Upcycling with copyrighted/trademarked items

[TangleCrafts]

I saw a couple of threads in the main forums about upcycling items which include trademarked images/text, or are in current copyright. While a lot of the discussion is speculation, some facts are also buried there, so I thought it might be useful to bring the discussion up here as well. Please feel free to link to any additional relevant discussions, add any comments or info you have discovered during the course of your own work or that may be potentially helpful to other team members, or ask any related questions.

N.B. I'm no expert on this subject, so apologies in advance for everything I have no clue about; I just thought it would be worthwhile to raise awareness of the subject given the theme of our team...

[TangleCrafts]

A post by Allyn from knitwit4ever, in response to a question about altering a bought Disney blanket (but also applicable to other upcycled items):

“You bought a Frozen blanket, then re-sold it (not on Etsy) unchanged? OK
You bought a Frozen blanket, embroidered it and kept it? OK

You bought a plain blanket, embroidered a Frozen detail and sold it? Not OK
You bought a Frozen blanket, embroidered it and sold it? Not OK

You used the term Frozen in titles or tags to advertise your blanket listing? Not OK unless it was the re-sale of unaltered licensed merchandise (first choice above) and not on Etsy because it isn't vintage or supply.”

(Read full discussion here: https://www.etsy.com/teams/7718/questions/discuss/15742347/page/1)

[TangleCrafts]

From posts by Matt of FullThrottleBottles, who received an email directly from Jack Daniels, specifying exactly what can and can't be done with regard to upcycling their bottles:

“"What you may not have realized is that the Jack Daniel's brand name, distinctive bottle shape and label design are all registered trademarks (the "Marks"), and that your use of the Marks in connection with your upcycled products causes significant trademark and product integrity issues.

The trademark issue is this: over the years, it has been our experience that when the Marks are used in situations like this, it leads people to believe we have somehow licensed or endorsed your business or the particular product when, in fact, this is not the case. As a result, consumers can be easily misled and problems with your product associated with us. If we allow this type of use of our Marks to continue, we would not only encourage other, similar products, we would be putting our Marks at risk, something that could be damaging for any business. ​

The product integrity issue is that our bottles are not designed for anything except for one purpose, containing our famous Tennessee whiskey. They aren't designed or tested to be used for secondary purposes, especially where reheating, cutting, etc. are involved. Because of this, we don't re-purpose them and don't believe it is safe for others to do so either.

For these reasons, we believe that the best place for our empty bottles is actually the recycle bin - however, if you would like to continue to produce upcycled products using our bottles, we kindly ask that you follow our attached guidelines.

Finally, I want to assure you that you have not been singled out in any way. In fact, in any given month we find ourselves having to request the removal of hundreds of similar products from e-commerce websites such as Etsy, Amazon and Ebay. We do this to help ensure that Jack Daniel's will mean as much to future generations as it does today. However, just as the police aren't able to issue a ticket to everyone who exceeds the speeding limit, we do not always have the bandwidth to deal with every infringing product."

Here are the JD product policy guidelines for use that was sent to me in the PDF from the same person who sent me that email:

Jack Daniel’s® Upcycled Products Policy
If you would like to use our bottles to create new, non-branded products for re-sale (referred to below as the “Upcycled Products”), we kindly request that you follow these simple guidelines:

We have no objection if the Upcycled Product does not visibly display our label or any part of the bottle that bears our trademarks (the “Marks”). For example:

No objection: a pendant made from the lip or slice of the neck of a Jack Daniel’s bottle – as it bears no branding; or a candle holder made from the bottom half of a Jack Daniel’s whiskey bottle, i.e., the portion of the bottle used is below the place where the JACK DANIEL’S signature is debossed in the glass.

Objectionable: a candle holder made from a Jack Daniel’s whiskey bottle where the portion of the bottle used includes the JACK DANIEL’S signature debossed in the glass. The name of any Upcycled Product cannot contain any of the Marks. For example:

Correct: “Whiskey and Cola Necklace”
Incorrect: “Jack & Coke Necklace” or “Jack Daniel’s cheese board”Jack Daniel’s® Upcycled Products Policy Reference to the Marks may, however, be made on the packaging or in accompanying advertising or promotional materials in order to explain the origin of the glass in the Upcycled Product provided that the use is only of the word mark Jack Daniel’s (no use of the logos, labels or the bottle) and no larger than any of the other general text on the Product packaging or materials. For example:

“This product has been made from a recycled Jack Daniel’s® Tennessee whiskey bottle”
If you do use the Marks as permitted above, please also do the following:
 Add this legend if space permits: “Jack Daniel’s is a registered trademark and is not involved in or affiliated with the production or distribution of this product” and
 Use the well known “®”, e.g. “Jack Daniel’s® Tennessee Whiskey”, etc.
Other than as specified above, please do not use our Marks on or in connection with the Upcycled Products.”

(Read full discussion here: https://www.etsy.com/teams/7718/questions/discuss/15875454/page/1)

[TangleCrafts]

The Jack Daniels info above is great to use as a guideline, but please remember that different companies may have different policies about how you can or can't use their products. If in doubt, find a contact button on their website, send an email and ask!

[TangleCrafts]

From post by GreyBrocket in response to a question about upcycling book pages:

"* Published before 1923 - now in public domain

* Published from 1923 to 1963 - When published with a copyright notice © or "Copyright [dates] by [author/owner]" - copyright protection lasts 28 years and could be renewed for an additional 67 years for a total of 95 years. If not renewed, now in public domain.

* Published from 1923 to 1963 - When published with no notice - now in public domain

* Published from 1964 to 1977 - When published with notice - copyright protection lasts 28 years for first term; automatic extension of 67 years for second term for a total of 95 years.

* Created before 1/1/1978 but not published - copyright notice is irrelevant - copyright protection lasts for the life of author and 70 years or 12/31/2002, whichever is greater

* Created before 1/1/1978 and published between 1/1/1978 and 12/31/2002 - notice is irrelevant - copyright protecion lasts the life of author and 70 years or 12/31/2047, whichever is greater

* Created 1/1/1978 or after - When work is fixed in tangible medium of expression - notice is irrelevant - copyright protecion lasts for the life of author and 70 years based on the the longest living author if jointly created or if work of corporate authorship, works for hire, or anonymous and pseudonymous works, the shorter of 95 years from publication, or 120 years from creation."

(Read full discussion here: https://www.etsy.com/uk/forums_thread.php?thread_id=5785091)

[TangleCrafts]

Some further clarification from GreyBrocket, specifically in relation to using images from books:

"It's okay if you're 'commenting' on the image--then it's fair use.

For a really simple example, I could alter an image of a major piece of art that was created last year as long as I was using it for commentary.

But if I'm just using it because it looks pretty, no dice.

Like, not okay is a t-shirt with Hannah Montana on it. Okay is a t-shirt with Hannah Montana with a big NO sign over her face."

(Read full discussion here: www.etsy.com/uk/forums_thread.php?thread_id=5785091)

[TangleCrafts]

A Wikipedia list of copyright period lengths in different countries:

http://en.wikipedia.org/wiki/List_of_countries'_copyright_lengths

[TangleCrafts]

A response from a company called Tree Change Dolls re. tags/titles allowed for similar upcycled (etc) dolls:

"Can I sell my own madeunder dolls?
If you want to sell your own recycled/upcycled/madeunder/madeover dolls then I have no objection. I ask that you do not use the name Tree Change Dolls™ or use the name Sonia Singh in relation to the dolls or other items you are selling. This includes in the listings or descriptions of your own dolls, or as hashtags enabling people to search for your own dolls. You may not use the name Tree Change and doll together as we have trademarked this term."

Read full forum discussion here: https://www.etsy.com/teams/7718/questions/discuss/16095007/

[SquintyStuff]

Very useful! I had a run-in with LEGO® last year! (although the lawyer was very nice!) Sadly, I've had to remove that word from my titles and replace it with 'plastic bricks' but I can still use it in my tags as that's what people search for. Even sadder, I've not sold a single item made from LEGO® since I had to change it all :(

[TangleCrafts]

To be honest, I'm surprised you're allowed to use it in your tags; but I'm sorry you've lost sales. Thanks for sharing your story - it really is better to be safe than sorry!

[TangleCrafts]

Did you know the phrase 'shabby chic' is trademarked, and you therefore can't use it in your tags & titles? Here's the info from the Shabby Chic website:

“All names, logos, images, trademarks, service marks, copyrights, brand identities, characters, and graphics appearing in this site, except as otherwise noted, are protected intellectual property of, or used with permission or under license by, SCB. In particular, “Shabby Chic,” “Simply Shabby Chic,” and “Rachel Ashwell Shabby Chic Couture” are trademarks and/or registered trademarks of SCB. All trademarks appearing on the Website are the property of their respective owners. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any of SCB’s trademarks, service marks or trade dress, and our trademarks, service marks and trade dress may not be used in any manner for any purpose without our express written consent in each instance. You are also advised that the SCB will aggressively enforce its intellectual property rights to the fullest extent of the law, including criminal prosecution, for any violation of the above.”
This is just part of a long terms -of-use-Racel Ashwell Shabby Chic @ this URL :http://www.shabbychic.com/terms-of-use. The official site home page is : www.shabbychic.com"

There are many discussions about this on the main forums; here is just one of them: https://www.etsy.com/teams/7718/questions/discuss/15878327/

I've started a separate thread specifically for this subject, if you want to add any thoughts: https://www.etsy.com/uk/teams/19773/upcycle-uk/discuss/16157544/

[TangleCrafts]

A really helpful thread about crafting with beer bottle caps, including lots od practical suggestions to avoid trademark infringement. Also includes advice from a seller with first hand experience of Lego legal issues:
https://www.etsy.com/teams/7718/questions/discuss/16287514/

[SquintyStuff]

An interesting read ;)

http://ukartsdirectory.com/artist-ai-weiwei-hits-out-over-lego-censorship/

[TangleCrafts]

That IS interesting, Lynne, thanks for the link! We already knew that the Lego trademark couldn't be used in connection with artistic works made with lego, but this article implies that the use of Lego at all has been disallowed (irrespective of whether the brand name Lego is used) due to the artist's intention to use it to make a political statement...

Here's another (unrelated) discussion from the public forum about infringement & use of trademarked names with regard to altered items:
https://www.etsy.com/teams/7718/questions/discuss/16996623/

[TangleCrafts]

Discussion about upcycled beer bottles:
https://www.etsy.com/teams/7718/questions/discuss/16996614/

[TangleCrafts]

Forum discussion about upcycled book pages:
https://www.etsy.com/teams/7718/questions/discuss/17007219/

[TangleCrafts]

Forum discussion about upcycling Disney figurines (relevant to upcycling anything with a trademark/brand name):
https://www.etsy.com/teams/7718/questions/discuss/17421404/

[TangleCrafts]

Heated debate about altering paintings found in thrift shops (etc) and the legalities of making prints of the altered artwork:
https://www.etsy.com/teams/7718/questions/discuss/17430281/page/2

[TangleCrafts]

A good discussion about using (& naming) branded bottle caps in upcycled art:
https://www.etsy.com/teams/7722/discussions/discuss/18190379

[TangleCrafts]

A public forum discussion about upcycled china plates & brand names:
https://www.etsy.com/teams/7718/questions/discuss/18196517/

[sevenPMstitches]

So helpful, thank you!

[TangleCrafts]

Thanks for reading, Eva! :) I think it's an area that a lot of shop owners don't think about (until they are contacted by a trademark holder!) so hoping that providing this information will help people to think twice...

Forum discussion about upcycled book art:
https://www.etsy.com/teams/7718/questions/discuss/18257163/

[SquintyStuff]

This just popped up on my FB feed...!

http://www.newsroomsutton.co.uk/?p=1932

[TangleCrafts]

Thanks for that link, Lynne.

Here's a public forum discussion about upcycling children's book pages into cupcake wrappers (& related copyright issues):
https://www.etsy.com/teams/7718/questions/discuss/18265727/

[TangleCrafts]

Public forum discussion about painting on book pages:
https://www.etsy.com/teams/7718/questions/discuss/18273202/