This article is not legal advice. It is for informational purposes only. If you have any questions about your situation, please ask your attorney.
Artisans and artists don’t live in a creative vacuum: they are influenced and inspired by the societies and cultures around them. They are often fans of others’ work, too, and want to create new things inspired by the fictional worlds, characters, brands, inspiring quotes, and sports that they support and enjoy. Their customers are fans, too, who appreciate purchasing these unique products.
However, there is a slippery slope between inspiration and infringement. Most beloved cultural icons are also highly-protected intellectual property. Once an artisan begins trying to profit off the names, copyrights, trademarks, reputations, images, logos, sounds, or other aspects of another’s protected work, they could be “infringing” on another’s intellectual property. Some types of use, such as fan art (also called derivative art) are subject to much legal nuance and affected by intangible factors such as intent, “how much” art is appropriated, etc.
Intellectual property infringement comes with legal liability, and could harm the artisan and potentially Artisans Cooperative, too.
Just as we want our own intellectual property to be respected, other original creators deserve to give permission, receive credit, and earn licenses and royalties for the use of their original creations. That’s why most of the world agreed to ratify the World Intellectual Property Organization (WIPO) treaties on copyright protection online in 1996. In the US and for any websites operated by and in the US, this was implemented by the Digital Millennium Copyright Act (DMCA).
Two often-mentioned concepts in the US are the right to free speech and the “fair use doctrine.” Although many artisans believe their use is legal because it is fair use, the legal definition of “fair use” is nuanced and complex. Generally both of these concepts are negated once the item is put up for sale or advertised.
If you’re unsure about your specific case, we recommend contacting your attorney and doing your own research about your particular case. Artisans Cooperative cannot provide legal advice.
If you’d like to learn more, we recommend you read the article by Owen, Wickersham & Erickson, P.C. and the other resources at the bottom of this article. Next we’ll discuss how Artisans Cooperative protects intellectual property rights on our marketplace.
We recommend that you do not post derivative fan art, items using trademarks, copyrighted quotes, or similar listings for sale on our marketplace – unless you specifically received a commercial license or permission to use them.
If the intellectual property rights owner files a validated DMCA Takedown Request, this will count against your shop as a handmade enforcement violation and you may be liable for copyright infringement to the rights holder.
In addition to our Handmade Policy, which excludes items with intellectual property violations as prohibited (1.6.4, v6), the DMCA sets out a universal and legally-protected process for protecting copyright, and Artisans Cooperative is a registered DMCA agent.
It is our responsibility and duty to provide a DMCA Takedown form on our website, and respond to DMCA complaints expeditiously. Our DMCA takedown form is combined with our other policy violation forms and is available on every product page under the description with the link “Report this item” and in the footer of every page of our website.
Go to Report Compliance Issues – DMCA Takedown page >>>
The DMCA does not require websites to self-police all potential copyright violations; instead it requires the copyright holder (or their authorized agent) to submit a specific form DMCA “takedown” request, asserting their intellectual property rights.
When there is a report, it is the duty of the DMCA agent to first, unpublish the allegedly violating item, and second, investigate the issue, allowing the alleged offender to respond and ultimately deciding whether to take it down or not.
If an artisan lists or offers for sale an item that violates intellectual property, they are at risk of being sued by the copyright holder. If the Coop does not take down a valid protected work after a DMCA violation report, then it is also at risk of being sued by the copyright holder.
Artisans Cooperative was created as space for creative and original handmade work, and intellectual property violations have no place in our creative marketplace. We take all intellectual property infringement allegations seriously and aim to protect the creators of original work, whoever they may be.
Can I sell handmade products using fabric showing intellectual property that I purchased from the store?
Most likely no, unless you have purchased a commercial license to resell the fabric. Most fabric featuring intellectual property – such as sports team logos or cartoon characters – is intended for sale for personal use, not profit. Use of their trademarked names in your listing without permission is also likely an intellectual property violation.
For the perspective from a brand who owns significant intellectual property, here’s a hot take from an Etsy forum when a sewist asked a major brand for permission to use a licensed fabric that the customer had purchased.
Can I sell a handmade item I made using a purchased pattern?
It most likely depends on the license you purchased with the pattern. If you work in this area at all, we recommend you read the article by the Craft Industry Alliance included in Resources at the bottom of this article.
Can I sell a handmade item featuring a famous quote?
If the quote is in the public domain, then yes. Otherwise, most likely not without permission. In addition to copyright protection, quotes that use the author’s name also may infringe on their publicity rights, trademark, or servicemark.
Resources and Additional Reading
Fan Art and Fair Use: One Truth and Five Myths
Etsy Seller Handbook, March 2022
For Personal Use Only: Restrictive Clauses in Craft Patterns
Craft Industry Alliance, June 2016
Is Fan Art Legal Fair Use? What About Mash-ups? – Copyright Myths and Best Practices
Owen, Wickersham, & Erickson, P.C., February 2021
About Artisans Cooperative
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