Question: A beading magazine has lots of instructions for making beaded jewelry designs that are purely geometric. The magazine tells readers that they can only use these designs for gifts or personal use (but not to sell). Can the magazine stop me from selling jewelry based on these designs?
Answer: We think you can probably sell the designs without incident but our response depends on the uniqueness and novelty of the patterns. Geometric shapes — pentagrams, stars, arrows, rectangles, etc. — are not copyrightable but geometric patterns combining those shapes may be protected. Like many things in copyright there is a spectrum of protection and the most minimal designs are typically afforded the least protection — for example, in one copyright case, the minimalist jeweler Paul Morelli was unable to stop Tiffany’s from selling 17 of his simple designs.
But how do I know what’s protected? Section 503.02(a) of the Copyright Compendium directs the Copyright Office to refuse registration for common geometric shapes. However, Section 503.02(b) permits registration for combinations of sculptural geometric figures if they “consist of something more than the mere bringing together of two or three standard forms or shapes with minor linear or spatial variations.” A 1989 Court of Appeals decision (authored by then-circuit court judge Ruth Bader Ginsberg) summarized some of the cases in which combinations of geometric shapes have achieved protection.
[W]e note that simple shapes, when selected or combined in a distinctive manner indicating some ingenuity, have been accorded copyright protection both by the Register and in court. See, e.g., Soptra Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1094 (2d Cir.1974) (concluding that fabric design consisting of strip of crescents with scalloping or ribbons and rows of semicircles “constitutes modest but sufficient originality so as to support the copyright”); Tennessee Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279, 282 (5th Cir.) (holding that filigree pattern of intercepting 884*884 straight and arc lines “possessed at least the minimal degree of creativity required for a copyright”), cert. denied, 398 U.S. 928, 90 S.Ct. 1819, 26 L.Ed.2d 91 (1970); Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1316 (2d Cir.1969) (treating as subject to copyright protection fabric design consisting of a circle within a square within a circle); In Design v. Lynch Knitting Mills, Inc., 689 F.Supp. 176, 178-79 (S.D.N.Y.) (upholding copyright of rhomboid pattern on a sweater), aff’d, 863 F.2d 45 (2d Cir.1988).
Can you copy and sell the designs? The magazine’s position seems to be that it will not prosecute infringements for personal or gift use but that it reserves the right to sue over commercial uses. (Absent an end user license agreement (EULA) you have no contractual obligations.) Whether the magazine will pursue you depends on if: (1) the magazine believes its copyright is defensible (Where do the designs fall in the spectrum of geometric designs? Will the copyright claim stand up in court?); (2) the magazine learns of your sale (Where are you on their radar?); and (3) the magazine wants to become embroiled in a legal action (Can it afford the suit? Does it want to litigate against one of its readers?).
Question: I sell original wood sculptures. What rights does a buyer get?
Answer: Assuming it’s protected under copyright law, a customer acquires the limited right to display the wood carving at home (though not in a museum) and to lend it, rent it, and re-sell it (and in some cases, to destroy it—although certain fine art crafts works such as sculptures and limited edition prints and photographs are exempt from this rule. The customer cannot make copies or otherwise reproduce it. You control all copyright in the work .
Question: I’m a crafts artist and I create fantasy animals and sell them as sculptures and prints. A company wants to license two designs for fabric for use in children’s products. They’re asking me to sign a license for three years. According to the contract, I can still sell sculptures and paper prints. I just can’t do clothing. bed sheets and similar fabric items. I think I understand the agreement. I’d hate to blow most of my advance on a lawyer if I don’t need one. But people are telling me I should see an attorney. What do you think?
Answer: That’s a tough call. Heres some background on crafts licensing we also offer a sample license agreement for purposes of comparison. If you’re a savvy, confident businessperson capable of reading contracts — and this is especially true if the other side provides a concise easy-to-understand agreement — you can probably negotiate your own license. If legal agreements just make you nervous, and a company wants to license your best-selling or signature work, you might as well secure some backup and retain a knowledgeable licensing attorney.
Watch out for “assignments.” One warning flag that you might need an attorney is if you see the word “assign” or “assignment” in the proposed license agreement. An assignment means that you are selling legal rights in a work to someone else which is far different from the “rental” arrangement of a typical license. If you assign all your rights in a work, then that’s it—you can’t reproduce and sell that work any longer. There may be an occasion where an assignment makes sense—for example, sometimes you can assign all rights for the term of the license and they will be assigned back to you after it’s over, or you may receive a large sum of money for an assignment. Nevertheless, if the licensee seems to be angling for an assignment, have an attorney review the draft agreement to guarantee that you’re not permanently giving up all rights.
Question: I just had some items pulled from my Etsy shop at the request of a band’s attorney citing intellectual property rights violation. From what I grasp the offense is taken mostly from the public displays of the bands name and logo in the picture listings as well the attorney’s assumption I am financially gaining off the logo and not my labor/seamstress skills.
Answer: We’re sorry to hear that your Etsy items were pulled. As for your copyright question, not much has changed since we last discussed this issue. Repurposing legitimately-acquired t-shirts should not infringe copyright. However, the trademark rules are not as clear.
Etsy and trademarks. An Etsy shop owner is at the mercy of two outside forces: Etsy and the offended trademark owner. Apparently Etsy will turn off access to shop items or even close down shops if a trademark owner provides sufficient notice for an “Intellectual Property Infringement” (as defined in Etsy IP guidelines). We’re a little confused by this policy because the term “trademark” never appears in the guidelines and the guidelines mirror DMCA requirements which are strictly for copyright. In addition, this 2011 statement by an Etsy in-house atorney states that Etsy doesn’t intercede between the shop owner and trademark owner; they just establish contact between the two. Nonetheless, there appear to be cases of Etsy closures and shutdowns based on trademark complaints. Considering the volume of complaints and Etsy’s desire to avoid liability for the site itself, we assume it makes more business sense to shut down an item first and ask questions later.
Trademark law. Upcyclers are in a gray area of trademark law. On one hand, anyone can resell authorized trademark goods under the principle known as trademark exhaustion. For example, a band can’t stop you from selling a collection of their used t-shirts. But upcycled goods — because they deconstruct legitimate goods to create new products — are not in the same category as recycled goods. For example, if the new products reflect poorly on the brand or if they trigger product liability issues — for example, a chair made from Sherwin-Williams paint cans — the owner may have a gripe that consumers will be confused or harmed. On the other hand, goods with no liability issues — for example, refrigerator magnets, kitchen aprons, or upcycled underwear — that are obviously not created by the trademark owner, are unlikely to be infringements. Bottom line dept. Even if you’re convinced you fall safely in the latter category (we think you do) we don’t recommend fighting the trademark owners. The battle will turn into a black hole and your store will suffer. We only wish more trademark owners would at least consider licensing before asking Etsy to close down stores.
Question: Can we purchase copyrighted fabric or ribbon from a store, make it into a dress or handbag and then sell those items legally? There is a “For personal use only” statement on the salvage of the fabric. My understanding is that First Sale Doctrine would cover the resale of the fabric along with a proper listing and disclaimer? Answer: You’re correct. Thanks to the first sale doctrine, if you bought copyrighted fabric, you’re free to make it into a product and resell that product. You’re also free to photograph that product and reproduce that photo as part of an ad when selling the item. A disclaimer won’t hurt but it’s not required.
What about the statement on the fabric? The statement — for personal use only — is wishful thinking on the manufacturer’s part. Unless you affirmatively agreed (signed something, clicked “I Agree” or made some other indication of assent) at the time you purchased the fabric, such a statement would not be binding on you.
What you can’t do … If the fabric is an infringement, that is, an imitation made without permission of the manufacturer, you’ll run into problems. In that case, the copyright owner can stop your uses whether you knew or should have known it was infringing. You may also run into problems if you create fabric from found imagery that is still protected under copyright. In that case you’re infringing the image owner’s right to create derivatives.