Weeformers by Teresa Levy.
Photos courtesy of Teresa Levy
A few months ago, Levy, of Rhode Island, got a call from someone at Hasbro, the toy company that has produced the plastic action figures in the United States since the 1980s.
“They wanted to see my fan art,” Levy says.
Some people may have feared hearing the dreaded “copyright infringement,” but the Hasbro employee who called Levy didn’t demand that she stop selling her handmade dolls. Instead, they were calling to discuss a full-time sample maker job Levy had applied for — and eventually got — by highlighting her products.
Levy’s experience shows how blurry the lines are when it comes to intellectual property infringement in the craft world. For all the companies filing takedown orders with Etsy — in the year 2013 alone, 20th Century Fox issued cease-and-desist letters to makers selling hand-knit Jayne Hats, based on the orange, yellow and red beanie worn by a character in the short-lived TV series Firefly, after the company inked a deal to sell a mass-produced version through online retailer ThinkGeek — there are companies that seem to encourage makers’ fan-inspired products, or at least decide to not butt heads with passionate fans.
Doctor Who fabrics available from Fabric.Com.
Fair use for fan art
Some fan art may fall under what is called fair use, which allows copyrighted material to be used for teaching, comment, criticism or parody, and also if the work is “transformative,” creating a new meaning or message. However, it is very often difficult to determine whether or not fair use applies.
Rebecca Tushnet, a professor at Georgetown Law with expertise in copyright, intellectual property and trademark law, says determining fair use is especially tricky when it involves the products of small-scale makers, as these business owners generally don’t have the resources to fight takedown orders in court, which would provide some precedent for similar cases.
“I would say if you litigated it, a truly artistic work — however you define it — shouldn’t face any trademark restrictions,” Tushnet says. “Very few people have the ability to fight this out all the way.”
Tushnet notes that though copyright infringement can be an issue if someone is making money while making a reference to something in pop culture, products that are sold commercially can still be considered under the fair use doctrine.
That said, Tushnet adds that courts interpret fair use in different ways.
“If you were just selling a print, it would be OK,” she says. “If you then put that on a tote bag, at least some courts would say, ‘Hey, that’s different.’ ”
Then there is what Tushnet calls “tolerated use,” which is when companies decide to not go after small businesses that reference characters or other details in their movies, TV shows or books.
“Many big franchises have started to notice that getting your fans mad at you isn’t going to go over well,” Tushnet says.
Weeformers by Teresa Levy.
Photos courtesy of Teresa Levy
Advice for makers
If you are going to reference a fandom in your products, it’s important to stay away from language that implies it is connected to, or an official product of, the company who holds the rights to that intellectual property, Tushnet says.
“The question for trademark infringement is, ‘Is it officially misleading?’” Tushnet says. “Honesty is always helpful. Don’t do anything to make it look like you’re official.”
“If Disney is selling fabric, you can make stuff with it,” Tushnet explains.
Spoonflower, a website that allows people to sell self-designed fabric — and where many fandom-inspired designs can be found, using the Dr. Who Tardis to, yes, the Jayne Hat from Firefly — requires users as part of its Terms of Service to confirm that they own the rights to, or have permission to use, the designs that they upload.
Etsy also has an intellectual property policy.
Still, Spoonflower, like Etsy, has been on the receiving end of Digital Millennium Copyright Act takedown requests. The company complies with the requests immediately, and also proactively removes designs that use intellectual property that they’ve been asked to remove in the past, says Spoonflower spokeswoman Jenny Schnaak.
“It’s difficult to review and independently verify the ownership and rights of the millions of designs uploaded to Spoonflower — some are uploaded by the copyright holders themselves, and others are legally licensed,” Schnaak wrote in an email. “So we rely on our community to represent themselves and their designs honestly and to ensure and affirm before uploading they have the rights to reproduce those designs.”
“However, it’s possible that some designs that might violate our terms of service are uploaded, either intentionally or unintentionally,” Schnaak added. “There are a lot of myths surrounding intellectual property, like ‘if it only uses 10 percent of a copyrighted work, it’s fine’ or ‘this is fair to use because I consider it a parody, or it’s for my own use’ and, on the whole, our community is honest, creative and uploads designs that have come straight from their own brains and pens. Fair use is something only a court decides, not Spoonflower, so we’re unable to make that judgment about any single design.”
Lisa is a freelance journalist in the New York Metro area who specializes in home design, real estate and healthcare. When she’s not writing, or knitting shawls and sweaters, Lisa runs Indie Untangled (www.indieuntangled.com), a marketplace and blog that promotes the work of yarn dyers, pattern designers and crafters of knitting-related accessories.
Interesting post. I’ve often wondered about tutorials which are based around film characters – such a a tutorial to knit a minion hat. I see a lot of them circulating on social media but have never dared write one myself as I always assumed it would be breaching copyright.