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Christine

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Reply with quote  #1 

Can we keep this thread for information only, I started it after comments in the "Report Store to Artyah button" thread where we can discuss things.  I am not a lawyer, these are my opinions and research only, please check and do your own research.

Intellectual Property
I came across this page ( http://www.wipo.int/about-ip/en/ ) after I had typed much of the foregoing which would have saved a lot of time.

Copyright:
Very basically if you created something from your own imagination it is copyrighted to you as soon as you have painted, written, recorded, created it.
If you have copied it from someone else be it an individual or company then you cannot claim copyright and should not use it for commecial (ie monetary) purposes.  You may even end up with a court case against you.  Just because others do it and have not been caught yet does not make it legal.  Artyah have stated that they want this site to be copyright infringement free so I am starting this thread for information on the subject.

Copying or basing and then monetising your work on anything from, for instance, a film, cartoon, television programme, video game, song, playing cards (such as pokemon) etc is not legal unless you have written permission and a licence from the copyright owner.  Books are a slightly different in that they retain copyright for at least 75 years after the death of their author but this can vary so do your own research on this as sometimes the rights have been purchased by or left to, a third party.

Many items we see for sale include Disney (films and property), Star Wars, Doctor Who, Pokemon and any of these could be taken to court for copyright infringement.

Trademarks
Trademarks include things such as company names - Disney, McDonalds, and even some words and phrases, the most infamous probably being Shabby Chic (https://trademarks.justia.com/761/50/shabby-76150876.html) which means it cannot legally be used to describe items, the definition of shabby includes "in poor condition though long use or lack of care, run down, scruffy, neglected, dilapidated, in disrepair" so why anyone would want to use it to describe their items for sale is beyond me [biggrin]

There are lots of other trademarked words and phrases that cannot (or certainly should not) be used to describe items, a few more include, *American Girl Dolls, Fairy Dust, Onesie (why some idiot passed that one I cannot imagine but look it up, there are lots of pages on it), quotes and sayings, usually from films, programmes or by famous people.

Photography
Laws vary from country to country but usually if you are on private property or a paid for event or place then selling your photos needs a licence.  Commercially selling anything with a recognisable person needs a model release.  Some things are variable such as the Eiffel Tower, if the lights are off you can take and sell photos, if the lights are on you can only take photos for personal use. (https://artlawjournal.com/night-photos-eiffel-tower-violate-copyright/)

Fan Art
Fan art, the creating your own versions of famous people/characters/cartoons for your personal enjoyment is fine, selling them is not - (https://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/)

Fabrics
29 June Edited:   See posts 10 and 11 for more information on using licenced fabric

Vintage
Vintage items are usually, but not always okay so again, do your research before listing them.

So basically you have to be original.

 

*Edit.  See post 6


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glassladyathome

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Reply with quote  #2 
Great job in compiling so much pertinent information.  I agree, it should be saved to an area where new sellers, or anyone with a question can refer to it.  I suppose it is too much to ask to make it required reading for all new sellers?  Not totally serious, but still not a bad idea.
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catwands

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Reply with quote  #3 
Good job! Also using 'inspired by' is a no no.
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BluelaceVintage

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Reply with quote  #4 
Looks great!  Thanks for the hard work! Very informative.
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Lynne-LMRCreations

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Reply with quote  #5 
This is a good place to look up trademarks.........I learned about this one on E.

https://www.uspto.gov/trademarks-getting-started/trademark-basics/searching-marks-uspto-database

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Mert

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Here is what the company "American Girl " has to say about infringement.  They are very serious and will prosecute if someone uses their name in any way or their products without being licensed to do so.   What is shown below is the warning that is sent if someone is found to be misrepresenting American Girl:

 We represent AMERICAN GIRL, LLC (AGLLC) in connection with intellectual
 property matters.

 As you may know, AGLLC sells dolls, doll clothing, and related goods
 under its well-known AMERICAN GIRL trademark.  AGLLC also owns federal
 trademark registrations, copyrights, trade dress and other intellectual
 property for AMERICAN GIRL and has the exclusive rights to control its
 use in commerce.

 Your advertisement has been reported because of one or more of
 the following issues:  (1) your listing uses the AMERICAN GIRL
 trademark in an unauthorized, prominent, and confusing manner,
 suggesting that the goods originate from or are sponsored by American
 Girl, (2) your listing displays or incorporates counterfeit items not
 authorized by AGLLC  and/or (3) your listing incorporates photographs
 of AMERICAN GIRL dolls for commercial purposes.  The unauthorized use
 of intellectual property rights associated with the AMERICAN GIRL brand
 in connection with your item constitutes infringement and misleads
 consumers into believing that your item is approved, or sponsored by,
 or affiliated with AGLLC, when it is not.

  American Girl, LLC reserves all rights.


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martinelatoons

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Reply with quote  #7 
Very good info Christine, thank you for sharing it.

Mert I hope that warning helps other understand the implications of the infringements.

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Mert

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Reply with quote  #8 
I do to Martinela.  It spells things out pretty well.  [smile] 
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Lynne-LMRCreations

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Reply with quote  #9 
I know I sure wouldn't want to receive one of those...........scary
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artyah

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Reply with quote  #10 

Everyone,

Please read this taken from Legal Zoom

First Sale Doctrine

The "first sale doctrine" is the legal doctrine that protects the items that you make from copyrighted fabric and sell. Under the first sale doctrine, a copyright owner can enforce its rights the first time it sells an item. After the first sale, the item enters the stream of commerce, and the copyright owner's control ends. With copyrighted fabric, the first sale occurs when the copyright owner licenses or sells its copyright to the fabric manufacturer. When you purchase the fabric from a fabric store, your purchase is a subsequent sale that the copyright owner cannot control.

Disclaimers

In spite of the legal restrictions presented by the first sale doctrine, some copyright holders nevertheless try to enforce their copyright protection against individuals who make and sell items from copyrighted fabric. You may be able to reduce the risk of a rights owner attempting to enforce its rights against you by using a disclaimer when you sell your products. Whether you sell online, at a craft bazaars or in a retail store, it can't hurt to include a disclaimer on your website, at your booth or on your packaging that clearly states that your products are not associated or affiliated with the original copyright owner.

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Christine

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Reply with quote  #11 
Quote:
Originally Posted by artyah

Disclaimers

In spite of the legal restrictions presented by the first sale doctrine, some copyright holders nevertheless try to enforce their copyright protection against individuals who make and sell items from copyrighted fabric. You may be able to reduce the risk of a rights owner attempting to enforce its rights against you by using a disclaimer when you sell your products. Whether you sell online, at a craft bazaars or in a retail store, it can't hurt to include a disclaimer on your website, at your booth or on your packaging that clearly states that your products are not associated or affiliated with the original copyright owner.



Following Artyahs post above I have done some more research as when I first looked I found some very conflicting views on Fabric and sales of items made from licenced fabric.

This page includes the wording to use in both the title and at the bottom of your listing if you are using licensed fabric to make your items

http://www.tabberone.com/Trademarks/TrademarkLaw/Disclaimers/TabberoneDisclaimer.shtml


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Lynne-LMRCreations

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Reply with quote  #12 
There have been huge debates over the first sale doctrine on other forums.

Some things to think about if you choose to go with the first sale doctrine.
Do you have the money to be able to fight them in court?
Are you going to be able to (if you lose) pay the penalties that these huge companies (Disney etc) will want from you? 

Yes there are cases where sellers win but, there are also many cases where they lose.
I personally wouldn't want to take that chance with my money and business.

These are just my thought on this whole first sale doctrine.
I know sellers will do what they want and that is on them.




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catwands

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Reply with quote  #13 
I agree Lynne. Use that fabric, words/phrases, characters, sports team, TV show, movie, etc. is just playing with fire. Everyone gets caught sooner or later.
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kakugori

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Reply with quote  #14 
For anybody who would rather watch/listen than read, here's a link to the Crash Course Youtube playlist on intellectual property:

https://www.youtube.com/playlist?list=PL8dPuuaLjXtMwV2btpcij8S3YohW9gUGN

This isn't exhaustive, and won't cover all situations, but is a good general overview.

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Essentially Southern

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Reply with quote  #15 
And don't forget the most valuable of all Sites regarding Trademarks: The USPTO

There is really good info here to get started understanding the Basics of Trademarks (with some videos, too): Trademark basics

Always consult an attorney if in doubt, as Trademarks and Copyrights can be confusing,

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