In the past, we’ve discussed why it’s unlawful to use stock images, including royalty-free stock, for logo design.
This morning in the crowdSPRING forums, we’ve been discussing whether it’s appropriate to use work licensed under a Creative Commons license, for logo design. This is an important topic and a serious issue. If you don’t have rights to your design (because you are using an image and this is not legally allowed), you harm the client, yourself, crowdSPRING, and our entire community. Such action not only violates crowdSPRING’s standards of conduct and user agreement, but you also expose yourself (and your client) to legal risk. Here is a short Q&A:
1. What is Creative Commons?
Answer: Here’s how the Creative Commons organization describes itself:
Creative Commons is anonprofitcorporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.
We providefreelicenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.
Creative Commons licenses are not an alternative to copyright, but do work with copyright law to simplify ways that you can license your work to suit your own desires and requirements. Here’s a good video that explains how Creative Commons licenses can be used in commercial work.
2. Can Creative Commons licensed images be used for logo design?
Answer: No. Many designers assume that they can freely use publicly licensed images in their designs. While it may be appropriate and lawful to use images licensed under the Creative Commons for commercial use, in most graphic design projects (please carefully read the Creative Commons license so that you understand whether you have the legal right to use the image in commercial work), such images may not be used for logo design.
Some background first. Copyright is a form of legal protection provided to those who create original works. When you create original graphic designs, your work is entitled to copyright protection. Under the 1976 Copyright Act (United States), the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform and publicly display the work. Any or all of these rights can be licensed, sold or donated to another party. Copyright laws around the world can differ in significant ways. Most countries are signatories to various international treaties and agreements governing copyright protection (such as the Berne Copyright Convention). Under the Berne Copyright Convention, if your work is protected by copyright in your own country, then your work is protected by copyright in every other country that signed the Berne Copyright Convention.
Creative Commons licenses work in a similar way. The owner of the work licensed under Creative Commons is permitted to determine how that work may be used by others.
So why is it not permissible to use a Creative Commons licensed work in logo design?
The answer to that question lies in trademark, not copyright law. A logo created for a company (or person) might be protected by copyright law (or under a Creative Commons license), but it may not be protected under trademark law.
A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another.For example, the trademark “Nike” along with the famous Nike “swoosh” identify the shoes and other products made by the Nike company and distinguish them from shoes and other products made by other companies, such as Addidas. When marks are used to identify services, they are called service marks (service marks are generally treated just the same as trademarks).
Trademarks must be distinctive (capable of identifying the source of a particular good or service). Because images licensed under a Creative Commons license aren’t licensed solely for the use by one person or entity (depending on the license, anyone can use the image), those images are not distinctive.
Keep in mind that a company purchasing a logo (which often includes a mark) doesn’t want to see the mark/graphic to be used by other businesses. It’s possible that thousands of companies could end up using the same graphics in their logos. This presents numerous problems, including making it very difficult if not impossible to obtain trademark protection for a logo.
3. But what if the image is licensed under the Creative Commons for commercial use?
Answer: The answer doesn’t change, even if the image is licensed under a Creative Commons license for commercial use. You may not use Creative Commons licensed designs in logos.
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