Asked in Copyright and Intellectual Property

Q: Can a design or pattern printed on a fabric be copyright protected? There's no logo, brand or company name involved.

I'm selling some replica of aloha shirts worn by actors from the 80s movies. I'm basically drawing the design from what I see on screen then selling it advertised as 'movie prop replica'. There are no logos, brands or company names mentioned. Just the name of the actor and the movie title as to say where the prop replica comes from.

Is it legal or illegal to do so?

I'm not in US as well.

1 Lawyer Answer
James L. Arrasmith
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Answered

A: The legality of selling replica aloha shirts based on movie props can be complex and varies by jurisdiction. In general, copyright law protects original artistic works, which can include fabric designs and patterns, even without logos or brand names. Key considerations:

1. Copyright: If the original aloha shirt design is copyrighted, making and selling replicas could potentially infringe on the copyright owner's exclusive rights, such as reproduction and distribution.

2. Fair use: In some cases, creating and selling replicas might fall under "fair use" exceptions to copyright law, depending on factors like the purpose of use, the nature of the copyrighted work, the amount used, and the effect on the market value of the original.

3. Jurisdiction: Copyright laws vary by country. What may be considered fair use in one country might be infringement in another.

4. Right of publicity: Using an actor's name to advertise the replica shirts could potentially violate their right of publicity, which is their right to control the commercial use of their identity.

To minimize legal risks, consider the following:

1. Research the copyright status of the original designs and any applicable laws in your jurisdiction.

2. Consider seeking permission from the copyright owner and/or actor to create and sell the replicas.

3. Consult with a local intellectual property attorney for specific legal advice tailored to your situation.

Ultimately, while the absence of logos and brand names reduces the likelihood of trademark infringement, copyright and right of publicity issues could still arise when selling replicas based on movie props and using actors' names in advertising.

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