright - plus, the names are usually trademarked.

"What’s the big deal?” you wonder.  “I make stuff like that for therapy all of the time - I just googled the images and put them in my document.”  That is fine.  The “fair use” section of United States copyright law allows teachers and other educational personnel to use copyrighted materials for teaching purposes.  What you make in your therapy room stays in your therapy room.  However, the line is often confused with posting materials online.

I often have sellers and bloggers ask me where exactly that line is, and I decided it would be easiest to address some of the most frequently asked questions here.  This is meant to be a helpful guide.  (Please note, I am not a lawyer, and if you have a serious legal question, you should consult an attorney, not me!)

Frequently asked questions:

“I’m not charging anything for it.  That’s not a copyright violation, is it, since I’m not earning a profit?”

Yes, it is a copyright violation, and it doesn’t matter if your item is free or paid, as long as it is posted online.  This could be on TeachersPayTeachers, a personal blog, a school website, or Pinterest.  If you don’t own the character/image, or have permission to use it (where clipart or photos are okayed for commercial use), posting it online is likely against the law.  This applies not only to images, but books, free or paid materials downloaded from TpT, test manuals, and more.

“I bought this Frozen clipart to make this product, and it said commercial use was ok.”

Here, the problem is that if you can recognize the character, it is a copyright violation.  The artist you bought from is violating copyright law in the first place.  This is where many sellers make mistakes, and is very unfortunate.  You are the one posting the material, so you are ultimately responsible in the eyes of the law.

“No one told me that this was a problem, so I can’t get in trouble for not knowing, right?”

Can you still get a speeding ticket when you weren't paying attention to the speed limit signs?  Of course.  Copyright law applies just like any other law - it doesn’t matter if you are aware you are breaking it or not, you can still be sued.  If you are posting things on the internet, it is your responsibility to educate yourself about copyright and trademark law.  (Good news!  You’re reading this post now, so you are off to a good start.)

"I’ve never gotten a cease and desist letter, so my product is fine, right?”

Companies don’t have to do you the courtesy of sending you a cease and desist letter - they can move straight into a lawsuit.  Trust me when I say - you do not want this to happen to you.  Even if the court rules in your favor, you will be responsible for all court costs, which add up quickly.

"How do I know if a name is trademarked and to stay away from it?

There is a website called trademarkia.com that is very helpful to see at a glance if a name is a registered trademark, and for what category.  If a name is trademarked only for building materials, for example, using the term for educational products and/or games is probably ok.  For example, the term “Ace” is trademarked for both bandages and a hardware store - but because those categories don’t overlap, they were approved.

“What about making materials to go along with a program like ‘Reading Street’ or the 'Expanding Expression Tool’?  Can I use those names in my product title or description?”

It depends on the publisher/author.  If you are not sure, contact the company directly and see what they have to say.

If a title is trademarked, you cannot use it without permission from the trademark holder.  “Reading Street” is trademarked by the publisher for educational use, which means it is off limits.  As far as I know, the “Expanding Expression Tool” (EET) does not yet have a registered trademark, but I believe the author is in the process of having this done.  Unless you obtain direct written permission from the owner of the trademarked name, do not use it in your products or the description.

Additionally, the EET itself is a copyrighted idea; the author has stated before that you may not use the colored circles and the corresponding labels together in any product.  Use of the colored circles with no labels *may* be allowed with attribution, but you really need to check with the author first.  

Tip:  If you have indeed gotten permission to use a product name or trademark in your product, it is a good idea to include a statement to this effect in your product description.  (For example, "The term XX is used with permission from the author/publisher/trademark holder NAME.  The author of this product has no affiliation with the author/publisher/trademark holder, and these materials should not be used without purchasing XX.")

"What other common names are trademarked?"

Terms such as the Super Bowl, Read Across America Week, March Madness, and the Olympics are all trademarked and should not be used.

"Can I make a companion activity to go along with a certain book?”

Generally speaking, yes*, as long as your product does not replace the need to purchase/use the book itself.  You should not use large direct quotes from the book (usually a sentence or two is ok).  It’s not a bad idea to include a disclaimer in your product description along the lines of, “The author of this product is not affiliated with the author or publisher of BOOK TITLE.  This product is designed to be used as a companion for BOOK TITLE, not as a stand alone product.”

Also, you can’t use the book cover or any images from the book (unless you obtain written permission from the publisher - which is granted on occasion, but is not very common).  The best bet is to use images that represent the theme of the book, without being direct copies of the original illustrations.

*You can use book titles in your product UNLESS the name has been trademarked.  This includes Dr. Seuss and any associated titles and characters, Eric Carle and any associated titles and characters, and Pete the Cat.  Check trademarkia.com before starting to be sure.

"Can I use whatever images I want on my blog/free product?  I’m not making money from it."

No, you should not use Google images (or any other search engine) when finding pictures for anything you post online, whether it is for your blog, free products, or paid products.  It doesn't matter if you are making money from it or not - don't post things online with images or content that either don't belong to you or you don't have permission to use.  This may mean you need to take pictures yourself, find clipart that is ok to use commercially, find pictures that are in the public domain or those that have no restrictions for commercial use.  I have heard of several bloggers losing lawsuits against them for using an image they did not have permission to use.  It isn’t worth the risk!

"Other people have items with Dr. Seuss or Frozen characters posted.  Why shouldn't I?"

Just because other people are doing something doesn't make it legal or ethical.


I hope this post has been helpful!  If you have other questions, feel free to contact me directly or post them below, and I will do my best to point you in the right direction for an answer.


4 comments

  1. This was an incredible post, Natalie! Thank you so much for writing this. The information was very clearly explained and I definitely have a better understanding now. It's a good thing I'm not a big TpT author!

    ReplyDelete
  2. Thank you! I was wondering about wording for a book companion that I am working on.

    ReplyDelete
  3. Thanks so much, Natalie! Great information!

    ReplyDelete

Back to Top