We recently received a copyright infringement inquiry from a local Etsy.com seller. Etsy removed a portion of her products from her shop, and Facebook.com blocked her account. Etsy and Facebook informed her that she had infringed upon a popular sport’s team’s intellectual property (IP). Needless to say, she had a few questions:
Etsy.com has published it’s own “intellectual property policy” for sellers which states that they “comply with intellectual property laws and industry best practices“.
If you’re not sure what a copyright or trademark is, please read our blog posts about the two topics, as well as the importance of protecting your intellectual property.
In summary, the most common infringement causes for creators include any “fan art” based on copyrighted character (e.g., Harry Potter) or trademarked logos (e.g., Nike’s check mark). Your creation does not have to look exactly the same as it can be your interpretation of it, but it can still be considered intellectual property infringement, especially if you are profiting from it.
Intellectual Property owners and their legal representatives will warn you with a letter, usually called a “cease and desist” letter. They will also send it to Facebook or Etsy to have your listings removed. Facebook and Etsy then remove all your listings described as infringing on the IP owner’s copyright or trademark.
Do you sell on your own website and domain? Then, the letter is sent to the business or business agent’s address on record for the business.
You may be sued for copyright or trademark infringement if you fail to comply with the cease and desist letter, or you are caught continuing to infringe on their IP despite the warning.
If you have received a warning letter from the owner or agent of an alleged owner of a copyright or trademark, you may want to consult with an attorney on your options.
“Licensed fabric” refers to wholesale fabric with trademark logos (e.g., NBA) or copyrighted characters (e.g. Disney character).
When she asked this question, there was mention of the First Sale Doctrine, which protects the rights of the person buying a copyrighted item. This doctrine applies to the first sale, not subsequent sales, and it does not protect “reproduction”.
However, the issue with licensed fabric is that it is usually sold with a set of rules. If you carefully read the fine print on the licensed product you buy, you should see a disclaimer like one of the below:
“FOR INDIVIDUAL USE ONLY.”
“NOT FOR COMMERCIAL USE.”
We did a quick search on Google and other popular wholesale retail websites, and found these disclaimers were on the product listings.
What do these disclaimers mean? It means you cannot buy the licensed fabric, create your own products, and then sell them for profit (“commercial use”). If it says “individual use only”, then you cannot even give them away for free.
In the case of our inquirer, she has to rethink her Etsy business model of selling creations featuring the intellectual property of others. However, she does have options:
a. She can request permission from an IP owner to use a logo or character for her creations.
b. She can hire an attorney to contact the IP owner alleging infringement and then try to have her social media accounts unblocked.
c. She can create her own characters and copyright them.
d. She can use fair use patterns/fabrics with no copyrighted or licensed characters and logos.
Do you have additional questions about this topic? Please feel free to comment any general questions and perhaps we can expand on this topic in a separate blog post. If you have questions specific to your situation, please contact us for an answer.
At Lum Law Group, every case is approached with a commitment to excellence and a focus on achieving the best possible outcome. With decades of experience in immigration, business, and intellectual property law, we provide personalized legal solutions that set you up for success.
24 Responses
We just received as a gift, hundreds of Disney, fleece material. Some complete panels, some in yardage. Our hope is to sell it as is, depending on the quality, the popularity (We have a lot of Frozen and Frozen 2), so, can we resell it legally? If not, what value does it have?
Thank you,
John and Lynette D’Angelo
What was the answer to this question?
In order to be able to use the material, you would have to establish that it was purchased by whoever gifted it to you, and was purchased for the purpose of creating whatever it is you are creating. The safest answer is that it came from an authorized licensee and is being used for the purpose that it was sold. If it is a one off art piece, that is a different story, but if you are re-purposing material for another commercial purpose, I would be very wary of attempting to sell it.
Is it legal to draw your own version of a character, have it printed on fabric and use that fabric to make something? Whether as a gift or to sell? Can you sell your drawings of that character so others can order fabric or other items too?
No, under most, if not all circumstances that would be considered a copyright violation.
I recently bought some Bluey fabric from eBay am I allowed to make kids clothes or put the fabric on towels and resell it I’ve seen people on selling sites saying it’s copyright and you can’t sell it
I was told by a licenced fabric company that I can use their fabric to sell hand made items as long as they are worded correctly. ie “made with Frozen (for example) fabric”
NOT
“Frozen (item ie dress/bag etc)”
Is this correct pls
If you have purchased a fabric, you do have a right to sell a good made from that fabric. It is important for you to retain records to show from whom you purchased the fabric. A copyright holder may take action against anyone who infringes the owner’s copyright, so it is best if you purchase fabrics from reputable sellers.
I just bought on-sale fabric at Hobby Lobby that has a stamp on the side that says: “Copyright protected. Fields in Bloom.D#74888”
Does that mean I can’t use it to make something to sell? It’s not Disney or Football, just a pretty print, it was sold in the fabric section where you buy to make and sell or gift or use for self. Your answer above says: “In order to be able to use the material, you would have to establish that it was purchased by whoever gifted it to you, and was purchased for the purpose of creating whatever it is you are creating. The safest answer is that it came from an authorized licensee and is being used for the purpose that it was sold.”
Is it the design on the fabric that is protected or the fabric itself? Why would they even sell it if it can’t be used to make your own creation? I don’t get it.
This whole article seems to contradict itself. What good is the licensed fabric if you can’t buy it – make something out of it and then do whatever u want with it? This last post says that ‘you do have a right to sell a product made from purchased fabric. Do u or don’t you. The store – say Joann’s has bought -paid for- the fabric. I buy it to make something out of it. I want to sell it. Do I have to have a license for it or pay a fee to use it? I don’t understand.You go on to say – keep receipts from reputable sellers. ?????
I’m not actually sure that verbiage on a fabric selvage is definitive under the law. Could you please share the law that makes this so? Thank you.
Is it still considered copy-write infringement if I cite the fabric creator in the description of the product?
Do I understand that if you buy licensed fabric from a retail fabric store then you have a right to make items from that fabric for resale. You just need to describe it, item as made with licensed fabric. This issue comes up every time there’s a craft show. Thanks in advance for clarifying this issue.
My class has made coasters with decoupage pictures on them. Some have NFL teams and NCAA teams on them. We are selling them to strictly raise money for a charity. Would this be infringing on copyright laws? We copied and pasted the pics from the internet and printed them out.
Just to give a little more background. My class is a special needs class and learning about giving back to the community. The money we raise is being used to buy food for Kids Food Basket. We are only selling them in building and not on Etsy or Facebook.
My class has made coasters with decoupage pictures on them. Some have NFL teams and NCAA teams on them. We are selling them to strictly raise money for a charity. Would this be infringing on copyright laws? We copied and pasted the pics from the internet and printed them out. Just to give a little more background. My class is a special needs class and learning about giving back to the community. The money we raise is being used to buy food for Kids Food Basket. We are only selling them in building and not on Etsy or Facebook.
I see people buying old bed sheets that have trademarked characters printed on them and cutting the sheets up then making items from the old sheets- such as book marks, key chains, pouches, etc.. If you buy an old item but revise/alter it (up-cycle it), are you in violation of trademark laws when you sell the item you create from the obviously old/used item?
Can I make pillow cases with Sesame Street or Disney material and sell at a craft fair?
Hello there.
I have a Etsy store. I make bedding and pillows for dolls and dollhouses
( I received notice that I violated IP infringement) yes, they were correct, I did have some Disney fabric, which I already removed)
I am trying to find out, how or where will I find which fabric is ok to buy and make handmade items and sell it on Etsy ( or any other place) without violating anyone rights.
Disney fabric have on the salvage edge: sold for noncommercial home use only. = perfect, clear message
But what about other fabric makers like:
Free Spirit Morris & Co Kelmscott strawberry thief = nothing on the edge
Susan Winget = there is nothing on the salvage edge
And another fabric makers:
Robert Kaufman
Benartex
Than from Hobby Lobby store:
Fabric from Brother Sister Design Studio : On the salvage edge is written All Rights reserved
Does that mean that I cannot make bedding from it and sell it on Etsy? When you buying that fabric on Hobby Lobby website/ it doesn’t tell you who is this fabric from or if it is licensed
Another fabric from Hobby Lobby
Have on the salvage edge : Hobby Lobby Stores,Inc. All Rights Reserved
This is a huge problem and nobody will provide any clear answers or guidance.
What if the fabric tag only has the copywrite mark for the maker (I.E. Marvel ©) but does NOT say ‘For individual use only’, or ‘Not for Commercial use’.
We bought a bunch of trademark fabrics, some only have the copywriter, but some do say “Not for Commercial use”.
Recently I bought about 200 coupons of different designer fabrics from wel known fabric brands . I bought them from a licensed seller (they sell to interior designers). There is no brandlogo on the design of the fabric and no licensed characters (like the Disney example above this post), just designs from famous designers who collaborate with the brand. Can I make these coupons into products on the base of first sale doctrine and using specific words when selling them ? I’m also planning to put my own design tag on the products.
It is understandable that the use of a fabric printed with a copyrighted image (Disney character, sports team logo, etc.) would be limited to the personal use of the person who purchased it. However, I have just come across a statement on a website that sells fabric that doesn’t fit that category in any way. Over 200 fabrics on the site have as part of the item description “It is intended for home use only, not for manufacturing.” Some are obviously copyrighted, but many are unique designs I have never seen in any other context. I wonder whether this seller is simply beginning to add this boilerplate to all of the fabrics it carries in order to avoid prosecution and whether this statement actually has the force of law. Or does the term “manufacturing” cover only mass production but not one-off items such as are found on Etsy? If this is a new trend, I find it puzzling and disturbing; it would definitely stifle entrepreneurship among creators who rely on casual sales at craft fairs and the like to supplement their income.
Can you make items from licenced fabric if nowhere on the salvage it says anything about “indivudual use only” or “Not for Commercial Use”?
So are the different fabric company a reputable place to buy the material. For example if I buy the Lakers of bulls fleece from Walmart or Joann fabric can I make a blanket and sell it without any problems