Copyrights?

[jttheclockman]

No this is not a question so much on legality but a personal question. First I know from my experience in the scrollsawing world there are copyright rules and laws when it comes to making and selling items. Sometimes it is so grey though it makes your mind spin. My question is simple but has multiple parts to it so read carefully. For those people and we will keep this to pens, that buy questionable blanks such as historical woods, team sport label casted blanks, military casted blanks and so forth and resell your finished product have you ever been approached and questioned about legality of your sales?? If so how do you handle it. Now a third party made the blank and maybe or maybe not had permission to do these type blanks and maybe even gave you an id card if even that is legal. Do you pass it on to new pen owner or do you inform the buyer in way about possible legal notions attached to pen??

Another part to the question is if you bought a pen with this legal or illegal stigma attached to it., have you ever been approached and how did you handle it.??

The reason for this question is I see so often people selling all kinds of blanks these days and not sure if they even think about this stuff or just want to make $$$. We are a penturning site and it should be discussed I believe to what is right and what is wrong before being in that position. Or is all this just smoke in the air and do whatever you want. Being the guy on the buying end of a single pen is probably never going to be a problem but the sellers and makers maybe a different story. Lets discuss.

 

[crokett]

I'm not sure they think about it. I handle it by not creating logo'd items that could get me into copyright trouble. I can (and have) cast a blank and created an item in team colors but I refused to put decals on them. I had someone last year want a pen with the Duke colors and logo. I gave them a blue/white pen and let them put a logo on it if they wished.

 

[bsshog40]

I think most of arts and craft stuff falls under the Fair Use of copywrites. There is also the 4 factors of fair use.
The four factors of Fair Use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

Courts typically focus on whether the use is "transformative." That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.

2. The nature of the copyrighted work

Using material from primarily factual works is more likely to be fair than using purely fictional works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the "heart" of the work.

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Uses that harm the copyright owner's ability to profit from his or her original work by serving as a replacement for demand for that work are less likely to be fair uses.

 

[Kenny Durrant]

First off my fat fingers put John's heading up and I can't remove it!!
As far as his question goes: I think some of the company's out there just want all the money they can get, greed. I understand they should get paid for what's theirs but that's another story. My son has worked for several Universities and one pro baseball team. They've all said I can do whatever I want with any of their logos except sell them. I've had a few others, one on the IAP, check with a university and was told the same thing. Knowing that I don't sell them unless someone wants a few and I ask for the cost of the kits. That's probably not legit but I can't afford to give as much stuff away as people want. If someone else were to try to sell a pen from one of my blanks and get caught I'm not sure what would happen. I do try to stay within the boundaries.

 

[its_virgil]

My opinion, take it or not. Using copyrighted material without permission or without a license is stealing other's intellectual property. To be safe, seek the advise of a real attorney who deals with copyrights, not an "internet self appointed attorney". Yes, it costs money, but not as much as possibly getting caught. Yes, copyrighted material is used and used a lot. I hear this, "They are not interested in a small pen maker like me." Wrong!
Do a good turn daily!
Don

 

[monophoto]

This is not a copyright issue! This is a matter of trademark. If a business or organization has gone to the trouble of registering a trademark for a logo or symbol, and if they see that you are using that logo or symbol without permission, they can ask that you cease and desist. And if you don't, they can sue for damages. And if they win, you pay.

Copyright comes in when you copy something that someone else has done. In the world of turning, that would be where you copy someone else's design for an object. I'm not a lawyer, but I suspect that it would be harder to prove making a turning that has the same shape as a turning made by someone else is a copyright violation even through the fundamental rule is that the original creator owns the design.

Fundamentally both copyright and trademark are issues that relate to intellectual property, and a violation of either is a form of theft. But trademark violations may be more treacherous because an entity that takes the time to register a trademark does so because they intend to use that logo or symbol to make money, and iunauthorized use by others represents money they aren't making. On the other hand, copyright violations are sometimes more a matter of principle, so there is less incentive to pursue legal remedy.

 

[jcm71]

Here's a link explaining copyright and trademark first sale doctrine. https://www.bonalaw.com/insights/legal-resources/first-sale-doctrine-in-trademark-and-copyright-law

 

[jcm71]

And there is this. https://smallbusiness.chron.com/legally-sell-trademark-items-61321.html

 

[mark james]

This is not a copyright issue! This is a matter of trademark. If a business or organization has gone to the trouble of registering a trademark for a logo or symbol, and if they see that you are using that logo or symbol without permission, they can ask that you cease and desist. And if you don't, they can sue for damages. And if they win, you pay.

Copyright comes in when you copy something that someone else has done. In the world of turning, that would be where you copy someone else's design for an object. I'm not a lawyer, but I suspect that it would be harder to prove making a turning that has the same shape as a turning made by someone else is a copyright violation even through the fundamental rule is that the original creator owns the design.

Fundamentally both copyright and trademark are issues that relate to intellectual property, and a violation of either is a form of theft. But trademark violations may be more treacherous because an entity that takes the time to register a trademark does so because they intend to use that logo or symbol to make money, and iunauthorized use by others represents money they aren't making. On the other hand, copyright violations are sometimes more a matter of principle, so there is less incentive to pursue legal remedy.

You are spot on Louie. But most will not understand the issues. Deviantart is a perfect example of folks having choice, but here they will want to extend their choice to exclude others. Not my cup of tea.

 

[TellicoTurning]

I can't answer John's question, but can relate to a couple of incidents from my shop.... I used a green and yellow blank from Spectraply to make a bottle stopper... I forgot the pattern Spectraply assigned to the blank, so when I listed it on ETSY, I mentioned that is turned in John Deere colors... I did not indicate any other connection to John Deere.... I got a cease and desist letter from John Deere's lawyer and ETSY removed my listing....
I also had a set of wine glasses that had little round balls between the stem and the glass it self.... the little balls were in various colors and were similar to some I've seen by Fiesta.... When I listed them I did not imply they were Fiesta glasses, but were suitable for a fiesta .... I got a cease and desist letter from Fiesta and ETSY removed my listing.
I relisted both items with no reference to either company, changed my description and never heard another word...

I'm thinking that some companies have parties that are hired specifically to look for infringements... infrinements are just not worth the effort.

 

[bsshog40]

I would imagine that when selling stuff thru online venues such as etsy, amazon, ebay, etc... will have algorithms setup to detect items that infringe on copyrighted items.

 

[edman2]

I sell Arkansas Razorback pens with the red running razorback. The University sells a "crafter's license" for 100.00 per year. They have limitations on it e.g. no clothing with the trademark logo. But basically I can make and sell a good number of pens before I even get close to the maximum allowed. So, I purchased the license and so far have sold every pen I've made with the hog on it. Just doing the honest thing as I understand it!

 

[jttheclockman]

Let me highlight the crux of the question again because I have not seen an answer. You are a third party seller. Someone makes the blanks and has all the necessary paper work and now sells their blanks. Many people now buy them and now make pens and they are selling the pens with the questioned logo or other questionable items. I see this with many vendors when they use guest blank makers. What does the seller of the pen do if approached?

 

[Crashmph]

First, I am NOT a lawyer and I do NOT even play one of TV.

As you can see in my profile pic, I own Stadium Pen Blanks. Right now I have over 170 stadiums in my collection. I do NOT have ANY logo'd, trademark, or intellectual property of any team or school on my website. Interestingly though, I get about 3-5 letters, emails, and phone calls for ceased and desist from MLB, NBA, NFL, <insert any college here>, etc... The calls are all where a customer of mine has purchased a 5" blank can two certificates and made two pens. Problem is they have made two JRs or Cigars or similar two tube pens. The use the stadium material for one half and make their own custom label with the copyright loge on the other half. This is fine as long as they do not want to sell it. But when it gets listed somewhere, I get a phone call since Hardin Penworks is the certifier on the certificates.

I have become pretty good friends with some of the lawyers for MLB and a certain few NCAA schools. They seem to call me the most with issues. The calls now are mostly just to verify that this pen or knife, or whatever was not made by me at Hardin Penworks.

After speaking with several of the lawyers that have called me... There are few ways of wording things to keep you legit and out of trouble even if you are NOT using logos and such. You CANNOT say "This is a Yankee Stadium pen" or "This is a New York Yankees pen". Same goes for blanks, you CANNOT say "This is a Yankee Stadium blank" or "This is a New York Yankees blank". What you CAN say is "This is a pen (blank) from a wooden seat slat from an original 1923 straight back wooden seat used in Yankee Stadium". This way, you are describing the item and its source but not attributing the item as something that was distributed by the Yankees organization. Wording items like this will help to limit how many items get removed from eBay, Etsy, Shopify, etc... Same goes for resin team colors or wood dyed colors. You CANNOT say "Yankee team colors", but you CAN say "resin (wood dye) inspired by colors from the New York Yankees".

Note: I do not put Stadium Pen Blanks on the COA on purpose. I am pretty sure you do not want customers to find out you paid $20 for a wooden seat blank from Yankee Stadium and you are selling a JR pen to them for $300.

Ultimately I cannot force people to not break the law with copyrights and trademarks. I just have this blurb at the bottom of EVERY product page that says we do not condone or promote the use of trademarked logos.

 

[jttheclockman]

Michael this is good info coming from a maker of such questionable blanks. Thanks.

 

[monophoto]

Let me highlight the crux of the question again because I have not seen an answer. You are a third party seller. Someone makes the blanks and has all the necessary paper work and now sells their blanks. Many people now buy them and now make pens and they are selling the pens with the questioned logo or other questionable items. I see this with many vendors when they use guest blank makers. What does the seller of the pen do if approached?

This is a key phrase - does this mean that the maker of the blank has a license from the owner of the trademark to make blanks using that trademark? And if so, does that license transfer to third-party purchasers of the blanks?

If both conditions are true, then I would think that there should not be an issue. That said, it is possible (more likely probable) that a random lawyer for the owner of the trademark won't be familiar with the details of all of the licenses issued by that trademark owner, and therefore might challenge the sale of a pen if he sees one at a craft show. However, that situation should be easily resolved once the relevant licenses are presented and reviewed.

The key point is that the owner of a trademark has exclusive right to use that trademark. So if someone uses it without approval/license, the trademark owner can defend his exclusive right by challenging that user. And if you do have a license from from the trademark owner to use that trademark on something that you make, you need to be prepared to defend that right if you are challenged.

 

[civilwartalk]

I don't think a trademark can be given on raw materials, and I doubt any rights can be inferred after an item is discarded or sold to a collector or other 3rd party. These are usually wood blanks, or plastic blanks we are talking about.

There may be some frustration among corporate types that some "bit" of something they sold is now being "artfully" reused in another product, but if you are following the guidelines Stadium Pen Blanks has set, then there really isn't any legitimate thing that anyone can do to stop the sale of a "blank".

It's no different than the watch parts blanks, you are reselling the parts from a trademarked product, possibly with a trademarked character in it, but you aren't selling it as a new product manufactured by the original manufactured company, rather an "artful re-use" of parts from a used product that was likely purchased from a 3rd party in a legal way.

In the case of blanks, it's a piece of a larger thing, a tree or stadium seat, or other item, that has been resold through third parties, and has now "artfully been included" in the craft product you are now selling.

I don't think there is, or ever will be, assuming we stay a free country in the United States, a "legal document" that "permits a seller" to sell a blank, or finished product that may contain "a material of public interest" assuming you aren't trying to sell something harmful that "can't be traded without a permit" like a plutonium blank or a dynomyte blank. Were talking about wood and plastic here, so I'm thinking this could never apply. That's just not how our commerce system is setup.

As to the authenticity of the item, that's a whole different ball of wax. I do a lot of research on blanks I buy, and when it comes down to it with wood, there are no ways to guarantee unless you cut the wood, or saw it being cut from the tree yourself. Then, when you "certify it", it's basically your word, because there is no way to certify via 3rd party, as you would with Coins, or Stamps, or other collectables.

I don't include the certificates given by 3rd parties for my products, I write my own certificates for each pen as needed, but I honestly don't think it matters in either case.

 

[civilwartalk]

I don't think a trademark can be given on raw materials

I should clarify this, because I know some products, let's say a piece of Corian that you cut into a blank, it's made from a trademarked material, and the formula for creating the product may have trademark restrictions, but that only means your can't "manufacture" your own version in the exact same manner as the original manufacturer. You are still re-using the product after purchasing from a 3rd party in a legal way, and including it artfully in a craft project, and not selling it "as new from the original manufacturer.

So to be clear, there can be a trademark on a manufactured product, but it really only applies to the manufacture of additional product using a trademarked process or formula.

That's my understanding, but I'm not a lawyer....

 

[PatrickR]

This topic comes up regularly, yet I often see blanks being sold that are clear trademark violations. Some people either just don't know/care or are willing to take the chance. If in doubt, don't do it or make some calls and get permission or purchase a license. Some small entities may see it as free advertising, others will see it as theft and defend it in court.
the use of historical wood etc does not apply here unless you start to incorporate trademarks in your work or advertising. Reproducing a trademarked logo in any way without permission is a violation and when you start to make money with it you run the risk of being made an example.
watch part pens - if you include a part that has a trademarked image you are in violation. They probably don't have an issue with it on a pen but if its okay there, then its ok on a (insert some offensive item).
raw material manufacture falls under patent law, the logos/names used for those materials under trademark.
Always err on the side of caution.

 

[MRDucks2]

"and the formula for creating the product may have trademark restrictions" - mixing up patents vs trademarks here. You patent a formula, you trademark a name or representation.

 

[civilwartalk]

"and the formula for creating the product may have trademark restrictions" - mixing up patents vs trademarks here. You patent a formula, you trademark a name or representation.

Right you are, my mistake.

 

[Joebobber]

Personally, I try to stay away from copyrighted images and trademarks just for that reason. I doubt a company will waste legal resources on a personal who makes or sells something they shouldn't, but I know for me, if someone took my property and used it without asking I'd be upset. There are so many other things you can do other than using something you shouldn't use.

 

[Penchant 4]

I'm thinking that some companies have parties that are hired specifically to look for infringements... infrinements are just not worth the effort.

You would be exactly correct. A copyright or trademark that is not enforced is useless.

 

[Penchant 4]

Good discussion.

Something to consider is the cost of fighting, even if you "win". It is likely that anyone with enough money to secure a copyright or trademark, has deeper pockets than I do. That becomes a lead pipe cinch if they can afford IP enforcers.

Should the holder, or the holder's agent decide to be nasty, can one afford it?

 

[MRDucks2]

A lot of good conversation but the answer John's question is NO. A person or entity who has obtained the right to sell or distribute trademarked items does not convey the right to resell those items to the buyer. When a buyer purchases a legally distributed trademarked item, they are purchasing it for personal use and not to resell unless they too have the authority or license from trademark owner to resell.

This was a big thing back when eBay first launched and also been watched on Etsy. If you go to Walmart and buy Mickey Mouse printed fabric to make a pillow you cannot promote that pillow for resale as a Mickey Mouse or a Disney pillow unless you have license from Disney to do so.

 

[civilwartalk]

Good discussion.

Something to consider is the cost of fighting, even if you "win". It is likely that anyone with enough money to secure a copyright or trademark, has deeper pockets than I do. That becomes a lead pipe cinch if they can afford IP enforcers.

Should the holder, or the holder's agent decide to be nasty, can one afford it?

You don't want to have to challenge a copyright holder, they can be spiteful, and play unfairly. I know from experience.

Even when the holders claim is complete nonsense, they can still make a claim against you and threaten to take you to court if you won't take their settlement. If you won the case in court, it would cost you a lot more in legal fees than just paying the settlement.

It's tough because 99% of copyright claims are settled out of court, Courts can't rule on the issues and set precedent one way or the other, and Congress has refused to make any changes to correct the problem with the laws being somewhat ambiguous.

When it comes right down to it, the copyright holder is always holding all the cards, and if they have a claim against you, even an illegitimate one, you end up in a no win situation.

 

[jttheclockman]

A lot of good conversation but the answer John's question is NO. A person or entity who has obtained the right to sell or distribute trademarked items does not convey the right to resell those items to the buyer. When a buyer purchases a legally distributed trademarked item, they are purchasing it for personal use and not to resell unless they too have the authority or license from trademark owner to resell.

This was a big thing back when eBay first launched and also been watched on Etsy. If you go to Walmart and buy Mickey Mouse printed fabric to make a pillow you cannot promote that pillow for resale as a Mickey Mouse or a Disney pillow unless you have license from Disney to do so.

finally someone answered the question. If this is true boy I know a few people that are violating this for sure. One of the reasons I asked because these were my thoughts when I confronted them. But guess just like the drivers on the road just go for it. Laws and rules do not apply to them. Stop signs, what is that?

 

[monophoto]

MR Ducks said: A person or entity who has obtained the right to sell or distribute trademarked items does not convey the right to resell those items to the buyer. When a buyer purchases a legally distributed trademarked item, they are purchasing it for personal use and not to resell unless they too have the authority or license from trademark owner to resell.

In general, I agree with Mike although I think that there are creative ways to craft license agreements that allow for thrird-party sales. However, that gets into complicated contract law and is probably far messier than most craft-level makers would want to deal with.

CivilWarTalk said: Even when the holders claim is complete nonsense, they can still make a claim against you and threaten to take you to court if you won't take their settlement. If you won the case in court, it would cost you a lot more in legal fees than just paying the settlement.

This is very true, and in fact is the main weapon used to defend against violations of both trademark and copyright.

A trademark violation is improper use of a word, phrase or symbol that uniquely identifies the manufacturer of a product. Putting the logo of a product or sports team on a pen is trademark violation unless you actually have a license to use that trademark. Copyright violation is copying the creative work of another person. So copying the design (shape, material, etc) of a pen made by someone else is a copyright violation.

But in both cases, there is another concern - when you put a logo on a pen, or when you duplicate someone else's design, the pen you make is merely a copy of something that someone else has previously made - it's no longer original. And one of the claims to fame of hand-crafted pens is that they are unique, one of a kind items. So in that sense, trademark and copyright violations are really inconsistent with the objective of most pen makers who want their products to stand out as unique.

 

[MRDucks2]

I have always wondered if approaching this in the sense of using a logo for personal use being acceptable: IF I charge $60 for GT Knurl based resin pens with a label cast in the blank and IF you are fan of Team X and want a Knurl GT style resin pen with a logo of Team and IF you provide the logo which I cast into a blank and a pen of and IF I sell that to you for the same $60 and never promote it or sell it as a Team X pen, have I violated a trademark?

 

[monophoto]

I have always wondered if approaching this in the sense of using a logo for personal use being acceptable: IF I charge $60 for GT Knurl based resin pens with a label cast in the blank and IF you are fan of Team X and want a Knurl GT style resin pen with a logo of Team and IF you provide the logo which I cast into a blank and a pen of and IF I sell that to you for the same $60 and never promote it or sell it as a Team X pen, have I violated a trademark?

Yes, but perhaps no problem.

Ultimately, the owner of a trademark has exclusive rights to use that trademark in its business. Legal actions for trademark violations generally come about when a third party uses that trademark to make money; in that case, the trademark owner seeks relief on the basis that the trademark entitles them to a piece of the action.

It is still a trademark violation if you make something for yourself and put a trademark on it without compensating the trademark owner. In this instance, the argument that the trademark owner would have is that their trademark was used (without permission), and they were not compensated for that use. The fact that the item you made was never sold is not important - the item was made and is in use, and the trademark owner is entitled to compensation.

Practically, however, this is unlikely to actually result in an enforcement action for the simple reason that the trademark owner is unlikely to ever know that it happened.

As argued here earlier, trademark and copyright are different legal concepts, but the principle that underlies both concepts is the same - the owner of a thing is entitled to compensation when that thing is used. An illustration of this is the notice that appears on videos that unauthorized copying is a violation of copyright even if there is no monetary transaction involved.

 

[penicillin]

I am not a lawyer. It is not easy for me to distinguish the posts and assertions in this thread that are written by people with legal expertise and experience, and those that are not. I do understand the difference between a trademark and a copyright.

My father was not a lawyer, but he taught me that if you are aware that others are infringing on your trademark and you don't enforce it, then you may lose the trademark. He told me that this is the reason why people receive "silly" cease and desist orders. Imagine a make-believe scenario where a kid builds a lemonade stand in front of their house and puts "Starbucks" on the sign, then receives a cease and desist letter from Starbucks. My father taught me that Starbucks may not have wanted to send the letter and everyone at Starbucks knows how silly it looks when a big corporation goes after a little kid, but they would have little choice about sending the letter once they learned about the trademark infringement. Starbucks would send the letter to avoid contributing to any risk of losing their trademark in the future. Again - Dad was not a lawyer, but that's what he taught me.

 

[jttheclockman]

Just so you and all others know this was a couple questions of had it happened to YOU? If so how did you handle it. I see many people selling penblanks these days and in fact I bet there are more pen blank makers than pen makers. With that said there are those that are trademarked and sold. Third party people buy them and make pens and sell now as their property. That was the crux of the questions. I believe people just do not care and continue until told to stop I guess.