copyright infringement?

[BAD HIDE]

I use a lot of patterns that I've acquired over the years form various points. Each of those patterns did come from a printed document. Tandy had the "Doodle Pages" back in the day and offered it to everyone to use. Not copyrights of any sort. Using the cell phone case from Tandy as your own pattern is not infringing on any copyrights because if go and look in any country/western stores, you will find cell phone cases that are almost identical to Tandy's. If you change any portion of the pattern, its yours. Plus, I can only assume that you are not selling it as a "Tandy Original". No true leathersmith will every do that!! I make key fobs for some local colleges fraternaties. I use a fleur di lis stamp and put the colleges letters under it and use "like" colors when staining/painting. Those fobs sell like hot cakes. I DO NOT advertise the product as "official" collegiate products. It is something that I have come up with and ANYONE can do it. The only thing that I claim as official is the leather I use and myself, a leathersmith.

If you do not use the terms "Official Gear" or "Lisenced Products", you are in the clear. If you change ANY portion of a drawing or pattern, you are in the clear. Just don't change a color and hope for the best. Use your craftsman brain and make a change that will make a product better. I've enjoyed making changes to patterns and I have found that lots of other people like it as well.

Good Luck!!!

Well, if you make the argument that what your producing is a fashion accessory - wallets, purses, holsters, boots, bags, etc. - have no fear. There is no such thing about copyrighting a pattern for an accessory or article of clothing. It was decided a long time ago that you couldn't copyright fashion, or else someone would've gotten the copyright on basic utilitarian items, like an ordinary T-Shirt, and every company who made t-shirts would have to license through them. And it still holds true today, where designs on the runway in Milan are essentially fair game for anybody to recreate and sell. Affordable but hip clothing stores, like Areopostale and Urban Outfitters, are built on ripping off designers. You can make cell phone cases that are absolutely identical to Tandy's, down to the stitch, and as long as there's no Tandy logo on it, you can make thousands.

Logos are a completely different story, which is one reason why big designers like Gucci and Louis Vuton put their logo all over everything - it's more obviously a knock off if 90% of what makes the bag unique is the hardware and pattern stamped onto the outside is all logos. Knock off guys will just alter the logo a touch, like Niikes or SQNY, and make nearly identical products. Simple fact is, you can't put a logo that isn't yours on your product. If a Harley guy wants you to put an emblem on your work, that's getting into officially licensed product territory. I might do it quietly as a custom one-off, but I wouldn't be advertising it or making inventory with it.

Recreating artwork is touch and go. Redrawing an image or recreating it in another medium makes it your own, but it's still kinda low to turn around and print it on thousands of items. The more something is copied, the more it becomes a piece of folk art and part of public domain. "End of the Trail" is a pretty famous image and theme, so even though the original artist had no intention of seeing it as a statue or on a belt buckle, he licensed or allowed enough people to copy it without litigation that it's no longer his alone. Which is why Disney goes after anyone using their characters, if you let a few people slide, it opens the floodgates and sets precedent that it's ok.

As an artist, I've caught a company using a piece of Tattoo flash that I drew as a border/background for their advertisements - one clearly had my signature visible in the corner. I drew it, copied it and sold it to plenty of tattoo shops with the intention of allowing tattoo artists to make money off of the design, but in no way did I authorize it to be used as an ad. I went after them with a cease and desist letter and a lawyer, which the settlement barely paid for and the headache and stress weren't worth it. But if you want to keep your artwork your own, you can't let that stuff slide. I've been asked many times to tattoo artwork onto people, and it's pretty much the only exception I know of. The tattoo is a work of art in itself, can't be reclaimed, and the only person profiting is the tattoo artist but for only a single piece.

[Lasse C]

At least in Swedish law, you need to achieve a certain "level of originality" to claim copyright. In fact, there are several designers/authors/you name it who make copyright claims that would never hold in a courtroom. On the other hand, obvious plagiarism (apart from being bad form and poor craftmanship) will sooner or later get you in trouble. As someone here wrote: Don´t risk it.

Taking a bit of a design here and a bit of a design there is another thing!

As someone once put it: "Ripping of an entire design is plagiarism and illegal. Stealing little bits from many designs is research - I do a lof of research"

Lasse C

[paulburnett]

Dave and interested others: Just being an employee of a company doesn't mean it is okay. About 30 years ago I was asked by a district manager to make 12 buckles for Texaco to give to his junior managers. He also had one made for his boss, which he gave to him. About two weeks after he picked up the order he came by the shop and asked that I not make any more "pleeeeeeeeeese!!!". He said I almost lost my job over this. I didn't suffer any consequences. You really need to get written permission by one authorized to give the permission, especially where trademarks are concerned.

Russ,

That is not much of a grey area to me....he made an object and put a Harley emblem on it....yeah Harley made the emblem but putting it on something he made IMPLIED that it was an official Harley product. DONT DO IT. Good way to get in trouble.

If a customer asks for a Harley emblem on something, he better be from Harley Davidson. If he isn't from HD....politely decline the job or try to encourage him to be creative or let you be creative.... I do it all the time.

Unfortunately, there are many bikers out there who don't have a creative bone in their bodies. Beeze here on LW is an outstanding exception...as are many others...Shirley... etc. Mostly bikers want something they saw on Joe Schmo's bike. Show them some of your creative work....you can lead them where you want them to go.

Dave

Edited September 30, 2010 by paulburnett

[Laurie]

Interesting topic. When i 1st started in leather, I went thru the harley clothing/jewlery pages of EasyRider & such, to find new ideas. Yeah, very wimpy way to come up with ideas but its exactly what I did 20 yrs ago. I didnt "copy" the clothes at all, wasnt knowledgeable yet enough to sew like that. I did take the keyfobs, earrings, bone necklaces, sh*&it like that. I had aquired enough catalogs to buy all my hardware in bulk for such, and had leather enough. I'd sell these almost exact replicas in unauthorized bike shops' at 1/3rd the cost of having those that had the Harley emblem on them, and for the most~part stronger made pieces. I'd buy in bulk the hardware to reproduce those pieces. and use heavy screwback conchos or whatever that in my oppinion back then had more personality than off-the-shelf HD sh*t didnt.

I do not do that anymore. Its too easy to replicate mass produced, over~reproducted pieces. The guy next door is making the same exact thing so why even bother to "reproduce without infringing on others' copyright" ?? Its a good way to practice your leatherworking but I highly suggest that ya dont put that kinda work out in quanity. It gets embarrassing 15 years later when ya go back to a state where yer young work is still in existance!

[randyandclaudia]

Hello Everyone . . . I haven't posted in a very long time. Hope this finds you all well and happy! Just read through this thread and it reminded me of an experience I had with Harley Davidson on this subject. Claudia and I created a very cool denim and inlay / overlay leather jacket for one of the largest Harley dealers in United States who had close ties to the "people who make the decisions." (I will not mention the dealer) Claudia and I never heard back from them despite numerous phone calls. Three months later our design, NOT in inlay / overlay BUT screen printed was in every Harley Davidson dealer on the planet! I could literally lay my patterns over the screenprinting and they would fit perfectly. They sure are hellbent that the little guy doesn't make a dime on their logo or designs, but when they see a money making opportunity they're all over it. Do you think I have enough money to slam the hammer down on them, PLEASE. This took place many moons ago and I haven't thought about it in a very long time. The small leather craftperson has contributed to the culture of Harley Davidson for over a hundred years. I sure wish all of you awesome leather artists would recreate my logo over and over and over and over etc. When the board of directors walk through a rally and they see their logo on someone's skin do you think they smile or get angry? I will never compliment Harley Davidson by doing their logo in inlay / overlay, but if I did it would be cooler and cleaner than any reproduction they have ever done!

Positively,

Randy

[BIGGUNDOCTOR]

Well if you want to use the Welcome to Fabulous Las Vegas sign on something it is up for grabs. Betty Willis came up with the design while working for Western Neon, and it was never copyrighted. Back in 1959 they were just trying to get people to come to the desert to gamble. Betty lives down the road from me, and she is 86 I believe. In one interview she said that it would have been nice to have gotten some royalties since she sees it on everything including underwear now. Betty also said that in a town where big casinos come and go, her little sign has remained, and that makes her proud.

As for artwork. One artist that I know who specializes in pinups doesn't go after people using his images. He looks at it as free advertising, and has even gotten work from people seeing his images on Facebook, etc.

It would be nice if companies wouldn't go after one off uses, like Disney going after the guy who used Dumbo on a saddle. The maker had to cut the image out of the saddle, and show Disney that it had been done.

[JJLeatherworks]

Ok people let's all come together here. My mother had the same questions with using fabric in her sewing business with Disney and others on it. Here is the case law on it.

It's called the first sale doctrine. The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976,17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."In other jurisdictions, notably France, and, following this example, the European Union, there is no right of first sale for works of art, but instead there is the droit de suite, allowing artists to receive a fee from resale of works of art.

The point is if you buy something ( I.E. Harley conchos, Micky Mouse buttons, Etc,Etc.) and use it in your work it is OK. If you carve a Harley logo into leather out of the blue it is an artist's derivative work.

Lee v. Deck the Walls, Inc, 925 F.Supp. 576 (N.D.Ill.1996), A "derivative work" is a "work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

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.

More great court case quotes found here. case law quote

[Spinner]

Ok people let's all come together here. My mother had the same questions with using fabric in her sewing business with Disney and others on it. Here is the case law on it.

It's called the first sale doctrine. The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976,17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."In other jurisdictions, notably France, and, following this example, the European Union, there is no right of first sale for works of art, but instead there is the droit de suite, allowing artists to receive a fee from resale of works of art.

The point is if you buy something ( I.E. Harley conchos, Micky Mouse buttons, Etc,Etc.) and use it in your work it is OK. If you carve a Harley logo into leather out of the blue it is an artist's derivative work.

Lee v. Deck the Walls, Inc, 925 F.Supp. 576 (N.D.Ill.1996), A "derivative work" is a "work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

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.

More great court case quotes found here. case law quote

RE: Tooling the Harley Logo, etc.

Keep in mind though, that:

"In order for a work to qualify as a derivative work it must be independently copyrightable." From Woods v Bourne, 60 F. 3d 978 (2d Cir. 1995)

There we held that "there must be at least some substantial variation [from the underlying work], not merely a trivial variation." Batlin, 536 F.2d at 491

Simply applying the logo to a different medium (tooling it on leather) does not qualify it as a derivative work if all of the artistic elements aside from the medium remain the same. Doing so places you in jeopardy of Trademark infringement (the Harley logo itself is a Trademark, not a copyrighted work of art) if upon presenting the item to the general public, a reasonable person could mistake it as officially licensed products of the company.

However, here's the loophole:

A disclaimer expressly declaring that the seller is "not affiliated" with the owner of the trademark or is "not an authorized distributor" of the trademark owner's products has been held to be an effective means of preventing confusion in the minds of consumers as to affiliation with the owner of the trademark.

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For conchos & such, I fully agree and here is another defense for their use in our work:

Lee v. Deck the Walls, Inc, 925 F.Supp. 576 (N.D.Ill.1996), ART made no changes, alterations, reproductions, transformations, or adaptations of the notecards and, instead, resold the same notecards using a different method of display. This resale is permissible under the Copyright Act.

We are simply reselling the conchos. The fact that they are attached to a saddle or bag or otherwise doesn't matter. Want to play it safe? List the bag, saddle, etc. separately from the conchos on your invoices.

[Menolly]

Hi all,

I have a specific piece of leatherwork I am working on and would like your input. I am a Star Trek fan and would like to sell this piece I am making but I don't want to do something wrong either.

It is a picture of a hand with the phrase "Live long and prosper" Spock. I drew the hand myself but am just not sure about the infringement issues. Thanks for any light you can shine on the subject

Ellen

[Nefarious]

I have a question that someone can probably answer. Thinking about dog collars and leashes and many online companies sell basic leather goods that contain studs, dots, conchos, etc. from Tandy on them. I've heard of people claiming copyright infringement because someone put the decorative bits from Tandy on in a particular way or design and someone else duplicated it. Where does the law stand on this? Can someone claim a design using decorative bits publicly available from Tandy?