Copyright Infringement: Making Crafts to Sell from Brand Name Material

by Craft-Business-Ideas on June 26, 2012

I got an email from a long-time eBay seller who makes her crafts using material from a major brand name company. Apparently, the company is forcing her to discontinue making her crafts with their stuff.

Unfortunately, many crafters are under the impression they have the right to use brand name materials when making their crafts to sell. I don’t know who is telling crafters they can use copyrighted materials in this way, but it isn’t completely true and potentially costly advice. There is a provision in the copyright law for “fair use” of others’ designs, but it is easy to go past the point where “fair use” protects you without knowing it. You are safer by just using your own original designs and get them copyrighted.

An exception to using others’ designs would be when a pattern or design is from a book, website, or other source that specifically says you have permission to use the design for resale.

In most legal cases involving copyright infringement, typically the party who holds the earliest registered copyright is more likely to win. However, every case is different based on the facts. Another factor to think about  is the amount of money required to spend on legal fees in a court case. Legal fees are substantial and the lawyers win regardless of who wins the case so they have nothing to lose by encouraging you to go to court.

{ 4 comments… read them below or add one }

Mary August 25, 2012 at 1:57 am

I’m hoping I’m right in assuming you’re talking about patterns or already made items that she may be incorporating? You aren’t talking about raw materials such as fabric, yarns, etc? How would that work if I made something from a licensed fabric and sold it? (I’m specifically thinking teams.)

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Craft-Business-Ideas August 25, 2012 at 2:31 am

If you are in doubt, check with an attorney who specializes in copyright law. But my understanding is that if you used fabric with a copyrighted team design and resold the finished item, you would be infringing on the team’s copyright, unless you had their specific permission — which would probably entail paying them some kind of royalty on each piece sold.

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Teri September 13, 2012 at 6:37 pm

I believe from researching this very topic, that once the fabric is sold the designer no longer can control what is done with it. It falls under the First Sale Doctrine. This is a quote I took from another site dealing with this. (http://www.tabberone.com/Trademarks/trademarks.shtml)

“The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.”
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L’ANZA RESEARCH INT’L, INC. (96-1470), 98 F.3d 1109, reversed

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herman December 8, 2012 at 9:13 pm

If I go to the Fabric shop and purchase Micky Mouse printed fabric marketed by Disney, I can make a teddy bear (with my own pattern) and sell it as “made with Disney fabric.” Disney has tried and they lost a case tying to get someone to stop using their name when using their fabric and selling the completed stuffed toy. However, If I were to use the same fabric to make a “Micky Mouse” plush doll, I would be infringing on Disney’s copyright on Micky not on the use of the fabric.

Disney would have to prove that I am confusing their plush toys with mine and that that was my intent. Since they made the fabric, fair use would say I could sew some thing with it, like a plush toy. The fees for the use of their copyright would have been paid when I purchase the fabric. In fact, in the cases that have been tried, it has been hard for Disney to prove a loss of income or confusion in the product. Just because eBay doesn’t want to ‘deal’ with it, and just because Disney sends you a desist letter, that doesn’t mean that when they try to get these products removed from the market, it is fair or right. So far, the courts have agreed.

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