I apologise in advance for the length of this article.
I can only assume that you are here because you would like to know more about Copyrighted fabrics and their legal use.
Before we get started you may want to go get a cup of tea or a glass of wine, visit the little girls room and take the phone off the hook. We may be here a while......
The attempt at creating a straightforward standpoint with regard to use of copyrighted fabrics is hindered by the fact that the USA and UK have their own rules. Often, they are conflicting and a lot of information seems to be very open to interpretation. My findings are a culmination of rulings from the UK and the USA, as both conform to the Berne Convention.
The Berne Convention was set up in 1886 and sought to establish a system of equal treatment that harmonised copyright amongst parties, the agreement also required member states to provide strong minimum standards for copyright law. (https://en.wikipedia.org/wiki/Berne_Convention)
The treaty was signed on 9 September 1886, by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the UK. The UK didn't fully implement the concepts until the creation of its own Copyright, Designs and Patents act in 1988.
I hope that regardless of which side of the pond you are, this article will still give you a good grounding in the subject and that you can find it helpful and informative.
Before I begin I would like to make 2 very important points.
Firstly, I am not a legal professional. I did take some legal classes at university but these were on the subject of Environmental Legislation and not copyright. I am however open minded, pragmatic, honest and fair. The conclusions that I have came to are as a result of hundreds of hours of reading, meticulous research and liaising with legal professionals. I do not produce or distribute items made from copyrighted materials either for profit or for personal use. I am completely impartial and only engage in the subject because I find it fascinating and I hope to help others make more informed decisions based on the information that I can obtain. If you are reading this in the UK then I would advise you to contact your local Trading Standards office if you are in any doubt that your business could land you in trouble. I have always found Trading Standards to be both helpful and very friendly.
Secondly, I think it’s important to remember the context of the videos I make and the articles I write. The crafter that I keep in mind while writing is someone who has gone to their local fabric shop, purchased a couple of meters of legally licenced fabric and intends to make something like a cushion cover with it. This article was written with a very specific and targeted question in mind; “Can you legally sell items made from licenced and copyrighted fabrics”. I am not referring to the self printing of fabric, creation of copyrighted prints or the use of svg files to create embroidered or vinyl characters. That’s a whole other article right there.
Still awake? Fantastic, lets continue!
There is very little UK case law to refer to with regard to copyright fabrics.
The case of LB (Plastics) Ltd. v. Swish Products Ltd. Is an excellent example of how a 2D image can't be used to create a 3D model of that image. In this case it is referring to a plastic corner component and not a character, but as of the Copyright Designs and Patents Act 1988 it still applies. So, based on this ruling if someone purchased some character fabric they would not be able to then create a 3D model or toy of that said character.
In the UK we have the CD&P Act 1988, http://www.legislation.gov.uk/ukpga/1988/48/section/17 which referenced the definition of copyrighted work. The most relevant in this case being section 3; “In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.” Again as we are not talking about creating a 3D "model" this isn’t what we are referring to. What we are talking about is making an object that although includes a material "component" including work that is subject to copyright it does not contain a “copy” of that image.
In international copyright law, you can not create a “derivative work” (USA) or “adaptation” (UK, Berne Convention). So fundamentally the case of whether something can be created and sold relies on whether it is defined as either of these.
A “derivative work” has a very specific definition in US Law,
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. https://en.wikipedia.org/wiki/Derivative_work
The Berne Convention is a little less specific (like that’s helpful). Interestingly in the CD&P Act 1988 the refers to “adaptions” as; (1)The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work. No mention of artistic works at all, curious…..
As I referenced in my video (that you can find HERE if you haven't seen it), the case of Precious Moments v. La Infantil 971 (1997), which refers to the classing of a “derivative work” to be of original and creative design for it to be copyrightable. There are 2 cases that were used in the argument, both were based around whether a note card could be mounted onto a ceramic tile and then sold. The first Mirage Editions, Inc. v. Albouquerque A.R.T Co. (1988) found in the original artists favour. The Ninth circuit concluded that the first sale doctrine only applies if the art had been kept in its original state. Because the pages had been removed and “adapted” this constituted a derivative work.
However in the second case of Lee v. Albouquerque A.R.T Co. (1997) the court found in A.R.Ts favour. The district judge held that “originality” is crucial to the definition of a derivative work. He concluded that the resultant product produced by A.R.T had no original value and therefore was not a derivative work.
Now, based on the USA definition of a derivative work you could say, “well in that case the original artwork has definitely been transformed, as it has been turned into a cushion cover where as before it was just fabric.” However it is only the artwork and not the medium that is copyrightable. In order for the resulting product to be classed as a “derivative work” it must be the image that is altered. The fabric itself is not copyrighted only the image, and the image has not been recast, reformed or adapted in any way. Therefore something made with copyrighted fabric cannot be classed as a derived work. This was confirmed in the case of Lee v. A.R.T in 1997.
So why do fabric producers get so shirty about you using their fabric?
Well, I think its for 2 main reasons. The first is is down to reputation....
Say someone buys a baby bib. When you buy an official Disney item you can be sure that it has gone through every possible safety procedure imaginable. However if you purchased one from a market stall or off Etsy for example, how do you know if it conforms to safety procedures? From my experience no one who makes items for children would ever knowingly make something that may pose as a health risk. But do you think that Disney would want to take that chance? Not on your nelly! Can you imagine the PR disaster if something happened to a child that was wearing a "Disney" branded item, even if it wasn't made by Disney?
The second reason (and call me an old sceptic) is just down to money.
Why on earth would Disney be happy making and selling items made from their fabric when they can sell you something themselves? Simple.
Ever wondered why copyright fabric is so expensive? It’s because that is the only way that the original artist can capture the value of their contribution in a finished product.
From all the information I have seen so far, I can only conclude that you are legally allowed to create and sell items made with branded fabrics (so long as you stick within the restrictions I mentioned in my video).
As I said previously, I have absolutely no agenda and am not biased one way or another. Hopefully you find this information helpful.
The images used in this article have been used under the Use for Educational Purpose Policy. Links have not been been provided as to protect the original owner as they are often used as an example of what not to do. If one of these images is yours and you would prefer that we didn't use it then please email us at firstname.lastname@example.org and we will be happy to replace it.
For more information see https://www.gov.uk/guidance/exceptions-to-copyright#teaching