Can I sell handmade items made of licensed brand fabric?
8 CommentsWe 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:
1. Does the Etsy seller agreement not protect her?
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.
2. Is she going to be sued by the corporation that owns the trademark/copyright?
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.
3. Is buying licensed fabric, sewing clothing out of it, and selling it on Etsy illegal?
“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.
4. What can she do about her situation?
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.
Lynette and John D'Angelo
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
Treesa
What was the answer to this question?
Lum Law Group
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.
Mel
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?
Lum Law Group
No, under most, if not all circumstances that would be considered a copyright violation.
Dorothy McMillan
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
Sandi
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
Lum Law Group
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.