Selling crafts involves much more than putting up a card table at the corner craft fair. Attorney Marlaine McVisk joins host Carol Duvall in studio to discuss clearance and copyright issues that one should take into consideration when selling crafts.
"You need to ensure that you won't get sued for violating someone else's copyright and you need to protect you own copyrighted works to have a successful business," McVisk says. McVisk says that crafters must take into consideration a legal area called intellectual property, of which copyrights are a part. Any creative idea that is made into a tangible form, such as a drawing or a sculpture, is something that the law will protect under a copyright.
McVisk says that copyright protection attaches to a creative tangible at the moment of creation. However, for maximum protection and the ability to recover attorney's fees in pursuing an infringer of that copyright, the copyright needs to be registered with the federal copyright office in Washington D.C. in a timely manner. Once the copyright is registered, the copyright owner obtains rights that he or she can enforce against others who may try to use the idea, concept, design, etc., registered under the copyright.
One important concept to keep in mind is that mere ownership of a craft, painting or other piece of artwork does not give the possessor the right to reproduce that work in whole or in part. However, the law provides that transfer of ownership of a copyrighted object gives the owner the right to use that object, sell it or even destroy it. For example, this means that one might attach or incorporate an actual copyrighted object, such as an original drawing or card, to a collage piece, but that the owner of the drawing may not reproduce the collage for sale. The card also may not be put into the collage without permission from the owner of the copyright for the drawing or card.
However, the fact that another artist may have made an artwork such as a drawing of a pear, another artist may also make an artwork showing a pear, just not one that is the same or substantially similar to the other artist's. "Theoretically, the copyright, your version of this unique idea, is a tangible form of an idea, not the subject matter or idea that's being protected," McVisk says.
Similarly, if a crafter makes a vase that he or she paints with an original design, that design may be copyrighted. However, if a crafter makes a vase on which he or she uses decoupage techniques to add images cut from magazines or art books, the design cannot be sold because it includes the work of other artists. If the decoupage vase is made simply to give to a relative or a friend, that only entails private use and does not violate copyright law. "It's only if you want to reproduce it, sell it and get commercial gain from it, or publish it in some other way that you have to worry about protecting yourself or being sued by someone for using their images," says McVisk.
A piece of art that is not protected by copyright law is in the public domain and may be recreated freely. A piece of art created before copyright law existed in 1886 may be recreated as well. Also, copyrights for an individual artist are currently protected for the life of the artist plus a number of years after the artist's death. The length of time a copyrighted work is protected depends on a number of other factors including when the work was created and whether the copyright was renewed. McVisk suggests checking with a lawyer when in doubt about whether the piece one wants to use in a commercial context is really in the public domain because the statute governing copyrights and the length of time they offer protection changes.
With all of the details in today's copyright laws, McVisk suggests that crafters should always seek individual advice for their legal questions. "I'm here as a lawyer, so one of the first things I want to say (is) that what we're doing is not attempting to give specific legal advice to anybody," she says. "Everyone, if they have copyright or other questions relating to their legal rights, should consult their own attorney because the facts for any individual's situation are always different. These are just general principals that I'm talking about to give an overview of the legal area of copyrights."
Here are some basic copyright terms McVisk says crafters should know:
Patents provide protection inventive ideas that are useful, such as mechanical devices, processes, compositions of matter, asexually reproduced plants and designs for articles of manufacture for up to 20 years.
Patents afford an owner certain exclusive rights in patented intellectual property, including, among other things, the right to make, use or sell the subject of the patent.
Trademarks offer long term protection for the exclusive use of words, symbols, sounds or colors that distinguish particular goods and services. Trademarks can be renewed continuously as long as they are actually being used in business.
Copyrights protect original creative works such as, but not limited to, books, plays, music, drawings, paintings, and sculptures. A copyright gives its owner the exclusive right to reproduce the work in question, to prepare derivative works, to distribute copies of the work, to perform or display the work publicly, among other rights. However, a copyright is subject to certain exceptions under the "Fair Use" doctrine.
The length of exclusive protection afforded to a copyrighted work depends partly on when the work was created, when it was published, the life of its author(s) and when it was registered. In addition the statutory length of time a copyright affords protection can be, and has been, changed by legislative action.
Trade secrets are various sorts of information which derive their value to an owner from the fact that they are not generally known. Trade Secrets are generally governed by state law, rather than federal law, as is the case with patents, trademarks and copyrights. These are a few examples of trade secrets: customer lists; recipes for making a product; or manufacturing processes.
Resources U.S. Patent & Trademark Office
For information about patent and trademark matters and a source for various forms for patent or trademark applications, etc.
U.S. Patent & Trademark Office
Arlington, VA
USA
Phone: 703-308-4357
Toll Free Phone: 800-786-9199
Website:
www.uspto.gov/
United States Copyright Office
For information about copyrights and a source for various forms for copyright applications, renewal forms or copyright sources.
United States Copyright Office
Library of Congress
101 Independence Ave. SE
Washington, DC 20559-6000
USA
Phone: 202-707-5000
Email:
copyinfo@loc.gov
URL:
www.loc.gov/copyright
Guests Marlaine McVisk
Attorney with Much Shelist and craft business expert
Phone: 312-346-3100
Fax: 312-621-1750
Email:
mmcvisk@muchlaw.com
URL:
www.muchlaw.com
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