‘Tis the season for infringement


University marketing enforces zero-tolerance infringement policy on merchandise.

Rivalry T-shirt sales are often created by students in order to stimulate and make known the intrastate contest between SDSU and USD, or other rivalry games, in sometimes explicit fashion. SDSU holds a zero-tolerance policy for copyright infringement, in which the university’s logo is used on a profit-making item not approved by SDSU.

While these T-shirt sales occur throughout the academic year sold by various students, who sometimes make profit off them, sales typically spike during fall when football season hits, according to University Marketing and Communications Manager of Creative Services and Branding Andrea Kieckhefer. This spike in sales correlates to a spike in operations the department shuts down.

“We’ve shut down 20 [copyright infringement sales] this year alone, between the Hobo Day shirts and rivalry shirts… it is a reoccurring issue, we’re kept busy with it in the fall and it dies down past Hobo Day and football season,” Kieckhefer said. “I’m only one person, so I can’t know what’s going on everywhere, so we rely on other people, like students, to bring it to our attention when they think it isn’t approved. We monitor Twitter, Instagram and Facebook wholeheartedly looking for those T-shirt sales.”

This rivalry-inspired clothing is made for a number of reasons, such as spurring the two universities’ rivalry, creating awareness of the rivalry and having a source of profit for students.

“I personally don’t know how much profit I actually make off of them, but I do make some. I honestly find it fun and motivating to sell shirts and see people wearing my design. I decided to start selling last year,” junior human development and family studies major and ex-rivalry T-shirt supplier Brianna Newman said. “I sold crewnecks last year and this year for Hobo Day. So I thought ‘hey, maybe rivalry shirts would be neat, considering the U does them every year.’” Newman was notified by the University of South Dakota that she violated the school’s copyright infringement policy.

According to Kieckhefer, the process that starts after SDSU trademarks are violated doesn’t begin with hostile threats containing dire consequences, but rather a personal email to the individual running the page, letting them know that there is a problem with their merchandise and that the university requests they shut down operations. If said individual does not shut down operations, the next step is to flag the Facebook page and provide proof that SDSU marks are being used illegally.

“If the shirt pops up on another site we just start the same process again. If we don’t get any confirmation, then we bring in university council for a cease and desist letter, or we go through student affairs and they’ve got a process there too,“ Kieckhefer said. “We haven’t had to take legal action; we have been able to typically shut down most of these. We haven’t at this point confiscated any shirts yet, but we do have the right to do that and at some point it may come to that.”

This process sometimes starts without the understanding that most universities deal with ongoing copyright infringement sales throughout the year, so the logic that if other universities students are selling these shirts, so can SDSU students.

“I am aware of trademark infringement policies… [USD’s notification email] honestly made me want to do it even more. I simply replied and told them to check out what their school is doing and the words they have been using on their shirts, especially the word ‘state,’ because our infringement policy covers that word,” Newman said.

While stopping an individual or group from selling a specific shirt that violates copyright infringement, it doesn’t necessarily exhaust their creative spark to try a new design instead.

“Last year I had to redo the design I had made because it was too touchy with the SDSU policy. Although, I didn’t think I stepped on USD’s toes as far as their policies go, considering they use STATE in their rivalry shirts,” Newman said.

While this department has to handle copyright infringement cases with its own students, they also have to deal with companies producing merchandise with SDSU trademarks which they didn’t have permission to do. While both scenarios of students and outside companies deal with copyright infringement, unfamiliarity of trademark often plays a role in favor of students.

“It’s honestly a 50-50 split [between companies and students]; in the fall it’s mainly students and most of the time they’re innocent in the fact they did not know that this was something they could not do.”

Some companies know this is something they cannot do, but make a living off of it nonetheless. There are also attempts to modify or make a variation of the SDSU marks, which usually takes longer to justify its violation with trademark. This makes shutting down the operation take longer since there is no cut-and-dry way to tell if something is copyright infringement or not according to Kieckhefer.

Some of these cases that attempt to make a variation of an SDSU mark occur here on campus when a club or organization tries to affiliate themselves with the school but are not aware of the copyright laws. On the other hand, clubs and organizations affiliated with the university are not permitted to make variations of the schools marks, and instead need to use their actual logos, slogans and word marks.

“We look at the shirt to determine if it’s similar or if it causes confusion to whether or not that’s truly a university approved or licensed piece of apparel, so that’s where that test comes in,” Kieckhefer said. “We’re willing to work with any club or any organization to get a proper unique logo if that’s what they’re choosing, but they cannot commit copyright infringement. If they’re looking for us to design for them we can do that so there would be a design fee.”

Another aspect to rivalry T-shirt sales, Kieckhefer thinks, is that students usually don’t realize the 10 percent royalty fee approved vendors-pay goes into student scholarships, which last year totaled $250,000 in scholarships.

“…It ends up hurting the students in the long run when they do buy those copyright infringed shirts,” Kieckhefer said. “The important thing is we’re not trying to put a damper on the students’ fun or hinder the creativity of it. We are trying to protect our brand and the university’s reputation, that’s really what a large part of my job is about.”

As the department works to lower the number of copyright infringement violations among students, it is believed by some students that there will always be a successor to making rivalry T-shirts.

“I do believe others will be designing shirts and I honestly hope they do. If USD does it, so can we,” Newman said.  “I would have made another design but it takes time to actually sit down and think of one, then design it, then sell. It’s a process. So, yes, I do believe and hope someone else makes rivalry shirts.”