This is a fairly common thing to see, particularly with regard to 'licensed' fabrics and particularly for fabrics more than a couple of years old. But is it actually true? Can a designer sell a fabric (or any supply) to an individual but then stipulate what it is used for? Companies like Disney, Warner Brothers, and professional sports teams all have a history of stipulating 'personal use only' on their fabrics. And, in a way, that is semi-logical as cartoon characters and team names / logos are copyright. I can't start printing my own Disney fabric. Technically speaking I can't even sell derivative works like Hello Kitty appliques I made out of felt or screenprinted t-shirts with movie names on them. But what happens if the companies themselves sell yardage of fabric featuring trademarked / copyrighted things? Can they restrict its use (which suggests that although you bought the fabric, they still have ownership) or by releasing it into the market do they forfeit their right to say how it's used?
I researched this quite a bit when I was starting out and it was even more contentious at that time. Beyond the big corporations mentioned above, even smaller fabric designers who didn't use trademarked characters or logos wanted to restrict usage. In late 2006, Amy Butler climbed down from her original limited use policy as did Heather Ross, after there was considerable uproar within the crafting community and it was pointed out that the law just did not support it. American case law says that businesses cannot restrict usage if they themselves are the ones that release it. From the First Sale Doctrine:
"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.
Added to several cases that have been brought to court and decided in favour of the person using licensed fabric, or settled out of court because the fabric supplier was most likely going to lose, it appears that it should be permissible to use licensed fabric to make items for sale. But that does not stop auctions being shut down on Ebay or Cease and Desist letters being issued. Corporations can rely on their relative wealth and size to intimidate people into thinking that they can't use their fabric for non-personal use.
But what about in the UK? I couldn't find a single court case to clarify what the position is here. I do know, however, of at least two people within the UK craft scene who have been told by a very well known British fabric brand that they cannot use their fabric for things they planned to sell. And they probably won't (as I wouldn't) because of the potential for Drama.
So what do you think about the licensed fabric debate? As far as I'm concerned, as long as you are clear that you are in no way affiliated or officially sanctioned by the company (e.g. by saying 'made with so-and-so fabric' instead of the more ambiguous 'so-and-so product') that you should be able to use fabric that you legally bought for whatever you'd like. I do feel more uncomfortable about re-purposed things, like if a designer screenprinted a tablecloth and you cut it up to make dresses. But that's just me. What does everyone else think?
Disclaimer: I'm not a lawyer so nothing I say here (or anywhere else) should be taken as legal fact. But my Dad is so I have his clever genes. I am also not incriminating myself for making the Care Bear hoodie if that was Bad Ass because Kirsty bought the fabric and hired me to sew it. Do not bother to sue me.
Further reading:
Pretty much the Bible about fabric licensing is here on Tabberone
Also, very handy 'Fabric and the Law' tag on True Up.
First Sale Doctrine doesn’t apply here, so is only of passing interest (a lot of US intellectual property law is quite different to that here).
ReplyDeleteTheoretically, it’s entirely possible that a design is licensed solely for non-commercial use. This happens in other areas all the time (photography, software, etc.). Being able to resell the fabric itself is distinct from being able to resell the design imprinted upon it, and resale (as governed by the FSD in the US) is not the same as selling a product which incorporates the material, either.
However, I'm thoroughly unconvinced that you could ever be successfully sued for it unless you were running some significant enterprise in goods bearing licensed designs without holding a valid license for commercial sale.
Plus, in the case of making a hoodie for somebody, you could argue that you're not selling the finished product, you're just being paid for the time, effort and raw materials.
@Mo: Thanks so much for your comments!
ReplyDelete"First Sale Doctrine doesn’t apply here, so is only of passing interest (a lot of US intellectual property law is quite different to that here).
Agreed. Just included US-centric stuff because there's a lot more information and about half my readers are from there!
"Theoretically, it’s entirely possible that a design is licensed solely for non-commercial use. This happens in other areas all the time (photography, software, etc.)."
I think the problem for me as that yardage of fabric is a raw supply that's designed to be made into something else in a way that photography and software is not. As far as crafting supplies, I've only ever seen limited use clauses applied to fabric. I've never seen, for example, someone who makes beads or buttons restrict them to personal use only. Or yarn. But maybe that's because I only really buy fabric!
"However, I'm thoroughly unconvinced that you could ever be successfully sued for it unless you were running some significant enterprise in goods bearing licensed designs without holding a valid license for commercial sale."
Yes, definitely! I think a lot of this comes down to enforcability and economies of scale for crafting businesses that just renders it Not A Big Deal.
Hiya,I have just pulled out my stash of this fabric as i was totally unaware of any license on this fabric. i was worried as i've sold a couple of dresses too! Eeek!
ReplyDeleteBUT.. i don't have any of the wording you have on mine???
mine says "Care Bears TM 2003 the characters from cleveland, Inc. Used under license by Cranston Print Works Co. for V.I.P Fabrics 100% cotton and printed in the U.S.A http://cranstonvillage.com"
i dont see anything that says its not allowed to be used for "not" non commercial use???
i may be wrong?! but I would have been hesitant to use it if it had.
I bought some HUngry Caterpillar fabric on the basis to seel pre-made dresses, but the fabric clearly stated on that that i couldn't so i made gifts with it instead.
I'm a total airhead when it comes to anything legal, so i couldn't comment on the rights and wrongs?!
but i would have thought that you making the hoodie and being supplied tha fabric would be completely legal!! :-)
Not sure about TCFC I know Disney in particular do go after the 'little guys' sometimes. There was a daycare in Florida that had (drawn by someone there I assume) Disney characters on the walls and Disney asked that they take them down... Though when the case was publicised Universal allowed the daycare use of their characters, ha =P
ReplyDeleteI've always assumed (with no basis in any fact) that they put that on there to give them room to go after bigger players. For example, it would be a big deal if Target (or some UK big box store) bought a bunch of fabric, contracted out to some other big player and then started selling shirts.
ReplyDeleteAs to @Lizzy's comment on the day care, it's not really the same thing. In that case they used the characters by themselves without permission or license. A more equivalent case would be if they had sewed up some Disney fabric into curtains for the day care. It was ridiculous of them to sue, but they had more of a case there than in a fabric use suit.
I also don't know if any other license owner is as rabid about that sort of thing as Disney. :)
I use recycled fabrics for my designs so often use supposed copyright fabrics for items. My take on this is that I have bought the fabric in good faith, at no point in the sale, even of new fabric bought online, is it ever pointed out to me that I have license restrictions. Consequently, I have no such agreement with them and feel I can do as I please with the fabric, as long as I do not claim it to be a 'so and so' dress - I usually call it a dress made with 'so and so' fabric. I stick to my conviction that I cannot be made to adhere to a licensing agreement that I never made before purchasing.
ReplyDeleteHowever, as a moderater of a parenting site I regularly remove wahm adverts for items copied from copyright characters - that is a clear breach of copyright laws (similar to the painting described previously). I would not dream of copying a character on my embroidery machine. But using bought fabric is not copying.
Oh, and being a small player definitely doesn't stop litigation or at least threats. At least one friend was told (quite rightly) to stop describing her fabric product with a company's name. And I myself received a cease and desist letter from a very well known car firm asking me to not use the name of their high class car to describe how good a wool wrap was - I duly complied and apologised as they were in the right.
Oh, and I'd have no problem cutting up the designer tablecloth ;)
ReplyDeletenever heard of anyone going to prison for selling something made with licensed fabric. what is the point in manufacturing the fabric? why bother?
ReplyDeleteMy son wants to work with some fabrics to make items to sell on and he particularly likes Pac-Man type designs. He is in the process of sourcing fabrics and I raised the issue of copyright with him before he spends his own hard-saved money on his stock. He is more interested in the actual designs than profiting from the fact that it would be Pac-Man or Star Wars but I do not want him ending up in trouble. Ebay is an obvious outlet for people starting out so would be interested in anyone's recent experiences in this area. Many thanks.
ReplyDeleteAs far as I know it's not a case for criminal law unless you are selling goods that represent the real product/fabric and are claiming it to be the real deal when it is not. This would be the equivalent of selling counterfeit goods. If you have bought the licensed fabric and make it into another profitable (or non-profitable) product this would come under civil law based on infringement of a licence agreement. If taken to court, you will be fined and goods may be seized, but you cannot be criminally prosecuted/imprisoned for the offence. However when you purchase fabric, if you have not entered into a use agreement you are generally able to use it and sell it as you wish. I could be wrong, but from my own research that is what i understand to be true.
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