Monday, November 8, 2010

Making Coffee Sleeves from Purchased Items

Dear Rich: I am producing coffee sleeves from fabric purchased from fabric stores, thrift shops, garage sales and flea markets. I don't always know if there was a copyright on the material. Does copyright ownership persist through secondary resale of fabric, wrapping paper, or similar materials? Does a company or association (NFL,AFL,NCAA, etc) with trademarked imagery on such material have rights to prevent any commercial use of these materials? Could the statement "Intended For Personal Use Only - Unauthorized Use Prohibited" be considered threatening or intimidating behavior - harassment? Besides, making sleeves directly from the above mentioned fabrics I also provide the service of reformatting a reproduced digital copy of a client's previously purchased product such as images from a book, photos, fabric, etc - recreating a new fabric from those reproductions in the shape of a coffee sleeve. Am I violating copyright with either of these activities? I have contacted many of the producers and copyright owners requesting licensing to use the materials and have not received replies. When do I have the right to use materials where I have made a good faith effort to obtain permission and licensing? When I do make contact I am often asked what I will use the materials for only to then have them deny me licensing. When does the law begin protecting the individual and not just the corporate entities with huge bankrolls? Wow, that's a lot of questions (and sorry, we had to cut your letter in half but like our friends, The Residents, used to say, "Editing is no sin"). So let's see if we can knock off your questions one-two-three.
First sale doctrine. The first sale doctrine provides the right "to sell or otherwise dispose" of authorized copies of copyrighted works so as a general rule you will probably be okay using fabric that includes copyrighted images (assuming it's not bootleg fabric). There are limitations and complications. The more you split up a purchased work -- for example cutting out prints from a photography book and reselling them as framed works -- the more likely someone will come after you. We explained these principles here and here
Copying from books. You will not be okay copying images from books or photos and applying them to coffee sleeves. In that case you're not reusing a copyrighted work, you're actually making copies and that's prohibitedunder copyright law. 
"Intended for Personal Use." We wouldn't worry too much about statements such as "Intended for Personal Use" unless as a condition of buying fabric or some other product, you entered into a license. That fact should have been evident at the time of purchase -- often a statement such as "By breaking the seal on this package, you are entering into a license, etc. "
Using trademarks. Even if you purchased authorized fabric, you're almost always violating the law by placing another company's trademarks on your product because it is likely to confuse consumers that the company that owns the trademark is associated with your venture. Consider the situation from the trademark owner's perspective. Would you want your mark to appear on a product that you didn't make, had no control over, and for which you receive no revenue?
Making a good faith effort. Making a good faith effort to find the owner of rights doesn't get you off the hook for infringement but it is likely to reduce the damages if someone comes after you. For this reason you should always document your searches.
Blah blah blah Dept. As for your question as to why (or whether) the law protects corporate entities with huge bankrolls ... the Dear Rich staff believes that -- considering the terrible governments and laws that exist in the world today -- the U.S. copyright law and our federal judges are relatively fair and balanced. We think your beef is with the way the legal system (not "the law") can be gamed by fat cats because the well-heeled can better survive the costs of legal enforcement. In truth, digital copying of movies, music and books has reduced many of these "huge bankrolls" (consider the demise of EMI  for example).