Copyright Laws

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Original Post

gatherings says

I am interested in knowing if anyone out there in Etsy Land knows anything about making items from Copyrighted Fabric such as Disney characters, Marvel characters, etc., etc. I recently had an item listed on my shop that was made of Spider Man fabric and it was suggested that I could get in trouble by doing this. I pulled it off my list of items, but after searching the internet yesterday I saw hundreds and hundreds of items made of similar fabrics. Do these people not care about infringement laws, or am I just being paranoid. Please help me, somebody!!! Perhaps these people don't read the edge of the fabric. Some clearly state that this items is to be used for personal use only -- not for resale.

Gatherings

Posted at 1:53pm Jan 2, 2006 EST

Responses

Probably most people are ignoring the law on this issue. But you're not being paranoid, because it IS still the law, and this being a rather public sales forum, you might be the one to get caught.

Some items you see on the internet made out of these fabrics may in fact be infringing on licensing laws, or the maker may be paying a royalty to the respective company for the right to use those fabrics in a commercial re-sale setting.

Posted at 6:20pm Jan 2, 2006 EST

soap says

as long as the fabric is made by a manufacturer who has license to, you have the right to use that fabric in any way you want - but not to say the companies won't try to come after to you. here's a good resource and this woman is the goddess of this kind of issue - www.tabberone.com/Trademarks/HallOfShame/HallOfShame.shtml

Posted at 10:00pm Jan 2, 2006 EST

kateblack says

Trademark law is murky, as you can tell if you've read some of the Tabberone.com site soap mentioned.

It is trademark law, not copyright law, which applies to your situation -- assuming you're making your own patterns and not using a commercially sold pattern for your items.

Most people are just ignorant of the laws. Some people don't care, but most just don't know. I don't know as much about trademark law as I do about copyright, but I've been on the receiving end of legal threats from Mattel (over my photograph of a defaced Barbie doll I put in my zine when I was 15). Anecdotal evidence on trademark law has led me to believe there is nothing set in stone, and it's all just about who has the best lawyers.

It IS fairly normal in licensing agreements for craft materials (patterns, fabrics, printed scrapbooking material) to be sold for home & personal use only. It's when you make things available for sale & commercial purposes that they sic their lawyers on individuals.

I really think this is all the more reason to make everything yourself. Your work is going to more unique and valuable if you don't use items with corporate icons printed on them.

Posted at 9:36am Jan 3, 2006 EST

soap says

gatherings,
if you're going to start an actual business (selling with profit), you probably should consult a lawyer about what you can and can't do. usually every state has a program called something like lawyer for arts. maybe google it - i used to have the link. basically, it's a referral list of groups of lawyers who consult on things like copyright and trademark. one of those groups defended an artist against mattel over this artist's use of actual barbies in 3D pieces. i thought it was a copyright issue (maybe the photos of barbie were the problem) and the artist won.

probably best to figure out where you stand if you really want to use copyrighted and/or trademarked fabrics or starting materials.

good luck.

Posted at 4:26am Jan 4, 2006 EST

tabberone says

Actually copyright law. Precious Moments case:

The First Circuit Court specifically rejected the copyright claim where La Infantil was being accused with unauthorized use of copyrighted fabric, saying that "bedding items manufactured with lawfully acquired, authentic fabric with copyrighted design were not infringing derivative works."

The Court also said "The copyright owner's right to distribute the work is limited by the "First Sale" doctrine, which permits the owner of a legally acquired lawfully made copy of a work to sell that particular copy without the consent of the copyright holder".

It's a fact that licensed kids prints sell well. Items made with a Disney print are going to sell better than an item made with plain fabric.

Posted at 12:52pm Jan 4, 2006 EST

alvirudi2 says

so, here i am..once again confused..if i paint kids' clothing, are you telling me that if i paint copywritten figures on them, or make patches out of coywritten fabric, that is legal?

Posted at 1:02pm Jan 4, 2006 EST

That is very interesting Tabberone. Thanks for sharing that. I use to make clothing with licensed fabrics and then stopped when someone informed me that I was doing something illegal. I have to admit I never bothered to look into after that and never used licensed fabric such as harry potter, disney, carebears, etc since.

I still get lots of requests for cutom orders using licensed fabrics, but have yet to make any custom orders with it.

I recently had a lady who wanted me to make her a set of cloth pads with some Marilyn Monroe fabric she had. She offered to send it to me so I could make the item. I guess if she already owns the fabric it wouldn't be so bad right?

I know there is a lot "no no's" when it comes to using things of Disney. I stay clear of Disney fabrics and such.

Posted at 1:07pm Jan 4, 2006 EST

Alvirui2,

I think if you use an image that is copyrighted ( you are infact copying it), than yes it is illegal. Using a licensed fabric may not be according to Tabberone.

Posted at 1:08pm Jan 4, 2006 EST

tabberone says

You can not paint copyrighted characters onto items, that is infringing. And you can't paint something and change it 20% or whatever that urban legend is. If it is recognizable to the average person as a licensed character then it is infringing. Remember all of this is my opinion, I'm not a lawyer.

And it's not me that says using licensed fabric is not infringing. It was in federal court.

Another hint - you shouldn't say Disney Pooh Pillow, you should say Pillow made with Disney Pooh fabric. And I always recommend a disclaimer.

Check out my Hall of Fame. Joe Gibbs Racing shutdown a seller. She knew me, she used the Precious Moments case and First Sale Doctrine and Fair Use Doctrine. Joe Gibbs Racing check with their lawyer who said it was ok for people to sell items made with the fabric.

What is "interesting" is that MGA won on a techanicality. They didn't get a ruling that using an applique was infringing they got something that said "good faith belief" was just "cross my heart and hope to die"

However check out eBay. They are so gun shy they aren't even shutting down counterfeits.

Posted at 4:19pm Jan 4, 2006 EST