There are two subjects that make most brains explode: accounting and law. But for the good of mankind, I will attempt to tackle some questions regarding copyright that may be floating around your head.
Please keep in mind that I’m not a legal expert. I have researched this topic well, though, and I’ve talked to some experts. Also, this applies only to the United States, I’m sure other countries will differ. Take my advice at your own risk.
Q. You sell reconstructed band shirts, isn’t that infringing on the band/artist’s copyright?
A. No. Assuming I’m buying properly licensed t-shirts (which I am), I can do pretty much whatever I want with them. The “first sale doctrine” allows the lending, reselling, disposing, lighting-on-fire, etc. of an item after purchase. That’s why people can sell their used CDs and DVDs (and band shirts) on Ebay. As long as I’m not reproducing a band’s design or logo, I’m okay.
Q. Can I stencil or screenprint shirts with my favorite band’s logo?
A. No. Whether you are making a Rolling Stones shirt for yourself or a friend (and thus not getting money for it), or you are making 10 Rolling Stones shirts to sell (without permission from the owner of the copyright or trademark), no.
Even if you aren’t making a profit off of someone’s work, you are still reproducing it without their consent. Of course, there’s not much chance you’d get caught in either of the above scenarios, seeing as you and me are small potatoes and not worth anything to the big kahunas. But wouldn’t it be more fun (and rewarding) to come up with your own designs?
The same goes for any other reproduction methods- burning CDs, painting, embroidery, etc.
Q. But I see people selling that kind of stuff all the time…
Yeah, I know. It happens all the time. It goes unpunished and unnoticed more often than not. Like I said, there’s little chance that most companies will even notice you’re doing it. Does that mean you should do it?
In my opinion, I’d rather buy an original work than a copy or a bootleg.
Important note: The internet is an awesome resource for sharing information. One of the unfortunate drawbacks is that we are so used to all of the images, ideas, etc. being so freely available, we start taking things for granted. The same rules for big companies and brands goes for “regular” people, too. Just because you find an image you like on the internet doesn’t mean you can use it. Someone somewhere created that image.
In fact, it’s my opinion that infringing on a regular joe’s copyright is a much bigger offense than ripping off a big company like Disney. Us little guys gotta stick together!
SO, if you want to make a necklace with a cupcake on it, don’t just google “cupcake” and yoink an image you find. DRAW YOUR OWN. Or take a photo. Make it your own.
Q. I made this really cute dress with a Simplicity sewing pattern, but the patterns says, “Private Use Only”, can I sell it?
Q. I made this really cute dress with Strawberry Shortcake fabric. The fabric says “Intended for Personal Use only.” Can I still sell it?
A. Yes. That little disclaimer means nothing, and in essence, goes against the First Sale Doctrine. As long as you are not duplicating the actual sewing pattern or printing bootlegged Strawberry Shortcake fabric, you have not violated the copyright.
Caveat #1: Companies print those warnings in hopes that you’ll listen to them and not sell what you make. Some of them will also contact you with threats in hopes that you’ll quit selling your items.
I’ve been contacted by companies more than once regarding this kind of thing. Usually, when I explain to them that I understand my rights under the First Sale Doctrine, they leave me alone. There are a handful of companies (Harley Davidson, Disney, etc.) that are not so easily swayed. And unfortunately for us, when a big company like that decides to push hard, us little guys don’t usually have the means to push back. I’ll keep doing what I’m doing until I get a cease and desist order from a lawyer. (Which hasn’t happened yet… knock on wood.)
Caveat #2: Trademarks… most companies have trademarked their brand name. So they might claim that an item you’re selling called “Strawberry Shortcake dress” is a trademark violation, and they’d be correct.
Some people try to get around the trademark issue by saying their items are “inspired by Strawberry Shortcake”, etc. Some try putting a disclaimer in the listing that states the item is made using licensed Strawberry Shortcake fabric, but their shop is not affiliated with Strawberry Shortcake. Unfortunately, you’re still using the trademarked name.
Caveat #3: If you sell on a third party site, like Etsy or Ebay, your item will be removed if they receive a complaint from the copyright holder or representative, regardless of what rights you may have under the First Sale Doctrine or anything else. It is against their TOS to relist the item, so unless you can work something out with the company and get their permission to relist, I would advise not relisting the item.
Q. How do I copyright my stuff?
A. Technically, as soon as you write, draw, etc. your creation, it’s yours. You can register your work with the U.S. Copyright Office, but it is not required. BUT– you will not be able to bring a lawsuit for copyright infringement unless you’ve registered your copyright. Silly, yes?
It should be noted that you can’t copyright certain things, like “useful articles”. Examples include clothing, furniture, dinnerware, etc. This means, you can’t copyright pants, or a couch, or a spoon. You can copyright the artwork printed on the shirt, and the print on the fabric of the couch, and the ornamental design on the spoon.
Now let’s test your copyright knowledge with the copyright quiz!
UPDATE – July 2012
I’ve decided to disable comments on this article, as it’s sort of turned into a “I make ____, is that legal?” Q&A session, and that really wasn’t my intent when I wrote this article. I’m no legal expert, after all.
If you email me with copyright questions, I apologize, but I’m NOT going to answer it. I closed the comments because I don’t feel totally comfortable answering these questions. Not to mention that I simply don’t have time to answer them. Again, that wasn’t the intent of this article. If you still have questions after reading this, then I’d suggest you consult with an attorney specializing in copyright law.
So I’ll break it down one last time, in hopes that it will answer any further questions you may have:
1. If you want to be absolutely, 100% safe: don’t sell anything with someone else’s artwork, design, logo, or name on it. Whether it’s Disney or Nascar or Cheerios… whatever. It’s the only way to guarantee you’re not going to get into trouble.
2. If you still decide to sell things with someone else’s artwork, design, logo, or name on it, make sure you’ve bought a licensed product. And even then, it may not be a good idea to list these items on Etsy. If the copyright holder files a complaint with Etsy, you may risk losing your shop. It doesn’t matter that you’re protected under the First Sale Doctrine, because Etsy’s TOS is what matters in this case.
3. If you are planning on printing, painting, stenciling, etc. someone else’s artwork, design, logo, or name on something without their permission, that would be infringing on their copyright (unless it’s in the public domain, which only usually applies to very old artwork, books, etc.). Period.
This website has awesome information on the legality of using licensed patterns and fabric when creating items for sale, check it out: http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml
more on copyright law