Selling Items That Are Copy Righted - What Is Fair Use?

[DavidL]

Im pondering the potential idea of screen printing images onto leather and selling various products that have copy righted images or images of celebrities.

If I was to print a bob marley image onto a wallet or a famous quote will that fly?

The rules seem to be very loose with what can be used when selling items. There are many shirts of bob marley on the front, many of the small one man companies most likely didn't get a licensing agreement. Can you be sued for this?

Some say that its okay to use copy righted material as long as its a custom order and not pre produced. Has anyone sold any items leather related or not that have popular imagery?

[RavenAus]

This sort of question is one you ask a lawyer, not a leatherworker.

Look at it this way though. If you were a photographer and someone was making money from your images, would you want recognition and recompense?

[electrathon]

Simple answer. Personal use Ok. Selling it, not ok. People do violate the laws all the time, you likely will not get caught if you keep it off line.

Of course the long answer is way more complicated than this. Until you loose in court it is unlikely you will really understand the complexity of it.

[DavidL]

Just wondering if anyone sells things on etsy or whatnot w/ screen printing on their pieces or tooling of characters (which I have seen a few). Don't have any lawyer contacts right now (out of my budget).

Id probably want some pay if I was a photographer for sure, if I was the owner of Mario I wouldn't mind unless it hurts my brand. Probably would get sued by nintendo if I did a large line of Mario products without licensing. A small line of handmade or inspired by mario goods is a grey area. My gut says it won't be their radar, they do have the right to sue though. Anyone dealt with this specifically

[JLSleather]

Yes. You can be sued. You don't even need to sell it - just reproduce it. Selling it will more likely get you sued, because the owner of the property can show "damages".

This has been done (and still is) to no end. Here's a few 'what ifs' to make the point.

A cartoon mouse with big ears and mittens is trademark violation. If it doesn't say "MIcky", you can STILL be sued.

Volume is immaterial. Guy here was on the news a month or so ago for making a couple dozen t-shirts with the ISU "cyclone" colors. They didn't say ISU, they didn't reference the cyclones, and the people who got them really were ISU grads. Still trademark violation (in this case, no prosescution - they were just ordered to stop making the shirts).

"Everybody does it" is not a suitable legal defense. It won't work - unless you're comforted by the idea not being sued alone.

Often, infringement is allowed to go on (as in not enforced). Harley Davidson stuff is everywhere - I mean the stuff NOT done by HD. One guy told me years ago that you can make stuff (his thing was "biker" wallets) with the little logo "shield" as long as it didn't say the name. He found out that wasn't the case, though he was informed without prosecution.

And THERE is the 'rub'. We've all agreed not to share that software, we've all said we're not going to share those patterns, etc... In the end, it comes down not to is it legal, but is it ENFORCED?

I personally don't mess with it. Because it was not enforced yesterday doesn't mean it wont be enforced tomorrow. Just using HD for a 'what if' .. you might make those belts and wallets for 10 years without incident. Then one day, here comes someone who says they can show you have been causing them to lose revenue for the last 10 years, and you're --- well -- let's just say it aint good.

OH, yeah .. .that guy is still after me like 4 years later to make him a Pittsburgh Steelers belt. Thank you, no ...

Edited May 11, 2014 by JLSleather

[DavidL]

Thats probably best for me not to touch it if theres a chance il get in trouble.

What about celebrities or quotes? They can't sue you for using there face right?

[cem]

Speak to a lawyer that specialises in copyright and trademarks or at the very least read through the information here http://www.cipo.ic.gc.ca

Yes celebrities can sue you for using their likeness there has been numerous cases regarding it.

Edited May 11, 2014 by cem

[veedub3]

The last thing you want to do is get legal advice off a leatherworking forum. An IP Attorney would be the one to contact and some will give you a phone consultation for free. The mere fact that you asked the question leads me to believe that deep down you know the answer to this question. The rules aren't loose! Infringing on a persons Copyright/Trademark is illegal. There is no misunderstanding that, It's that simple.

You see people printing copyrighted images all the time, but what you personally don't know for a fact is if they have prior consent or not. There is simply know way for you to tell. My guess is that they don't have prior permission, but because they are doing it illegally, does not make it right for me to do it. It is in fact illegal. You can not profit off of someones intellectual property without prior consent. You get caught and you just may have to pay the price. Is that worth the risk?

Now as a Screen Printer/Embroiderer myself, I can confirm that printing Copyright/Trademarked images without prior consent can get you into a mass of trouble. I have been in the screen printing business since 2001, and in the early years, I was sued twice and sent countless Cease and Desist letters. The two lawsuits together cost me nearly $48,000 to settle. The judge told me that "ignorance of the law was no excuse" and hit me with a fine that he said hopefully would deter me from doing it again. Trust me I never crossed that line again, that was 12 years ago.

IMO it is simply not worth the risk!

Karina

[veedub3]

What about celebrities or quotes? They can't sue you for using there face right?

Yes they can sue you for using their likeness. Celebrities get paid when their image is used, so why would they let someone else profit from that? But like everyone has already stated, you need to seek professional legal advice.

Karina

[DavidL]

Okay il contact an ip consultant if it won't cost anything and make sure I'm protected.

[BDAZ]

In general, the first barrage is a cease and desist letter. The copy-write owner is more interested in having you stop then taking you to court where he has to prove monetary damages.but can also demand punitive damages. Unlikely in the case of a mom and pop shop.

Immediate compliance with a C&D will usually end there.

I have some experience in patent infringement which is similar, but the best advice from the leather workers here is don't take our advice!

Cya!

Bob

[WyomingSlick]

Yes they can sue you for using their likeness. Celebrities get paid when their image is used, so why would they let someone else profit from that? But like everyone has already stated, you need to seek professional legal advice.

Karina

LOL But rags like National Enquirer can use their picture for free to sell millions of copies every week.

[veedub3]

LOL But rags like National Enquirer can use their picture for free to sell millions of copies every week.

The Enquirer is sued all the time, and we rarely ever hear about the settlements, or back office deals that are made with said celebrities. Also they claim to be "a News Reporting Org.", which would be different than simply placing a celebrities face on a leather wallet and selling it as the OP asked.

Plenty of celebrities have sued for the unauthorized use of their image and all have won. The reason they won is because a Law states a persons likeness is his/her property under copyright law and could not be used commercially by other parties. This law doesn't just apply to celebrities, it applies to the average Joe as well, although I doubt anyone would want to use the average Joe's image.

Karina

[BDAZ]

I was good freinds of the photo editor for the National Enquirer, Bob Stevens when I lived in South Florida. The operative word is public figure, and they are only alowed to publish the images as news, not allowed to sell them on mugs or wallets.

Bob, btw, was the first guy killed in the post 911 anthrax attack at their offices in Boca Raton.

Cya!

Bob

[RavenAus]

The other thing to consider is you have absolutely no defence if someone does claim copyright infringement after posting a thread like this - you are basically stating you were planning to do this so you can't even claim you were ignorant of the laws now.

[Billy P]

There used to be 2 old guys, brothers, who had a little leather shop about 12x12 ft. The made belts, braclets, and wallets. About 4 miles from their shop a friend had a old store building that he had an indoor flea market in. Well the brothers rented a corner and put in a display case and some hangers and started selling in there. Here is where the rub came in they would go to Harley Davidson dealerships and buy small to medium Harley patches and sew them on their wallets. They did this for about 8 or 10 years, with no problem. One Sunday morning a guy comes in browsing, he goes back to their little corner and asks Sarge, the one there how many of the Harley wallets he had, so Sarge thinking the guy may want to buy them all told him how many he had there and how many they hady ready in the shop, right beside the main road, also had. The guy told him that since he had bought the patchs at the Harley dealer, he would alloy him to sell what he had already made, that he had to cease and desist making anymore. He gave them the paperwork and informed them he would be checking back and if they were caught making any more the would be most certainly sued for copyright infringment. I had 2 Harley stamps made by Baron tool like probably a lot more of you have. Isaw them selling on ebay and found out you are not supposed to use them either so I listed them. I payed about $2.50 each back in the 70's. Those 2 stamps brought over $200.00. I couldn't use them so I let someone else have them. Anyway be careful what you put out there, because it can cause more trouble than it's worth to do it. You may never get caught, but you never know what might happen. Just my thoughts Billy P

[BDAZ]

I was watching a recent episode of Pawn Stars and they were negotiating over a bunch of paintings that bore the portraits of Jimmy Hendricks, Elvis, and a bunch of other R&R stars. There was no issue about copyright even though each was a reproduction of the original in an edition of 300.

Cya!

Bob

[NVLeatherWorx]

The answer here is as simple as the question. If you do not own the image or design and you do not have permission from the said owner of the image or design then don't use it, plain and simple. Yes, you do need to seek out the advice of an IP Attorney but they will tell you just what I did and I know this because I have posed it to one in my area just for giggles so that when I tell a potential customer "no, I can't do that" I have complete supporting justification as to why I can't. They don't like to be told "no" but they hate to be told that what they are asking is a violation of the law and that they are just as liable as the one who makes the item. My version of the "scared straight" concept and it gets attention every time.

[BDAZ]

Unless it's the Washington Red Skins logo heh heh!

Cya!

Bob

[veedub3]

As a Embroiderer and Screenprinter, I am willing to bet my business that people now think that it is OK to print Redskins apparel without permission. Before you do - read this: http://www.tsn.ca/nfl/story/?id=455147

Karina

[BDAZ]

My comment was in jest! But thanks for the link. I hold both trade marks and patents and am aware of the process and rights. For small business, the right to sue is about as useful as the right to throw money in the ocean..

Cya!

Bob

[kwelna]

I am not a lawer, but it was explained to me by a lawyer.

In simple terms, if you use an immage\symbol ect. that:

a: You did not create

b: Looks like an immage\symbol, same color scheme, own\copywriten by some one else

c. You sell, give, trade, barter etc. the item

You are probably breaking the law \ impinging on the rightful owners copyright\trademark.

Stop trying to skirt the law\find a loop hole, people that are smarter and better funded than you have tried and failed.

Now, whether you are or are not breaking the law, take into consideration how much you stand to gain from these sales and subtract the possible leagal costs in defending yourself in court - assume a minimum of $300 - $500 an hour for your lawyer( By the way that would be dirt cheap for a IP attorney).....So lets go with a LOW figure of $5,000 that will cover your initial court appearance. Can yo sell enough items to make it pay? Plus now you are on their radar and they will continue to monitor your business. Most of these organizations love to make an example out of anyone they can. Especially the little guy, Anyone remember this case? http://www.wired.com/2007/10/riaa-jury-finds/ So ask yourself, is it really worth it?

You want to make your son\daughter a back pack\wallet with their favorite team's logo? Go for it, chances are you will never get caught. Want to sell them on ebay\etsy\leather shows get ready for a world of hurt.

Create your own works and designs, that is what makes your work unique. It is what makes you the "Artist \ Craftsman".

[BDAZ]

Just a couple of comments. a should read "you did not create that are trade marked" There are millions of images and symbols that are royalty free.

The other point is that the most likely response to a small maker pirating a logo would be a cease and desist letter. It costs both party's nothing and the problem goes away if the pirate is smart.

Cya!

Bob

[bdunne]

My company sells at a lot of comic book and anime conventions and they are very strict about copyright and intellectual property right infringements. The convention staff will usually have lawyers or experts on hand and if they believe that your products infringe a copyright they will boot you from the convention without even blinking.

Most of the major conventions have been sued by major entertainment companies due to bootleg products and reproduced copy righte material.So,I would reccomend not reprodicing or getting licensed by said company in order to produce.

Hope this helps,

Barry