Please help! Copyright query

[#1]

I received a message on here from someone claiming to be from Eric Carle Studio saying that I can no longer sell skirts I've made using The Very Hungry Caterpillar fabric. As I have paid for the licenced material, I assumed I would be free to do what I wanted with it. Can they actually make me stop selling them? I've got 3 for sale at the moment and I've only just bought more fabric in order to make some more. I'd really appreciate any advice, I don't know what to do!

[SelkieCrochet]

Emily Griffin from griffinwolf2008 says

Unless they complain directly to etsy, don't bother taking it down.

------------------------ I'm sorry but this is just BAD advice!

I'm really glad you've done the right thing and are going to take the listings down -- I would imagine that your Disney Nemo skirt would be the same....

They were very kind to send you an email before they took action - I would take it very seriously as they will probably keep a close eye on your shop to see if it happens again in the future.

It just isn't worth losing your shop over something like this.

[Former_Member]

"Almost all printed fabric will be copyrighted. As you cannot just go and make Amy Butler fabric purses if you feel like it, because Amy Butler owns the rights to the design and the fabric itself most likely."

Actually, Amy Butler very kindly does allow you to use her fabrics to make and sell items. But, she only allows you to use her sewing patterns for personal use.

[Former_Member]

Unfortunatly, it IS very common for some fabric designers to chase after everybody- Disney was really big on that bacvk in the mid 90s, a lot of fellow crafters at the shows I was doing would have to pull all of their merchandise b/c they had tons of little girl dresses, accessories, dolly outfits, etc made with Disney fabrics. Some fabric designers do not have such strict regulations about the use of the fabric and some do. If you are buying fabric and are planning on using it for projects you are selling, do a quick check on the website or call the fabric company and ask what you are allowed to do with it; some will let you use the fabric to make up to 5, 10, 20 items for re-sale, some will not allow any fabric to be used it cottage industries (which is what most Etsy sellers are; home-based cottage industries) andsome will alow you to use it in your business so long as you pay for a liscense.

[Former_Member]

This is from Amy's website in the faq section:
"Questions about Amy's fabrics:

If I design sewing patterns or sewing books can I use Amy's fabrics?
Absolutely! We would love it! Just as a courtesy, if you could mention on your pattern or book that you used Amy's fabrics that would be greatly appreciated. Please let us know if we can help you get some complimentary yardage from Rowan for your project. We'd love to help!

Can I use Amy's fabrics to make projects to sell or use in manufacturing finished goods?
YES.

Why does it say "For Non-Commercial Use" on Amy's fabrics?
Everyone is free to use the fabrics for manufacturing. The text on the fabric selvedge will be removed in future printings.
To set up a wholesale account and to place a wholesale order, please contact customer service
TOLL FREE: 866-907-3305 FAX: 864-877-3269
EMAIL: kimberly.porter@westminsterfibers.com

Can I use Amy's brand name(s) or logo on my products, "Amy Butler", "Amy Butler Design" or "Amy Butler's Midwest Modern"?
This question just came up from a manufacturer yesterday, and it's such a good question, thanks everyone for your inquiries. Please always check with our studio if you have any other questions relating to brand name use, we are happy to help any way we can.

The answer is no because Amy's name and logo in all forms is a trademarked brand name. Amy's various trademarks have been registered worldwide and it would be illegal to reproduce her name or logo on any product. If you are using Amy's fabrics to make or manufacture products, using your brand name would be the very best way to go to promote your talents and goods.

Can I use Amy's print artwork (from the fabrics) to reproduce on other items?
Sorry, but No. The artwork on the fabrics is protected by copyright. Amy licenses her artwork to be used on other items such as paper products, stationery, etc.

THANKS EVERYONE FOR YOUR ENTHUSIASM IN USING AMY'S FABRICS!"


(and Christina, your skirts would be adorable in her fabrics)

[MythOfTheWild]

You'd need to have permission from the writers, illustrators and publishers, at -least-, to be able to sell them. They would need to be officially licensed products. A lot of these things are fine for people to use for personal things at home but not for sale.

[MythOfTheWild]

Christina from Interrobangirl says

I haven't replied to the message yet or deactivated the listings, I went straight to Etsy support. Surely me selling these skirts can only benefit their company, I'm paying for the fabric and providing a kind of free advertising for them. I'm really disappointed, I felt like I was starting to get somewhere - this is my USP!


In some cases I can see why you would feel this to be true, but if products feature an illustration or wording that wasn't intended for such use then it falls to the original artist. The fact that fabrics let you know what you can and cannot do with them should clear it up and you really ought to check such things out -before- purchase if possible.
You are advertising them, in a way, but they make nothing from it. And you may also buy the fabric from them - but they're only getting the money from the fabrics. They're not getting royalties from the product itself.


And either way, a lot of items specify that they cannot be resold. You might be able to buy them and use them but you cannot reproduce or sell them, even if they're not in their original condition - ie fabric turned into a cushion or something. I hate to say it but you're in the wrong, here. You really ought to get back to them and deactivate the listings. Cut your losses and learn the lesson.

Unfortunately a lot of people on here sell items with Mickey Mouse and Tinkerbell on them and I'd bet a lot of money that they don't have any rights to. It's just that some people get found out while others don't - that's not to say you should take your chances. These might be big companies, but copyright exists for a reason. I wouldn't want to design something and have it turned into fabric in the first place like this, but the original designer is let know about the terms of the product and that's the only reason it's allowed to go ahead. The designer may sell their designs but the contract they sign probably stipulates how involved they can be afterwards.

These fabrics are designed for mums to make nice decorations for their children or themselves.

[MythOfTheWild]

And one last post, I hate to be a stickler, but it sounded as if you'd taken the skirts down, but I can still see them in your shop. It honestly is best to remove them ASAP, it's no use keeping them around hoping you might be able to sell one last one. They have the ability to sue you should they want to, especially as this whole public post can be used as evidence that you have read their message and continued to sell them.

The suggestion to remove them really is for your own good.

[sunshineandvodka]

I had to get permission from the manufacturer to use their Fruit Ladies Fabric shown here. They were super nice but I hadn't noticed until it was too late that the salvage edge said "not for commercial use or distribution". Once I sent them the product picture and my shop information they approved the use of my resale of it. But if it's copyrighted, you do need permission to "sell" anything using their product.

http://www.etsy.com/listing/88434681/zippered-purse-pouch

[Foxery]

Take them down immediately is the best and only advice you should listen to.

If you asked someone nicely to do something really important, and that person ignored you, you'd be mad, right?

Ignoring the request from the copyright holder is going to make them mad, and the next step they take wont be a nice request as they have kindly done this time around. They will have solicitors who represent them here in the UK who will act on their behalf, and they have the law (and money) on their side.

[WintergreenDesign]

They've provided very helpful information on their site... I would not continue to have them on sale in your shop... don' t make them ask you twice...

http://www.eric-carle.com/generalcopyright.html

[SelkieCrochet]

Kim Wedlock from PeachesandPebbles says

And one last post, I hate to be a stickler, but it sounded as if you'd taken the skirts down, but I can still see them in your shop. It honestly is best to remove them ASAP, it's no use keeping them around hoping you might be able to sell one last one. They have the ability to sue you should they want to, especially as this whole public post can be used as evidence that you have read their message and continued to sell them.

The suggestion to remove them really is for your own good.

------------------------------------------------------------------

wow I'm kind of surprised that the listings are still up too

[Interrobangirl]

I've replied to the original message as Etsy Support havent got back to me yet. I've asked if there's any way of getting permission to continue making and selling these skirts, I've also apologised for having sold a few without permission but explained that I didn't realise.

Thanks for all your help and advice guys, I'll definitely be checking things like this in future!

[Former_Member]

Let us know how it goes.

[KatGurumi]

Rosemary from SelkieCrochet says

wow I'm kind of surprised that the listings are still up too

^^^ ThIs.

[WintergreenDesign]

Hi Christina, I don't believe that Etsy support would help you with this situation... the Eric Carle Studio contacted. If the Eric Carle Studio contacts Etsy about this situation it is possible that they could shut down your shop... Etsy is only able to help the copyright owner. To be safe you should take them down until the Eric Carle Studio has contacted you back... the information you are wanting is on their site...

"While you may create based on Eric Carle’s work, you may only do so for your own personal use and may not distribute patterns or make duplicates for distribution or sale."

Best of luck.

[Former_Member]

I'm also surprised your listings are still up. I can see why you are hesitant to take them down given that 5/7 of your sales have been for items using Eric Carle's print... but he can sue you. And getting a lawyer is going to be a financial disaster for you and I really don't want to see that happen. :(

I'd also really recommend that you consider taking down this item unless you have express permission from Disney to sell their fabric. http://www.etsy.com/listing/94460843/ladies-knee-length-skirt-made-using

Disney is *especially* vicious about defending its copyrights, and they have literally sent families into financial ruin without care. They've shut down family-run ice cream shops and even small home entertainment businesses and I guarantee you if you haven't yet run afoul of them, they will be after you soon. Eric Carle's company sounds really wonderful and compassionate, but Disney is nothing of the sort. :(

[Former_Member]

I studied media law and copyright law in college. Once you modify an item (such as in Warhol Art...Campbells soup etc) it no longer has copyright protection. There is such a thing as artistic license.

I know of an artist who used the first letter of each well know corporation, fashioned the letter after their corporate logo and created his own brand using a mash-up of each well-known brand. Perfectly legal.

I think what is in question here is the use of the name, which you are not authorized to use. You can take the fabric, cut it up into little pieces and create your own work and there is nothing illegal about it.

But once you start using the name of a well known person ( or a person who has branded their name) in your creation, then you're falling into the dark pool of infringement.

There are many grey areas as well.

For eg. A few years back Paris Hilton wanted to place a copyright on one of her catch-all phrases and prohibit others from using it and/or pay her a fee to use it.
The application was rejected in court because the judge deemed the phrase to be too general. Meaning many used the phrase in everyday speech so it could not fall under copyright protection.

Just because some uses a common item such as an animal or phrase, does not mean they can lay claim to a copyright. They can lay claim to their brand or namesake. But even then, I'm not sure someone could copyright John Smith as a brand simply because this name is so common. There would have to be a variant in order to make it unique enough for a copyright.

In the end, if you are willing to challenge the use of materials, a lawyer is necessary. I think the letter you received is implying just that: If you want to use my "product","brand" or "namesake" be prepared for a legal battle. Which is enough to make everyone nervous.

Not saying its right or even accurate. That is for a court to determine, but is it really worth the hassle and expense?

That's the real test of wills being put forth here.

[Former_Member]

That is ridiculous, they shouldn't be allowed to say you can't use it. If your making your own creation out of it, it shouldn't be a problem. I hope everything works out though!

[Former_Member]

Part of what Alex says is true but if the fabric manufacturer has a copyright posted (on their website or basically any public place) even if you did not see or read it you must adhere to their copyright. I would look on their website to see what they have if you are selling based on their name that may be a copyright issue. Using patterns to make items to resell...even with changes infringes copyrights since most patterns only allow 5 to be completed per year by the purchaser.
I would suggest a lil research into what is copyrighted...talk to the person who sent you the letter. Pull the item till you find out what changes to your ad need to be made or get permission to use the item from the owner of the copyright.
You wouldn't want someone to copy what you created and make money from it...

[WintergreenDesign]

Hmmm.... I don't think it's completely ridiculous Sarah.... if I took something that you made and licenced... cut it apart and then put your title and name on my creation I think that would probably upset you... it would me. It's not enough to just claim that you're not affiliated with the man or the corporation. I think she should be able to make the skirts with the fabric but she should not be using his name or his book titles to sell her products.... but that's just my opinion : )

[Former_Member]

You're right Christa the namesake is protected and this may be what's at issue here. Also with recognizable original character creations such as Disney or Marvel, or D.C. Comics; they are also protected.

Everyday things such as rabbits,dogs, birds etc. do not fall under copyright protection as there is nothing proprietary about them. UNLESS there is a variant that makes them unique to the creator. Such as Bambi, Nemo etc.

Copyright laws change all the time and it's difficult to keep up. Many corporate entities have been challenged (even Disney) and lost.

Many have gone broke doing so... look at the band who wrote "Bittersweet Symphony". Just because it "sounded" like the beginning of a Rolling Stone song from the 60s Mick Jagger challenged it and the judge upheld Mick's view.

The band had to give every penny to the Rolling Stones plus pay a royalty every time it plays on public airwaves. The band never made another penny...blasted into the ether.

It takes money and lots of determination to challenge these things. Sometime the little guy wins, sometimes the big guns win.

The question is: Is the art or creation worth the battle?

[Former_Member]

From what I've heard the Eric Carle Studio is very protective of the Hungry Caterpillar. There was a seller who made party supplies (invites, banner, etc.) using the Hungry Caterpillar and sold it here. She posted on her blog that she received a letter from the Eric Carle Studio. After some research she found out that they contacted everyone on Etsy selling the Hungry Caterpillar at the same time she was contacted. I came across her blog because another seller had mentioned that they received the letter at a later time and doing their research they came across the party supplier.

[Former_Member]

Oh and I also forgot to add copyright protection is not universal. Each country has their own set of laws so worth doing some research.

I read a few years back there is an attempt being made to create a universal standard but not sure how far it has progressed.

Also too there are time limits to copyrights. Believe it or not some icon stuff has lapsed in to the public domain.

[Former_Member]

Not to beat a dead horse but I found this from Answers.com:

First Sale Doctrine is an accepted legal defense.

The basic premise is simple. Once the manufacturer of a copyrighted item releases it into the open market the copyright holder loses control over what is done with the item.

Generally the company/manufacturer who holds the copyright will try to use trademark laws to prevent items such as material from being made into articles of clothing or whatever it may be, and sold by private consumers.

However, trademark laws only apply when the seller deliberately presents the article as being original or creates the impression that it is an original (knock off's).

An example is the Disney Corporation recently attempted to sue a single mom who earned extra income by using Disney fabrics to make pillows to sell at craft shows. The court ruled that the woman in no way infringed on trademark rights and could continue her pursuit and ordered DC to pay all her legal costs and damages.

Common sense should prevail in such situations, obviously you cannot copy DVD's as trademark laws apply. You may however buy material with soccer balls, baseballs, team logos, etc. and make pillows, etc. as long as you do not try to sell them as original NFL, NBA, NLB and so forth products.

FYI, companies and organizations will ALWAYS tell you it is illegal.

Info on the First Sale Doctrine:

http://en.wikipedia.org/wiki/First-sale_doctrine

So it seems as long as you are NOT claiming to be the official licensee or creator of the material, it's ok to sell your goods.

Might be a good read for the Etsy team and to keep this info in their back pocket!

[WintergreenDesign]

Well if ever I write a famous children's book I will know not to make fabric out of the art work... lol...