You can type in just about any search term relating to an officially licensed character on Etsy and find hundreds of people willing to sell you unlicensed merchandise featuring that character. I found 50 hits for the crystal vulptexes that appeared for all of five minutes in Star Wars: Episode VIII alone.
Are the companies fine with this, or does Etsy have an agreement, or what’s the Straight Dope?
It’s illegal, at least in the US, to sell goods with licensed characters without obtaining permission from the license holder, so either the maker obtained permission (possible, but not likely) or they are waiting for someone to catch them, and then they will stop selling them. Etsy apparently does some policing, but I think for the most part people look the other away and let it happen.
Yep, that’s pretty much what’s going on. People sell self-made stuff with copyrighted or trademarked material on it without having a licence, either because they don’t know about the legal restrictions or because they know but hope that nobody will bother. Every now and then someone gets a cease-and-desist letter from the owner of the IP rights (example). Then they complain about it but comply. The others continue.
There are some contexts in which it might nor require licensing or permission - if the work can be considered to be satire or parody - such as figures which are caricatures of the original, or artworks satirizing the character’s behaviour.
I suppose that wouldn’t stop Marvel or Disney from dragging the creator through an expensive legal process though.
As long as it doesn’t get too lucrative, this sort of thing tends to be treated similarly to fan works. The owner would be fully in their rights to stop it, but, unless they have a competing product, they don’t see it as a big enough deal to anger the fans.
Somewhat related question. One can buy fabric with trademarked graphics on it - MLB logos, Star Wars characters, etc. Presumably a legit manufacturer has licensed the trademark from the owner. Is there an implied license for anyone who buys that fabric and makes something to sell? Or does the trademark owner get a license fee at every step in the process?
The seller of the dress or curtains or whatever made from the fabric would also need permission from whoever holds the rights to the logo, barring some fair use provision like satire. Legally, of course; practically I imagine violations are common and commonly overlooked.
As an example, there has been an Elmo infestation in Times Square for a while. (Now including multiple other characters). What I read about this said that as long as the costumes purchased were manufactured under license (i.e. bought from an authorized source) the companies holding copyright on those characters have no control over what people wearing then do or do not do.
About 5 years back my wife had gotten some Lego branded paper stock from a craft store and made/sold large orders of custom birthday invitations with them on Etsy. She did receive a cease/desist letter from Lego and quit making them.
So the courts are NOT supposed to enforce illegal contracts.
So if one of these artists charges $500 for an item using an unlicensed character and then fails to deliver it would a small claims court just throw the case out if someone sued because the product offered is technically illegal?
I own a Hawaiian-style shirt, made from what was undoubtedly licensed Star Wars fabric. I bought it from a mom-and-pop vendor at a gaming convention; they had a ton of shirts which they had made from various nerd-culture fabric patterns (Star Trek, comic books, etc.). I highly doubt that they have any licensing agreements with the IP holders, and I’m also reasonably sure that the only money that the IP holders see from the sales of those shirts is from whatever companies made the original fabric.
It sounds to me like someone took this legitimately licensed fabric and made it into clothing without adding any logos or ornamentation. For example, perhaps there were small Superman logos woven into the fabric, and then someone cut it and sewed it into a t-shirt, but did not add a large logo to the chest area. If they had made their own logo and put it on the chest, that would be a trademark violation, but simply making a t-shirt would be to use it for the exact purpose as intended, right? If so, then “whatever companies made the original fabric” are the only ones who did anything creative with the trademark, and if they paid for those rights, then everyone else is in the clear.
That is correct.
I know someone with a well equipped shop that started making sports signs with team logos and selling them on facebook (KC Chiefs Arrowhead, etc). I looked up the NFL licensing requirements.
This is an interesting question I hadn’t considered. Here are some things I found.
Here is an article on this exact topic, and it comes from a website with “legal” in its name, so it must be right.
Their conclusion is that yes, you can make and sell things if the fabric design is under copyright. Copyright would limit reproducing the fabric, not creating something from the fabric. First sale doctrine says you can do whatever you want with the fabric (other than copy it).
Trademark is different than copyright, and has different rules. This other article mentions that briefly.
It mentions a court case, Scarves By Vera, Inc. v. American Handbags, that as long as it was clear that the handbags were not endorsed or made by Vera, then it was OK to use Vera scarves to make the handbags, even though the fabric contained the trademarked Vera logo.
Other advice seems to be to name your product carefully. Not “Star Wars Hawaiian shirt” but “Hawaiian style shirt made from licensed Star Wars fabric.”
Bottom line is it probably is legal, perhaps with a disclaimer, but do you really want to be in a legal fight with Disney, even if there is a chance you’ll prevail?
How does Woot handle this? Presumably they’re getting permission?
