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Hi John,

I’d prepared the following last night only to have a laptop melt down so apologies if I am now repeating what others have said :)

I think the short answer is that two wrongs don’t make a right; if others are doing it does not necessarily mean it’s “ok” or legal. Disclaimers can help but are not a certain legal defense to any infringement claims. Disclaimers can help argue you are not ‘passing off’ as you’re making it clear there’s no affiliation with someone else BUT it’s certainly not the be all to end all.

There’s a fine line between copying and being inspired by someone else’s work. If your work does not copy a substantial (important) part of someone else’s work then there’s probably not a copyright issue. Disclaimers can help show you are not pretending to be authorised/affiliated when you’re not. At the end of the day, if an IP owner feels your trading off or profiting from their work and reputation they’re not going to be happy so will want that to stop.

I had a client recently enquire (purely as an example) around use of the phrase “I am your father” and whether this was a breach of any Star Wars related IP – the answer is probably not. However, turn this into “Luke, I am your father” and put it on a t-shirt with clear Star Wars related style and imagery, yes it possibly could.

Copyright does not protect ideas or styles – e.g. it doesn’t protect the ‘idea’ of drawing a super hero or a cartoon mouse etc but if your design copies a substantial part of someone else’s artistic work – noting again, substantial here means an important part – not necessarily a big or overall part then it could amount to copyright infringement. If any of those brand owners have registered trademarks and you use something that is deceptively similar to that registered mark this could be a trademark infringement concern. One big difference between the two – Copyright infringement requires you have copied their work (e.g. coincidental similarity isn’t infringement) – Trademark Infringement though does not require you to have copied the trademark, or even have known about it – i.e. coincidence is not a defence to TM infringement.

I would certainly spend some time reading articles and similar online based on key words of “Inspiration versus Infringement” and similar, as there’s a lot of posts (including genuine and legally written) that discuss this very thing given the line is often blurred.

Trust this helps.