What happens if you use a copyrighted design?

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What happens if you use a copyrighted design?

I am a high school student and the head of a Japanese Anime Club. We were thinking of holding a fundraiser in which we would sell a red and white striped wrist band with the phrase from Pokemon “I Choose You!” embossed in black to give the bracelet the appearance of a pokeball. I have contacted the Pokemon Company and they have approved of the usage of their quote, but the use of the pokeball design is copyrighted. We are only using the color scheme. Is using that as a color scheme subject to lawsuit? If not, what law protects us?

Asked on August 26, 2011 California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you use a copyrighted design without either the express consent of the copyright owner, or if the use does not fall under one of the exceptions, then you are guilty of copyright infringement.  The penalties for infringement can be steep.  There can be both civil and criminal liability on the part of the infringer.  There are exceptions to the copyright law that can be used a defense in a copyright infringement case such as fair use.  Generally use for educational purposes is also covered.  Your use is not educational purposes. Here, though, your use is not the actual pokeball, which is copyrighted.  It falls under I think design infringement, but use of colors to infer a design? Maybe, maybe not.  If the use of the colors is distinctive to identify a "product" of another then it is infringement.  Think about using a professional sports teams colors in a design.  If you can alter the idea a bit to make sure that you are clear it is always best.  If it looks like infringement to you then it will to others.  Good luck. 


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