Fabric Copyright

[AndyJ]

Hi Ann,

The point about copyright is that it protects a creator from having their work copied without permission. However when you use a piece of fabric, you are not copying the design or pattern on the fabric, so in broad terms copyright doesn't come into play. However the likeness of some cartoon characters and logos associated with them are registered as trade marks and this is where the protection comes from in the case of fabrics which have restrictions printed in the selvage. Put simply, it may infringe a trade mark to use it in the course of trade without authorisation in a way that the public is deceived into thinking the product made from the fabric is official merchandise of the owner of the registered trade mark. Thus making a duvet cover from Miffy fabric is fine if it is for personal use, but doing this on a commercieal basis which implied that the duvet cover was official merchandise could lead to a claim for infringement. Theoretically, using the fabric as is does not mean it is being used as a trade mark in the sense specified in the legisaltion, namely for the purpose "of distinguishing goods or services of one undertaking from those of other undertakings". See also section 12 of the Trade Marks Act 1994. But that won't stop claims or threats of claims being directed at individuals who upset the trade mark owners.

Companies don't expect the average user or home seamstress to understand this in detail and so they use the copyright symbol as a kind of shorthand because most people know what copyright is.

Even if the selvege doesn't say anything about copyright or trade marks, there could still be a risk of using fabric bearing a well-recognised brand in a commercial setting, and so it is advisable to check. The best place to start is usually the website of the company which owns the rights to the character, say like Disney or eOne (eOne deal with the rights to Peppa Pig for example). You can usually find this information via Wikipedia. Alternatively you could try searching the IPO database for trade mark registrations for the character concerned. This can be quite tricky to do where graphic marks are concerned, and usually searching on the character's name, or series title (eg Paw Patrol) should bring up all the graphic marks which apply as well as lots of word marks. If you are certain no graphic representation of the character has been registered as a trade mark (just the name doesn't count) then you are on firmer ground. But even if you are sure you haven't infringed anyone's intellectual property rights, that doesn't necessarily mean their lawyers won't hassle you. The big companies protect their rights quite aggressively, because largescale production of fake goods is a major problem for many of them.

[lindapaulyoung]

Hi thankyou for all the advice above.

So to clarify for myself.
Let's say I design for example a tooth pillow. I will cut up fabric which I bought from a retail store. Then draw a pattern of a tooth by hand on another piece of fabric and sew this to the first fabric. Then continue to add a pocket and embroider a personalised name on this. Sew it together. Attach a decorative ribbon to the item. I alos had a label to say handmade by Mollie. I then decise to sell this item which I have not used a commercial pattern I. I have made/ created this myself and I the. The place I might sell is craft fare or or post item on Facebook marketplace or gumtree, esty.

My understanding is if the fabric has no writing about being liscened I can sell this with no risk.

However if I use say fabric with Disney characters on it am I infringing any UK laws/liscences?

Do I need to obtain permission and who would I obtain this permission from?

Thanks in advance

Linda and Paul

[lindapaulyoung]

Morning

Just to clarify

Purchase from a retailer some fabric. I make up a design (that is I don't use a pattern) cut up the fabric... sew various other fabrics together attach ribbon and some buttons etc.. I also attach a label that says "handmade by Mollie" I then decide to sell what I have created at a craft fair or on the Internet.

What is my position if the fabric I have purchased contains well know cartoon characters eg buzz lightyear of Minnie mouse?

Am I infringing on liscenceing laws? Do I need to seek permission to use this fabric and from whom?

Many thanks linda and Paul

[AndyJ]

Hi Linda and Paul,

There are no copyright implications in what you want to do because you are not copying anything, and something called the doctrine of exhaustion means that a copyright owner has no right to prevent the onward distribution of a work of theirs which has been legally acquired.

The only area in which some caution is required is over infringement of trade marks. Many of the popular cartoon characters are protected as registered trade marks. Trade marks are intended to give the buying public confidence that the goods or services they are contemplating buying are genuine items which originate from the trade mark owner, or their licensees. In practical terms this means you may describe your item as a Mickey Mouse tooth pillow because the words are being used descriptively and not as a trade mark, but because the distinction is a fine one, you should strengthen your immunity against litigation by including a disclaimer when you offer the item for sale, by saying that it is not Disney-authorised merchandise. This should be obvious if you are advertising it as a hand-crafted pillow, but the disclaimer is a more positive way of getting the message across.

[gazsto]

Having read through the comments and replies, I assume the making and fabrication of an item using a licensed print has many restrictions, unless a disclaimer is attached stating that the item made and manfactured is not associated with the famous brand or company. Has anyone had any experience of late, with such a setup and have they received a cease and desist notification regarding items they have produced. Feel this is a very tricky avenue and needs very careful management and skilful word assessment and review to prevent any form of infringement. Might not be such a good idea!

[AndyJ]

Hi gazsto,

The trade mark issue only occurs when then fabric depicts trade marked characters which is actually quite rare. But as you say, care is needed not to fall foul of someone else's intellectual property. And to be fair to the owners of the rights, makers should analyse their motives when they seek to trade in products which clearly only have appeal because of the popularity of the well-known cartoon characters they feature. It is also worth giving a thought to smaller companies who pay thousands of pounds to Disney and the other big brands for licences to produce authorised merchandise only to see others on Etsy or Ebay selling their own versions of substantially the same product at lower prices, without a licence.

[Fluffs mum]

I've been searching for these answers for a long time and find them really informative, so glad I found this thread.

If you wanted to go down the licence route, how would you go about it, purely for using their fabric to have our own creations x

[AndyJ]

Hi Fluffs mum,

Assuming that you know the characters or theme you want to use, use something like Google or Wikipedia to find who owns the rights in the franchise and then go to their website and look for a link for brands or licensing, or perhaps it will say something like 'partner with us', and leave a message. So for instance if you are interested in using fabric featuring the Peppa Pig characters you need to contact eOne then click on Family Brands from the drop down menu, and then click on the graphic where it says Read More and then the link which says 'For any enquiries contact us'.

With Disney characters go to the help tab at the bottom of the main page then select Other questions, then Permissions and Licensing.

Much the same process should apply to other companies. If you can't find specific contact details for their licensing department, just use their main corporate email address and mark you email for the attention of the Licensing department.

Be aware that it is unlikely that the company which manufactures the fabric will have the authority to issue sub-licences for any trade marks to secondary manufacturers who wish to make up articles using their fabric.

[Happylolo]

Hi there. I sell fabric on Etsy, and I currently buy all my stock from various UK wholeseller. Some of that stock includes licensed fabric, such as Disney or Harry Potter. I have been assured by the wholesale shops that their license to print the fabric covers me selling it in my store (as obviously without us their fabric would never get to customers as they don't sell direct).

Yesterday, I received a notice from etsy saying I had been accused of copyright infringement. Warner Brothers is accusing me of selling the Harry Potter fabric that I purchased from one wholeseller without a license.

I have reached out to the wholeseller but have yet to hear back. I'm utterly confused by this. Obviously they have a license to design and print their fabric, and we are supposed to be covered under it.

What could've gone wrong? Thousands of shops sell this particular type, and the many others that they manufacture.

[AndyJ]

Hi Happylolo

You probably need to trace the manufacturer who printed the fabric to get to the heart of the licence issue. I suspect that you will find that it originated in China or elsewhere in SouthEast Asia. What does it say on the selvedge? If it says that it was printed under licence then you are relatively safe. But even if it doesn't say anything, it will be for Warner Bros to show that you knew the fabric was an infringing copy, and if they can't, then the best they can do is ask the court to order the confiscation of the fabric; they would not be not entitled to any damages, because you would only be liable for secondary infringement, that is to say, possessing or dealing in an infringing copy in the course of trade, if it can be proved that you had positive knowledge that you were dealing in an infringing copy. Clearly, if you have an email or some other physical evidence from your wholesaler confirming to you that the fabric was made under a legitimate licence, you are on even safer ground.

[sazemmy]

Hi,
Just some clarity please; I am a home crafter and want to start selling my creations. I have purchased some fabric panels (for cushion fronts) from an online sellers who must get them from the printing company. These designs include Alice in wonderland and Peter Rabbit.
I have bought some plain fabric to create the full cushion and intend to sell the finished product.

Where do I stand with selling these products?

[AndyJ]

Hi sazemmy,

Assuming that the printed fabric was made under licence, using it to make cushions which you then sell would not infringe copyright due the the exhaustion of rights principle which I explained more fully in this thread.

If the fabric was made without a valid licence from the copyright owner (assuming that copyright applies to the characters which are depicted on the fabric - see below), then you might face problems when you come to sell your cushions, if the copyright owner decides to pursue the matter. You would be vulnerable to a claim for secondary infringement, that is to say dealing in infringing goods. As long as you had no positive knowledge that the fabric was an infringing copy, the most that you would risk is the confiscation of any cushion covers you had already made and any of the unmade-up fabric which remained.

Paragraph two would only apply if the characters depicted were subject to copyright. So taking the two examples you mention, if these were from the original illustrations of Alice (created by John Tenniel) or Peter Rabbit (created by Beatrix Potter) then the drawings would no longer be protected by copyright as the respective illustrators died more than 70 years ago. Just to be clear, if this is the case, you don't need to worry about whether the fabric was printed under licence since there is no copyright involved. However if the illustrations are from one of the many modern depictions, such as the cartoon films featuring new versions of the characters, then copyright is likely to exist and will be owned by the film/TV companies concerned. They will undoubtedly wish to protect their intellectual property, and so if the fabric is unlicensed, you can expect the rights owners to monitor the market and try to shut down any unauthorised use of this fabric.

If you are able to contact the online seller and get an assurance that the fabric was made under licence, then you should be in a fairly secure position to proceed. However it is possible that the seller has no idea because they got the fabric through another middle man. I am assuming that the fabric doesn't have any selvedge with details of the manufacturer and any licensing details printed on it. If you don't get this assurance then obviously you face a greater risk that your stock could be confiscated. You could approach the owners of the rights with a sample of the fabric to see if they have authorised it, but this would involve a lot of extra work. If the images are from the Peter Rabbit film, you will probably need to talk to Sony Pictures. For Alice, the situation is much more complicated as there have been a dozen or so animated films and TV programmes featuring the original Alice stories (which are themselves out of copyright) and so it would be a matter of identifying which film the characters on the fabric came from. You would have to do the same with any other characters which are depicted. If they are more modern, like for instance Peppa Pig or characters from Frozen, these will definitely be covered by copyright, and therefore the fabric would require a valid licence.

[AJW74]

Hi, I use discontinued furnishing samples books and ex display fabrics in my products. The majority of the time the fabric is destined for disposal and I am giving them a new use. I have worked out purchase price based on my time taken to make the items only, eg. I once sold 2 identical items one made from calico and one from a very expensive designer fabric for the same price.
On some of the fabric there is no indication of designer, most are non recognisable as they are textured or very basic patterns. I make a point of mentioning I only charge for my time, my question is, is using the samples and ex display fabric without having permission from the designer/company breaking copyright?
Thank you for your help.

[AndyJ]

Hi AJW,

I don't think the fabric in these samples needs to be treated any differently to ordinary fabric you might buy in a shop or online. Even if there was some specific term or condition about how the samples were to be used, this would have amounted to a contract between the fabric maker and the retailer, and since I assume that you were not a party to this contract you are not bound by its terms and conditions.

There is no copying involved, and there is no infringement of the distribution right, which forms part of copyright, as making up the fabric into items such as garments, furnishings, soft toys is covered by the doctrine of exhaustion which I discussed earlier in this and several other threads here. The fact that these were once samples makes no real difference.

I hope that reassures you.

[AJW74]

Thank you so much for your quick reply, it definitely reassured me.