What can you do with licensed fabric? Is there a difference between what the legal protections are and what’s practical for your creative business?

That’s exactly what we’re going to cover in this week’s episode of Ask Kiff.

Watch the video | Read the show notes | Read the transcript

Show notes

• Watch last week’s video on patterns and shrink-wrap licenses here
• In this post, learn how to create contracts with your website visitors using a checkbox

Transcript

We’ve all heard those horror stories through Etsy or Facebook groups about people’s listings being taken down because they were using licensed fabric.

So what can you do with licensed fabric? Is there a difference between what the legal protections are and what’s practical for your creative business?

That’s exactly what we’re going to cover in this week’s episode of Ask Kiff.

Hi! I’m Kiffanie Stahle founder of the artist’s J.D. A place designed to add ease to the legalese of running your creative business.

This week’s question comes to us from Victoria in Massachusetts, she asks:

What can I do with fabric that has copyrighted characters on it?

What is licensed fabric?

Let’s start with the premise of what licensed fabric is.

Licensed fabric is not a license between the person who owns the copyrighted characters, the person who owns the NFL logos, the person who owns that that content and you.

The license is between the fabric manufacturer, the person who is printing those characters and designs and logos on the fabric, and the brand owner or copyright owner themselves.

So the person who owns the trademark or copyright is entering into a license agreement with the person who is printing the fabric.

There is no license between you and them. The license only goes directly to the fabric manufacturer.

Will copyright law prevent you from creating products with licensed fabric?

And what’s the purpose of fabric?

When we buy bolt fabric, when we buy fat quarters, when we buy pre-cuts the intent of the fabric is to use it.

And unless there is an agreement between you and the person you’re purchasing from, there are no restrictions on how you can do that.

In last week’s video, we talked a little bit about those old shrink-wrap licenses. That when we bought the software, we weren’t actually purchasing the software. We were purchasing a license to use the software.

So legally, there is no license between you and the person who owns the copyrighted characters. That license is direct with the fabric manufacturer.

You didn’t enter into a contract when you bought the fabric. To say these are all the restrictions on how you can use it.

And even if you did, I’m a little curious about how that’s going to be enforced, because the whole point of fabric is to cut it up and sew with it.

So from a legal standpoint, I’m of the opinion, that there are some attorneys who are going to disagree with me, but I’m of the opinion that you can do whatever you want with it.

So from a copyright standpoint, there is no way that they can protect how it is that you are using the fabric.

Will trademark law prevent you from creating products with licensed fabric?

From a trademark standpoint, we need to get into it just a little bit differently.

So copyright is protecting the actual design on the fabric. The actual logo, the actual characters, and those kinds of things.

Trademark is protecting the logo, the brand names, and the association.

And so sometimes I see listings that get into hot water, not for copyright reasons, but for trademark reasons. Because they make it appear that they’re associated with this brand.

So from a trademark standpoint, we need to worry about consumer confusion.

And we need to worry about if a consumer is going to be confused if your business is associated with the NFL, with Disney, with Harbiro.

If you’re using this licensed fabric in a licensed way.

And so what’s important is to make sure you set up your listings properly. So that you’re not having that kind of association.

So how are you going to set up that disclaimer?

Name your licensed fabric products properly

The first is how you’re going to name your products.

So you’re going to name your listing like,

Kids t-shirt made from Mickey Mouse Disney fabric

Make it clear in your product description that you are using  licensed fabric, not associated with the brand

And then in your listing itself, you are going to have a disclaimer that says something like,

This is not a licensed product. It is made from licensed Disney fabric. My business the artist’s J.D. LLC is not affiliated or associated with Disney.

So you are gonna have that in your listing.

The bottom line

So from a copyright standpoint, you can do whatever you want with the fabric.

From a trademark standpoint, we’re gonna make sure that there’s no association assumed on the part of consumers between you and the brand because you’re using this fabric.

So once you have those two covered. Once you are making sure that you are disclosing properly to consumers that there’s no association between you and the company who licensed their designs to appear on the fabric. Once you’ve got that covered, legally you’re safe.

But that doesn’t mean that these companies aren’t going to send an Etsy notice to take down your listings. That doesn’t mean that they’re not going to send you a cease and desist letter.

Just because they know that they’re probably not going to win if you fight them, doesn’t mean they’re not going to try to scare you off.

It doesn’t mean that they’re not going to try to scare you off by sending you the cease and desist letter, by sending you the DMCA, which isn’t a DMCA but sending Etsy the trademark infringement notice, to get your listings taken down.

How will I respond if they do get my listing taken down?

So I want you to consider how emotionally you would respond to that kind of thing happening.

Are you one of those people who gets charged up by something like that? Who gets charged up by standing up for what’s right, for what’s legal, for what’s fair?

Or are you the kind of person that this would send into a rage spiral, into a shame spiral, that you would be depressed, and you would have a hard time creating for a while?

If you’re the kind of person who is going to get energized by this fight–go for it. You know you’re in the legal right, you’re going to be able to stand up for yourself.

If you’re the kind of person that isn’t going to want to have to fight when this happens, then maybe it’s time to consider what other materials you can use so that you don’t have to deal with this. Once again they’re in the wrong by sending you that letter, by taking down your listing. But that doesn’t mean it’s not gonna happen.

And so I want you to consider from a business standpoint,

How is it that I’m gonna react to this happening? And how is that going to impact my business, my productivity, my creativity?

Next week we’re going to shift gears and start talking about building your team. And what you can and can’t ask independent contractors to do on behalf of your business. So make sure you don’t miss that episode.

Thanks so much for tuning in and I’ll talk to you soon.