https://archive.org/details/LegalGeekEp103
Just over two years ago on this segment, I discussed why small fan art and goods sellers at summer game and comic conventions often fall under the radar and avoid copyright and trademark infringement claims. As a refresher, the primary reason is that it is very expensive to pursue every small infringement of a popular IP, and if there's no significant money to be earned, it does not always make business sense to pursue such infringement claims. Another reason is that these fans typically enhance the market for the original owner's products, not the opposite.
The Ars Technica article is basically about the same subject, except that T-shirt sellers are more prominent overall and do what appears to be good business online and at booths in these conventions. Often, the shirts include well known characters, logos, or sayings, usually with some additional twist. So the question posed is a good one...how does this industry stay in business despite the constant threat of trademark or copyright infringement enforcement?
The first answer provided in the article is that many of these shirt sellers keep no significant inventory, only printing different designs from artist submissions every day or week, and only based on actual consumer demand. Although this is still technically IP infringement in some cases where fair use does not apply, the lack of a constant money stream from any one intellectual property makes it nearly worthless for an IP owner to try and stop the sales after the fact (or recover the profits from the small amount of sales made). The business model is tailored to keep moving the target, which is wise from an IP standpoint.
A second answer provided is that these websites comply with all DMCA takedown notices promptly, just like other user generated content sites like YouTube. With copyright infringement being the potential biggest threat thanks to the potential for large statutory damages instead of lost profits and the like, compliance with the DMCA seems to be a great idea in the current IP market. Of course, the DMCA covers the digital marketing and display of the shirt images, and the actual sales themselves or the artists making the work could still be pursued for infringement, so it's not really a perfect solution for protecting the T-shirt makers.
The third answer was provided in a similar manner as I did on this segment before, that the actual money involved is small enough to not be worth pursuing in many cases, especially considering the fan backlash that would happen against the original IP owner for enforcing their rights. It's just the economic reality of IP law and enforcement. It's also why these types of cases have been limited to contexts like the Star Trek Axanar case, where a lot of money came in suddenly via crowdfunding and competed directly with the products of the original IP owner.
The Bottom Line is, the Ars Technica article is correct in stating that it's a tangled web of business realities and legal defenses such as fair use that keep this T-shirt business afloat. Most IP owners and developers enforce their rights based on their own level of tolerance, and that seems to be a fair solution for this market. Regardless, most of these IP owners aren't heavy into the T-shirt or apparel business, so they may not feel the need to fight over this ground. But make no mistake, a lot of this is IP infringement and a business risk, even if the rights are not often enforced.
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