You cannot just throw a copyright-protected phrase on a t-shirt and sell it, that is what 18-year-old Kayla Robinson is learning the hard way after Frank Ocean wore one of her designs on stage at New York’s Panorama Festival on Friday evening. What seemed like it was shaping up to be a truly massive break for Robinson’s small brand, Green Box Shop - which received thousands of orders for the t-shirt that Ocean wore - is actually turning out to be a nightmare with some very real legal implications.
As noted by no shortage of fashion and music sites this weekend, during the Panorama show, Ocean wore a T-shirt that read, “Why be racist, sexist, homophobic or transphobic when you could just be quiet?” The phrase, it turns out, was not original to Robinson, but actually came from one of 18-year-old Brandon Male’s tweets dated August 8, 2015.
While many individual Twitter users - and social media users in general - (as opposed to corporate entities) have been quite lax in terms of intellectual property rights violations, in part because social media platforms have largely become places to repost others' content, Male is not one of them.
Syracuse-based Male told the New York Times that he reached out to Green Box Shop earlier this year with concerns over their use of his phrase. “They told me I needed to calm down and said they credited me on Instagram one time. I ended up letting it slide after that.” Robinson said she first came across the saying when someone sent the text of it to her. “Someone direct messaged us and said you should put this quote on a shirt. They didn’t send me a screenshot or anything,” she said.
The problem: If the phrase is, in fact, original to Male, he has copyright ownership over it, meaning that he has the exclusive right to make, sell, and display products bearing the phrase. (Note: Copyright law - which tends to be a bit of a murky issue in terms of tweets - protects "original works of authorship fixed in a tangible medium of expression." This includes writings that are put on Twitter, a modern day tangible medium).
Male's copyright in the phrase also means that others are not legally allowed to do so without his prior authorization. Also worth noting is that crediting your source does not alleviate copyright infringement claims if the copyright holder did not authorize use.
While Robinson tried to appease Male after the Panorama show by sending him $100 on Venmo and adding a link to Male’s tweet on Green Box Shop's product page, Male is not amused. He says he calculated that $100 was less than 1 percent of the revenue Green Box Shop had pulled in since Ocean’s performance.
Robinson told MTV that during a typical week, Green Box sees a daily average of 50 orders. On July 29, the day after Ocean's set, she said that 3,500 orders were placed. And an additional 1,000 orders were placed before MTV's article went to press on July 30. "That means that Green Box sold ten times what they typically do in a week in a single day thanks to the exposure Ocean provided."
According to the Times, Robinson and Male have set up a time to speak and “discuss numbers.” Neither side has said what he/she plans to do with the funds but here is a suggestion: Donate them. The Human Rights Campaign and GLAAD are worthwhile causes - given the message that adorns the t-shirt. Covenant House, which provides accommodations for homeless youths is another good one.
Legally, the takeaway here: Just because a phrase is put out into the world via Twitter does not necessarily mean it is fair game for you to run with and derive a profit from.