Monday, June 13, 2011

Some words about COPYRIGHT

It seems it’s time to give this lecture again…I really get weary of going over and over this topic but as new people enter the crafts and arts fields they need the answers so here are mine as I understand them:

COPYRIGHT and how to avoid getting sued:

OK, here’s the simple, simple, simple version:

If Grannie goes to JoAnn’s Fabrics and buys a bunch of stuff to make her grandchild a Disney quilt then GIFTS said quilt to the grandchild on the face of it unless there is something we don’t know no copyright has been infringed.

Same thing if Granny is in a swap with a friend and they make things for each other’s grandkids and trade them to each other-that’s OK.

Same Grannie, same store, same quilt however this time she takes it to a local craft show and sells it-

SELLS IT

Copyright has been compromised and infringed.

The Chinese and others have done a terrific job of ignoring copyright laws, trademarks and other protected forms.

For years there was a sort of freewheeling hippiefied Laisse faire about crafts and handmade stuff and copyright.

Crafters saw that there was profit in knocking off things designed by others and especially characters like Disney, Warner Cartoons, Marvel Comics, Hello Kitty, Holly Hobby, Strawberry Shortcake etc. , etc.

Let’s take a simple well known character and discuss copyright.

MICKEY MOUSE.

Mickey is the product and artistic property of Walter Elias Disney and the Walt Disney Company.

Walt drew him, he owns him.

Some company wants to make Mickey Mouse T shirts so they go to Disney and they negotiate a LICENSING AGREEMENT.

Licensing means that Company X has paid Disney or will pay Disney for the use of Mickey under a carefully outlined contract and agreement.

My first licensing contract for the use of my artwork by Candamar Designs as needlework kits was about 15 or 20 pages and covered pretty much any contingency for the use of my art as KITS that could be sold by Candamar in exchange for paying me a ROYALTY.

Since I am not Disney my contracts was a little looser and more freewheeling but I have seen contracts that specified the exact colours that can be used to represent Mickey, what he can and cannot be printed on and the exemptions from one contract to another because two companies have licensing agreements for Mickey T Shirts and one cannot infringe on the other.

There also must be full disclosure of all existing agreements and what they cover although the MONEY parts are usually protected and not shared.

Copyright means exactly what it sounds like-the right to copy or reproduce art.
Don’t ever think that because art is OLD it is free to use.

Some museum buys a Rembrandt for a gazillion dollars they hold the copyright on that piece of art.

Companies wanting to use said art on notecards, sheets, t shirts and posters will need to get in line and negotiate a contract.

Now little ole YOU finds it on the internet and you save a copy, you incorporate it into a trading card or collage and you TRADE that card; probably no problem.

You turn it into a digital cross stitch pattern which you sell on your web site-you may get sued because down the way XYZ Company has already signed a contract for cross stich kits.

Both the owner of the copyright AND the license holder will have lawyers sending you letters to cease and desist.

By the way you have to hand over any stock you have on hand of what you have made using the design AND any computer files, disks etc. as well that pertain to the design and the cross stich kit you made.

If they sue and WIN-and they will win trust me-you will have to open all your financial records and pay damages for infringement.

If you have a sick feeling in your tummy right now hold onto it-it’s righteous fear and is to be respected.

OK another example:

You hand make charm bracelets and amongst the beads and charms you PURCHASE either retail or wholesale you make a few charms yourself using faces cut from prints of Waterhouse paintings because they are pretty faces and look great in your arte nouveau theme.

You are in trouble-any portion on that painting is copyrighted and if you sell your charm bracelets you are infringing on copyright.

Doesn’t matter that they are handmade.

You also may not draw your own Mickey Mouse to use if the design is recognizable by a reasonable person as Mickey Mouse-same for Spiderman. Daffy Duck and SpongeBob or any other character now or ever used in popular culture UNLESS the copyright has been allowed to lapse.

Be sure the design is in public domain-go buy a Dover Clip Art book and use that-you will be safe under their rules of use which are printed in the book-much better than turning over the keys to your HOME to some lawyer because you didn’t bother to do some simple research.

I can see you rolling your eyes and thinking to yourself, “Oh come on Disney doesn’t care about little ole me and how are they ever going to know I made an Ariel necklace and sold it in Hills, Minnesota (population 5,000)?

Because they LOOK.

They send out people to check craft and art shows and swap meets and those cute little craft malls…they buy the item for evidence and then the lawyers get involved.

Big companies have enough problems with China they don’t need YOU creating further issues.

You are probably a little angry because you think you should have the right to use the big corporations’ designs, after all they make millions and you are barely scraping by.

How would you feel if the reverse happened and a big corporation did it to YOU?
Happened to me several times.

A British Company that makes candy tins used a piece of my artwork on a candy tin sold all across the UK, a rubber stamp company borrowed one of my designs off a needlework catalog and made it into a rubber stamp, a guy who makes stained glass boxes BOUGHT a piece of my framed art and decided that gave him the right to print it on glass and include the design in his products which he sold both at craft shows and wholesale to gift shops.

I can tell you I wanted to sue these people into oblivion but the best first step is a warning so they know that YOU know what they are doing and an order to cease and desist.

The courts LOVE it when one is thorough and reasonable-benefit of the doubt and allowance for an “OOPS am I bad?”

After that if they ignore you all bets are off and you WILL win the suit-collecting damages may be another matter.

I urge you to READ-research the internet and Google up subjects like COPYRIGHT LAW, TRADEMARKS and other such areas that may affect you and what you do.

NEVER ASSUME!

Know your business and what laws affect it and do not be a scoff law-you have no rights beyond those outlined in the business laws and codes of ethics of your country, state or province.

Of late they have begun copyrighting and protecting the use of images of people like Chaplin, Marilyn Monroe, Elvis etc., artworks, cartoons, songs and jingles, phrases and lines of text from songs, movies and poetry.

There are even copyrighted design elements like the shoes with the red soles, the Chanel C Logo…it goes on and on.

Trade it, give it away, make it for the Grandkids but do NOT make it to sell even at the church Bazaar.

If in doubt and you are a serious crafter find a lawyer, pay him a few bucks for an hour or two of his time and get professional advice about this important topic.

The tighter the economy becomes the more litigious this area will become and the big guns like DISNEY, Warner’s, Marvel etc. are not playing around-they have HUGE legal departments full of very bright men and women who are paid to make sure you don’t make a profit off their products unless you have the right to do it.

One last thing-KITS:

You will see copyrighted kits for felt ornaments, tree skirts etc.-they are meant to be purchased, finished and used NOT for the purpose of your acquiring a pattern-don’t do it…

Use Mickey as a pattern and you will spend some quality time in court-the company that made the kit paid the royalty NOT YOU-because you bought the kit on the half price after Christmas Sale at Michael’s does not buy you the right to use it as a pattern.

If you want to make extras for the family just don’t tell me about it please.

Ephemera sheets, digi stamps and other new forms on the internet should come with a clear explanation of how they may and may not be used.

If they do not, contact the seller and ask for clear information on how you may use the product especially if you are SELLING you items!!!

3 comments:

  1. This is very helpful!!! One of the best examples about copyright!!!
    I am grannie!!!
    thanks!

    ReplyDelete
  2. Yes, very 'user-friendly' and to the point.
    When I was heavy into quilting, copyright was a GI-NORMOUS problem. Buy a book, let all your freinds copy the patterns and then make stuff to sell in the local shows. Etc, etc, etc.

    Sometimes it's good to re-visit this little problem to jar memories of some and warn those that don't understand.

    Thanks Rick. Hope you are up and at 'em and feeling great.

    ReplyDelete
  3. Rick has asked me to leave this comment:

    I'm going to jump in here and share my 2 cents worth on copyrights.

    Rick is correct about original art work. It belongs to the artist and
    you need their permission to
    use it in your art work.

    Collage sheets, unless they are original to the person who put them
    together, are only copyrighted in so
    far as you can't reproduce them, as a whole, for resale, or to give
    to your friends.
    Most of the collage sheets use images that are copyright free. I
    myself have bought many old photos
    that I can use for collage sheets, and only the sheet as a whole
    would be copyrighted, not the photos.

    I have purchased CDs with hundreds of old photos or labels and so on.
    I can do with them as I wish,
    I just can't copy that CD and sell it or give it away.

    All your own art work is copyrighted, the minute you sign it and put
    a date on it.

    Francine

    ReplyDelete

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