Ask crowdSPRING: Can Creative Commons Licensed Works Be Used For Logo Design? Ross | October 1st, 2009

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.

Do you have other questions related to this issue? Please feel free to ask in the comments.

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  • Justin

    I disagree with your conclusions. It is possible to create a distinctive logo utilizing licensed inputs. It simply depends on how the licensed inputs are utilized. For example, it is common to claim a distinctive mark based on the type of font utilized – in that case their is an implicit license from Microsoft to use the font.

  • Justin

    I disagree with your conclusions. It is possible to create a distinctive logo utilizing licensed inputs. It simply depends on how the licensed inputs are utilized. For example, it is common to claim a distinctive mark based on the type of font utilized – in that case their is an implicit license from Microsoft to use the font.

  • http://www.crowdspring.com Ross

    Justin – thanks for commenting. You are right that one can have a distinctive logo utilizing licensed fonts. (I’m writing an e-book covering the law related to fonts). The issue here isn’t fonts, however. Let me illustrate: suppose two different businesses, in the same industry category, used an identical font spelling an identical name. It’s reasonable to say that neither would be distinctive. If the same font was used, on the other hand, for different businesses using different names, then each could be distinctive even though they used a common font.

    In the case of images (the context of this blog post), two companies that used a Creative Commons image would end up using an identical image for their logo. Of course, other things would also be relevant, such as colors, shape, etc. However, most companies that incorporate marks in their logos also desire to use the marks independent of the logotype. As a result, even if the combined mark was considered to be distinctive, this would be a serious limitation on such use. This limitation (and the general problem with an identical image used by many people being sufficiently distinct) is why stock sites don’t allow use of stock images in logos.

  • http://www.crowdspring.com Ross

    Justin – thanks for commenting. You are right that one can have a distinctive logo utilizing licensed fonts. (I’m writing an e-book covering the law related to fonts). The issue here isn’t fonts, however. Let me illustrate: suppose two different businesses, in the same industry category, used an identical font spelling an identical name. It’s reasonable to say that neither would be distinctive. If the same font was used, on the other hand, for different businesses using different names, then each could be distinctive even though they used a common font.

    In the case of images (the context of this blog post), two companies that used a Creative Commons image would end up using an identical image for their logo. Of course, other things would also be relevant, such as colors, shape, etc. However, most companies that incorporate marks in their logos also desire to use the marks independent of the logotype. As a result, even if the combined mark was considered to be distinctive, this would be a serious limitation on such use. This limitation (and the general problem with an identical image used by many people being sufficiently distinct) is why stock sites don’t allow use of stock images in logos.

  • Justin

    Your point is well taken and I believe we are actually arguing the same point. It would be difficult for two companies to use the same logo (or substantially similar logos) in the same market but it would not be impossible for a company, for example, that does work in the oil drilling market and another company in the teddy bear market to have the same logo (or ssl) – it is a question of whether consumers would be confused by the use. And it would be possible for someone to take an image or a design and alter that image or design in a way to make it distinctive from another logo that incorporates a similar design or alteration. As long as it is not confusingly similar.

    I think there are other reasons why companies like iStockphoto don’t want their materials in logos – inadequate compensation and length of use. Use of iStock materials in a logo could endure for years whereas standalone use is probably more transitory.

  • Justin

    Your point is well taken and I believe we are actually arguing the same point. It would be difficult for two companies to use the same logo (or substantially similar logos) in the same market but it would not be impossible for a company, for example, that does work in the oil drilling market and another company in the teddy bear market to have the same logo (or ssl) – it is a question of whether consumers would be confused by the use. And it would be possible for someone to take an image or a design and alter that image or design in a way to make it distinctive from another logo that incorporates a similar design or alteration. As long as it is not confusingly similar.

    I think there are other reasons why companies like iStockphoto don’t want their materials in logos – inadequate compensation and length of use. Use of iStock materials in a logo could endure for years whereas standalone use is probably more transitory.

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