Selling fan merchandise and the laws regarding

'Is it legal', 'can I do this' type questions and discussions.
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girlboss
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Selling fan merchandise and the laws regarding

Post by girlboss »

Hi, I have been thinking about selling custom shirts or prints for specific fandoms and was wondering about the laws regarding it.

I was browsing Etsy and saw many people sell prints and tote bags of movies with a screenshot from the movie, here are some examples:

https://www.etsy.com/uk/listing/9410356 ... t-pack-for

https://www.etsy.com/uk/listing/9241082 ... ion-poster

https://www.etsy.com/uk/listing/1029489 ... -poster-a4

I want to make a shirt with a scene from a movie or show with a quote on it, what should i know about beforehand?
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AndyJ
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Re: Selling fan merchandise and the laws regarding

Post by AndyJ »

Hi girlboss,

Individual scenes (ie a single frame or screen grab) from a film is protected by copyright as if it was a single photograph, and a film poster would be protected as a graphic work.

Let's look at the film scene first. It may not be necessary to get permission before using an image of this sort. There are two ways of approaching this. The first is to analyse if the scene being depicted is too insubstabtial a part of the film to qualify for copyright (see section 16(3)(a) of the Copyright Designs and Patents Act 1988 (CDPA). This is definitely the more risky approach, since it is almost inevitable that you will want to use a scene which fully evokes the film, its stars or its subject matter, hence it is unlikely that the scene can be said to form an insubstantial part of the overall film. The second approach is to rely on the fair dealing exception for the purpose of quotation (section 30 (1ZA) CDPA). Although there is no explicit reference in the statute to quoting an image, this copyright guidance issued by the UK Intellectual Property Office (IPO) indicates (see the bottom of page 3) that images are not intended to be be excluded from the exception. However this exception requires that there is sufficient acknowledgement of the source (ie the film title) and this may not be desirable on aesthetic grounds when the image is put on a tee shirt or bag. The same quotation exception would cover the use of a line or two of dialogue from the film, again, provided that the source is credited.

Using a film poster as your source material is more problematic since you would probably need to use the whole of the graghic part (ie excluding any text) from the poster. This means the copy would not be of an insubstantial part of the poster, and the exception for quotation is also unlikely to apply since amount being re-used falls outside the fair dealing provisions, because your use would potentially damage the exploitation rights of the copyright owner. This latter point is debateable since in general terms film posters are not created to be sold, but merely to publicise the film. However the fact that various third party companies purchase licences to reproduce film posters specifally to supply the fan market means that there are economic exploitation rights involved. On balance, I would stay away from the idea of using a poster as your source material unless you get permission.

And a final point of using Etsy merchandise. If you decided to use a Etsy seller's product as your source material you would need to be very sure that a) they had permission or a lawful excuse for using the image in the first place and b) they were able to authorise you to use the image by way of a sub-licence. Since it will be difficult, if not impossible, to assure yourself about both of these things, I would not advise using images from Etsy products as your source material. The mere fact that such materials are openly available on Etsy does not prove that they are legal. It may just be that the copyright owner hasn't yet got around to pursuing the seller to cease and desist.

I hope this helps.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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