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A company in Florida filed a trademark on “Louise Brooks” and has used that to remove all Louise Brooks items off of Etsy in order for its company to sell its own Louise Brooks products. My understanding is that all publicity photos taken back in the 1920s and 1930s were never copyrighted, therefore, in the public domain, especially if the photographer is unidentified. Is this legal for a company to suddenly do this? Louise Brooks has never had an active estate before … to the best of my knowledge.
It’s a tribute to Mary Louise “Lulu” Brooks (who would have been 114 this year), that merchandise with her image is still popular. It’s probably attributable to her jazz icon persona, the availability of public domain imagery, her always-stylish bob haircut, and the fact that her estate has not exerted control over the sale of Brooks goods (the estate is not behind the series of takedowns you mentioned). Instead, vendors had operated laissez-faire, selling a wide range of goods until December 2019, when a Florida company acquired the exclusive right to use the Louise Brooks trademark on over 40 types of merchandise (listed below).
- Wholesale Invoice – use this invoice when making wholesale transactions
- Consignment Agreement – use this contract when consigning crafts work to a store or gallery
- Commission Agreement – use this agreement if a customer has requested a custom order
- Work Made for Hire Agreement – use this agreement if you want to acquire copyright ownership of a work created by a contractor
- Merchandise License Agreement – use this merchandise agreement if you are permitting someone else to make and sell your crafts or your designs
- Sales Representative Agreement – use this agreement when hiring a sales representative
- Model Releases – use these releases when photographing models for advertising and other promotional purposes
- Copyright Assignments – use these agreements when you need to transfer copyright ownership from one party to another
- Nondisclosure Agreement – use this agreement when you want to protect trade secrets
A design patent may take one year or more to issue (although half of the applications issue in less than a year). An applicant can speed things along — that is, obtain a design patent within two to six months — by filing a Request for Expedited Examination of a Design Patent and paying a hefty fee. Here’s an article about the expedited system. You can learn more about design patent strategy in this article and we explain the steps for preparing an application in this section of our site. You can learn current fees at the USPTO website.
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. Continue reading
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? Continue reading
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. Continue reading
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. Continue reading