Fabric Copyright

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natnatheath
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Fabric Copyright

Post by natnatheath » Thu Jan 10, 2019 10:09 am

Morning 😊
Question;
If I buy a licensed fabric, say Disney, and I would like a dress made but can’t sew...
Am I able to give this fabric to a seamstress to make me a dress? I would pay for their time and pattern etc, but would said seamstress be breaching any copyright laws?

TIA ✨

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AndyJ
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Re: Fabric Copyright

Post by AndyJ » Thu Jan 10, 2019 7:33 pm

Hi natnatheath,

There is no prolem with getting seamstress to make up a garment using this fabric, as no copy is being made.
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Re: Fabric Copyright

Post by natnatheath » Thu Jan 10, 2019 9:36 pm

Thanks AndyJ, it was more the Disney print because of the copyright characters?

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Re: Fabric Copyright

Post by AndyJ » Fri Jan 11, 2019 9:40 am

Hi natnatheath,

Sorry if I was a bit brief (it makes a change) in my earlier reply. As the fabric has been manufactured under licence, use of the Disney characters in the fabric is legal. Then, making up the fabric and displaying it in the form of a garment is covered within the terms of the licence. This is called an implied licence since obviously there would be little point in a manufacturer obtaining a licence and then having to say to their customers, 'sorry, you can buy this but you can't use this fabric to make anything without getting permission from Disney'. This situation is covered by the so-called exhaustion of rights doctrine (in the USA it's called First Sale doctrine). This doctrine says that once an authorised copy (like a book, CD, DVD or poster etc) is sold, the copyright owner loses most of their rights over what may be done with the item concerned. In other words the new owner may sell, give away, lend or destroy the item without needing permission.

While exercising their distribution right in this way, it is possible for a copyright owner to exclude or reserve certain other rights from the process. So, for instance you will frequently see in printed books, the reservation that the book may not be resold, hired out or lent in any form of cover or binding other than the one in which it was sold. This is the publisher exercising their right to prevent someone, for example, buying a paperback book, rebinding it in a hard cover and selling it at an increased price as a hardback edition, in competition with the publisher's own hardback version. These days the reservation is more likely to forbid the creation of a digital version of a book for storage in a retrieval system. There are some other rights provided under the EU Rental Directive which further restrict what can be done with a legally purchased product. For example the Rental Directive ensures that rental companies, like the now defunct Blockbuster, pay a fair remuneration to the distributors of films for every time they rent out a DVD of a movie. However the rental directive does not apply to private users.

Incidentally, and with absolutely no relevance to your question, the Exhaustion Doctrine does not apply to goods which are distributed (not sold) under licence, usually in digital form. So for instance ebooks are rarely sold as a 'product' which the purchaser owns for ever and to which the Exhaustion Doctrine applies. Instead the text of the ebook is usually made available under specific licence conditions which means that access to it can be terminated under certain circumstances, and the ebook cannot be transferred between devices or resold by the purchaser. Similar conditions apply to streamed music, films and TV programmes. Software (computer programs) occupies a peculiar position in this labyrinth of rights. If it has been distributed on a disk then the Exhaustion Doctrine applies (see the EU Software Directive) but if it is issued as a download and it is clearly specified as subject to a hire agreement, the conditions of the End User Licence Agreement may override the Exhaustion Doctrine.
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Re: Fabric Copyright

Post by ailsadell » Fri Jan 11, 2019 8:01 pm

Hi. New here but I’m wondering if I could stretch this a little further..,

So you say it’s ok to make items with Disney fabric, but what about the age old question of selling craft items made in their fabric... items that are not in anyway going to replicate a Disney product/costume/item already sold.

I fully understand what your last post is saying but I am fed up of hearing forums stating the old tennis match that is you can/you can’t etc. Could you please clarify it for me.

I hear time and time again Disney took a poor crafter to court and she lost her house etc etc... is this likely?

Thanks.

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Re: Fabric Copyright

Post by natnatheath » Fri Jan 11, 2019 9:46 pm

Thank you AndyJ that’s very helpful.

Thanks for adding in the extra detail too 😊

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Re: Fabric Copyright

Post by AndyJ » Fri Jan 11, 2019 10:57 pm

Hi ailsadell,

I assume you are asking about crafting which involves recreating Disney characters or costumes (like an Elsa dress from Frozen) or merchandise which uses certain words associated with Disney, like 'Mickey Mouse' or fabric which features Disney characters but which is not licensed. In all of those scenarios, Disney is justified in defending its intellectual property, often using other parts of the law. Quite often this involves trade mark law, or passing off which operates in a somewhat similar way.

Then there are the instances when there probably hasn't been any infringement which is actionable, but Disney's lawyers send out the cease and desist letters anyway because they can afford to, and this has the effect of frightening people off most of the time. It's called being pro-active but on occasions it earns the corporation a bad reputation especially when the small people they go after pose no real threat to Disney's wealth making operations.

I'm not sure if this answers your question, but if not, try doing a search of the forums here as we've covered different aspets of this on a number of other occasions.
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Re: Fabric Copyright

Post by ailsadell » Fri Jan 11, 2019 11:07 pm

Hi. Many thanks for your reply. Sorry I will clarify what I mean ...
People who sew/embroider may make patchwork quilts/bags/cushions etc made using licensed Disney fabric. Disney have printed on the edge of the fabric by the fabric manufacturer they gave license to, “that it is for personal use only”
and the crafter of the items are not allowed to sell them.
Does the “first sale doctrine” (or U.K. equivalent) rule apply in that the buyer of fabric doesn’t have a contract with Disney and therefore Disney can’t stipulate that in the end user or can they stop you legally selling items made with licensed fabric?
Again, I don’t mean to make anything that is in Disney form, or dress like a character etc... merely a hand crafted item made in the fabric and sold on eBay/craft fairs etc.
I personally have a gut feeling the cease and desist letters are simply to scare but please advise if I’m wrong?

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Re: Fabric Copyright

Post by ailsadell » Fri Jan 11, 2019 11:12 pm

... and is there a way to find out if Disney did indeed take a crafter to court where she lost and was fined a huge sum, enough to loose a property?

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Re: Fabric Copyright

Post by AndyJ » Sat Jan 12, 2019 9:29 am

Hi again ailsadell,

Yes in the UK the doctrine of exhaustion of rights would apply to fabric and a purported licence term printed on the selvedge would have no effect. There are several reasons for this, mostly involving other areas of the law, such as contract law.

Putting it as simply as I can, when Disney licenses a company to make a product, whether it is a figure, a book or fabric, bearing some of Disney's intellectual property, the contract is between just those two entities, and only those two entities are bound by any licence restrictions. Between most end users (crafters in this case) and the manufacturing company which is operating under licence there will be a minimum of two intermediaries, usually including an importer, a wholesaler and a retail outlet. If you buy online it is possible that a couple of these steps may be combined in one company, but it is highly unlikely that an end-user would deal directly with the manufacturer. None of these intermediaries are bound by Disney's original licence terms. If the manufacturer was required to ensure the terms were adhered to throughout the supply chain, they would need to have in place the necessary trading terms which bound the next link in the chain to only sell the fabric on the terms stipulated by Disney. When the end user buys some fabric they would need to be specifically informed by the retailer of the limitation before purchase, and agree to be bound by that limitation. Failure to do this would be contrary to the Sale of Goods Act 1979, and the Unfair Contract Terms Act 1977 and their subordinate secondary legislation. An unfair term is one which it is not fair and reasonable to include in a contract of sale "having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made". There is plenty of caselaw to show that any term which is unusual in the circumstances (ie is not normal practice) must be drawn to the customer's attention before the point at which the sale is concluded, or the term is not binding on the customer (see Regulation 8 of the Unfair Terms in Consumer Contracts Regulations 1999). Informing the customer via a message on the selvedge would not come close to meeting this requirement.

There are just a couple of other points worth clarifying. Often, Disney's threats of action will involve trade mark law. Many Disney characters are registered as trade marks and this would prevent someone from selling goods from another, unauthorised source using any of the trade marks. I can't sell a car with a Rolls Royce badge on it if it isn't actually made by Rolls Royce. However if an item legitimately bearing a registered trade mark is sold then there is no infringement of that mark if the item is subsequently re-sold, because of the doctrine of exhaustion. I can sell my Rolls Royce complete with its badges, and even advertise it as a Rolls Royce, and none of that would infringe any registered trade mark (see section 12 of the Trade Marks Act 1994). Sub-section (2) of section 12 TMA then leads on to another of Disney's claims, namely, that the making up of the fabric into something else (a duvet cover for example) would be an unauthorised adaptation under copyright law (contrary to section 21 of the Copyright Designs and Patents Act 1988) and also nullifies section 12 of the Trade Marks Act. This is nonsense. In making up the fabric, the underlying copyright work (the artwork printed on the fabric) is not altered or added to, and in any case that is the purpose for which fabric is sold. Secondly, section 21 does not apply to artistic works which is what the printed fabric qualifies as. Similarly with section 12(2) of the TMA. A trade mark is used to indicate the origin of the goods being sold. Irrespective of what may subsequently be done with the fabric, it remains the genuine licensed product and therefore the presence of, say, Mickey Mouse images, all over a duvet does not infringe the trade mark (see section 10(6) TMA).

The nearest Disney gets to having a valid claim is under the commonlaw tort of passing off. You can read about what constitutes passing off here. Suffice it to say that Disney might argue that Mrs Sally Crafter selling a duvet made from Mickey Mouse patterned fabric using the description 'Mickey Mouse duvet cover' might in certain circumstances lead a potential buyer to think that this duvet was a genuine Disney product and that when the stitching came apart after just a few days, this would damage Disney's goodwill. It is not an argument which, as far as I am aware, has ever been run in a UK court, but it might just succeed, especially if the workmanship of Sally Crafter was particularly poor. To prevent a passing off claim, sellers of goods made from Disney-licensed fabric need to ensure all their advertising and labelling has a prominent disclaimer which says that the duvet etc is not manufactured by Disney, just the fabric. If that is done, then using the words (in this example) 'Mickey Mouse' becomes purely descriptive and is permissible (see section 11(2)(b) TMA).

And lastly, I am not aware of a case like the one you describe in which a crafter was 'fined' a huge sum. If there has been such case then it is likely to have been in the USA where, if statutory damages are awarded, the cost to a defendant can be huge. If such a case exists, I would think it is probable that the crafter failed to defend the suit or was poorly advised, allowing Disney's legal team to get a default judgment (ie they didn't need to prove the case against the defendant). Intellectual property case decisions in the US courts can vary wildly.
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Re: Fabric Copyright

Post by natnatheath » Sat Jan 12, 2019 9:00 pm

Great question ailsadell.

That’s added to the answer you have already given AndyJ.

I can now find a seamstress to make a dress with licenced Disney fabric and not have to worry about copyright fines/trademark.
I’d make it myself but I can’t sew!

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Re: Fabric Copyright

Post by ailsadell » Sun Jan 13, 2019 2:10 am

Great thank you so much for a well informed reply. Yes the case in question was I believe reportedly in the US but it is only something I have heard of on forums and have not found anything concrete to confirm.

All is pretty much as I expected in that no contact has been even made between Disney and the end user. Am I right to believe that even though a seller may state the fabric can only be used for personal use, buying that fabric is not necessarily accepting the terms of a contract if there was one? Is that something that would hold up in a court?

Kind of really want to belt and brace this as there is a lot of scaremongering out there.

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Re: Fabric Copyright

Post by AndyJ » Sun Jan 13, 2019 7:57 am

Hi ailsadell,

If the retailer/seller made it perfectly clear at the time of sale that there was this specific limitation on the use of the fabric, and the buyer consented to this, then practically speaking a contract would be in place. However that contract would between the retailer and the customer, not Disney and the customer, and so the only person who could sue for breach of the contract would be the retailer. Clearly that would not be likely to happen, and so to all intents and purposes, the contract would be theoretical.
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Re: Fabric Copyright

Post by ailsadell » Mon Jan 14, 2019 8:35 pm

Ah brilliant. So helpful. Many many thanks

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