Quickie Guide to Copyright Law
January 31, 2010 by Lex
Filed under Articles + Reviews, Selling Handmade
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, and I’ve talked to some experts. Also, this applies only to the United States, I’m sure other countries will differ.
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, burning, 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 else’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.
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. My rule of thumb is to 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. Easy fix: Name your item something NOT trademarked, “Dress made from Strawberry Shortcake fabric” would be kind of boring, but it’d work. And then include a disclaimer in your listing that states, “This item is made from licensed Strawberry Shortcake fabric, however, I am in no way affiliated with Strawberry Shortcake.”
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 infringment 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!!
more on copyright law
copyright and small business law
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Ru on Mon, 1st Feb 2010 5:57 pm
This is soo useful! Thank you! This really clarifies a lot of things for me. One question–is it legal to imitate a garment or costume made by someone else? Like, you see a dress in the movie ‘The Young Victoria’ that you really like, so you decide to reproduce it, or create a dress based off it.
Lex on Mon, 1st Feb 2010 10:55 pm
You’re welcome, Ru!
The way I understand “Useful Articles”, which includes clothing, it would be legal to reproduce a garment like that. That’s why you see a lot of high fashion designer knock-offs. Unless they’ve got a piece of visual art or logo printed on the dress, it’s fair game.
There are certain instances where people can claim a clothing design as “sculptural art”, and that CAN be copyrighted, but I don’t think costume designs would fall into the category, even if they tried.
A bunch of wealthy, snooty designers were lobbying for the ability to copyright clothing designs about a year ago, I don’t think they succeeded. It’s a good thing, too… I have a feeling they’d run around trying to shut down smaller designers.
Louise Scott on Thu, 18th Mar 2010 6:34 pm
I am thinking of buying some dresses from a Chinese company. They are going to make them to look like the dresses of a famous dress designer. I will then be selling them on.
Will I get in trouble for this?
How do I find out if their dresses are copyrighted and if they can be copied?
I’m sure they won’t be made of exactly the same material or have exactly the same finish.
I would be great if you can help,
Louise
Lex on Sat, 20th Mar 2010 7:27 pm
Hi Louise-
At least in the US, that is perfectly legal, as long as you are not using a designer’s logo (think the Chanel “double C’s”) or something like that in the design. A dress can not be copyrighted, as it is a piece of clothing, which is considered a ‘Useful Article’.
A bunch of the famous hotshot designers tried to rally together not that long ago to try to change that. They of course spun it to suggest they were trying to protect the “little guys”, but really, I think they would have abused such a power. What would have stopped them from slapping every small designer with a copyright suit?
Lex on Sat, 20th Mar 2010 7:32 pm
I wanted to add-
You should avoid claiming the dresses to be like a particular designer, because that can get you into trouble.
For example:
“This dress is just like the Gucci dress worn by Michelle Von Fluffyhead at the Oscars.”
Gucci (or whomever) could claim that you’re using their trademarked name to sell your product, which is a no-no.
Instead you could say something like this:
“This dress is nearly identical to a high end fashion designer, but available at half the price.”
Lex on Sat, 20th Mar 2010 7:33 pm
I wanted to add-
You should avoid claiming the dresses to be like a particular designer, because that can get you into trouble.
For example:
“This dress is just like the Gucci dress worn by Michelle Von Fluffyhead at the Oscars.”
Gucci (or whomever) could claim that you’re using their trademarked name to sell your product, which is a no-no.
Instead you could say something like this:
“This dress is nearly identical to a dress by a high end fashion designer, but available at half the price.”
Alexandra on Wed, 31st Mar 2010 1:46 pm
I’d like to thank you for this article as well. Question: Could I use purchased stock imagery on paper or as internet files in items intended for resale? I think the physical paper would fall into first purchase territory, but I’m not sure about reprinting from files. How can I be sure an image is owned by the person selling it to me?
Also, I’m very glad they can’t copyright clothing designs. It seems like it would be difficult to tell how similar/different something would have to be to/from the original. It could get really nit-picky really fast and I’d hate a world where designers had too many limitations.
Lex on Wed, 5th May 2010 11:56 am
Preprinted images on paper should be okay. Again, I’m sure plenty of the companies will try to mark all over it “for personal use only”, but once you buy the paper, you can do what you want with it.
Files you purchase on the internet would be a bit different. Many people selling digital images put limitations on how you can use it… I’m not as certain about the legalities of what they can and can’t limit.
Unfortunately, it’s hard to be certain that people selling artwork/images own them… I’ve seen plenty of people selling embroidery images and such with images I knew weren’t their own work.
Anna on Wed, 14th Jul 2010 2:21 pm
What about designers who sell sewing patterns, or even knit and crochet patterns on sites like etsy, ebay, etc, who all say something similar like “for personal use only”, “you can’t sell items made from this pattern”…. doesn’t that fall under the First Sale Doctrine also? Meaning you can in fact sell an item you made from a pattern you purchased as long as you are not redistributing the pattern itself?
Lex on Mon, 19th Jul 2010 11:21 am
That is correct.
I will say that I personally wouldn’t feel right making and selling from a pattern I bought from another indie designer. Not directly anyway. If I bought a pattern and modified it, that’s a different story, in my opinion.