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Covering auctions, collectibles and marketplace selling.

AuctionBytes Blog The AuctionBytes Blog has been giving a voice to online merchants since its launch in 2005. Named one of the world's top 30 blogs in 2008 by "Blogging Heroes." Weigh in with your thoughts on the joys and pitfalls of selling online.
Wed Feb 8 2017 14:20:54

Legal Pitfalls for Sellers of Handmade Goods

By: Ina Steiner
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Decoupage sounds like a fairly innocent method used in making crafts, but even there online sellers can get in trouble, as revealed in the Dear Rich Blog, which presents interesting legal questions from its readers.

A recent letter to "Dear Rich," highlights the pitfall into which artisan sellers may fall. The seller asks Rich if it's okay to buy sheet music online, print it out, and incorporate it into customizable gifts through decoupage (pasting paper onto an object in a collage).

As with many legal and intellectual property issues, the answer isn't simple. Rich points to several court decisions that show cases can go either way:

"For example, a company purchased notecards and affixed them to tiles and a court ruled that was permissible under the first sale doctrine (a legal principle that guarantees you the right "to sell or otherwise dispose" of copyrighted items)."

But he also said: 

"On the other hand ... A federal court in  California ruled that ripping out images from a book by Patrick Nagel and reselling them on tiles was not permitted."

Rich also provided a list of five things such sellers should consider when contemplating these issues.

Etsy, best known as a marketplace featuring artisan and handmade goods, offers a lot of information to sellers that can be useful no matter where you sell. Here's one example offering advice on intellectual property issues for online sellers from 2014.

Have you encountered legal challenges in your ecommerce business? Does the first right doctrine give you the right to upcycle without fear?



Comments (8) | Permalink
Readers Comments

Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
by: 27tcle This user has validated their user name.
       
Thu Feb 9 00:32:40 2017
Easy solution, artistically modify the images or other items used a little. Then it becomes ''art'' which is protected 100% under freedom of speech. The tactic isn't so much to actually sue and win so much as to make one go to court and go broke in the process. It isn't about copyright infringement, it is about the money and keeping a strict monopoly on it.  
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
This user has validated their user name. by: Ming the Merciless
       
Thu Feb 9 18:50:49 2017
Create an LLC. It will shield a seller's personal assets from lawsuits.
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
This user has validated their user name. by: iheartjacksparrow
       
Thu Feb 9 20:16:53 2017
I'd check with the owners of Tabberone who handle the eBay VERO and Copyright Forum on the EcommerceBytes Forums tab.
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
by: Windkissed This user has validated their user name.
       Web Site
Fri Feb 10 08:15:39 2017
I make handmade items but they are fully designed and handmade by myself.  I might occasionally download a free photo of something as a guide for color but otherwise they are all designed and handmade by myself.
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
by: desertdigger This user has validated their user name.
       
Fri Feb 10 09:10:27 2017
In the case of the seller using sheet music (or any other intellectual property), just make sure the rights have expired, Mozart and Beethoven come to mind.
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
by: JLynnPro This user has validated their user name.
       Web Site
Fri Feb 10 10:20:46 2017
I either alter the material slightly or obscure it, or what I have been doing in recent years is moving toward using my own original art and photos in my decoupage products.

After all, for branding purposes, we want to develop some consistency across all of our products, even if they are OOAK. They should carry a cohesive, signature character. What better way than using our own artwork?  

I realize not everyone is a painter or photographer, as well as a crafter, but this is what I do.

Very good article.  Thank you for sharing it!
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
by: Frank F This user has validated their user name.
       
Sat Feb 11 13:28:34 2017
Trademark infringement is rampant on ebay and etsy.. Just take a look at apparel, caps, jewelry, and other items for Disney characters, Star Wars, Superman, Batman, and ANY trademarked character, and look at brands like auto manufacturers, country and rock singers, TV shoes, sports leagues/teams, and on and on and on..

There is blatant trademark infringment going on within these marketplaces and its a cesspool of counterfeiting.. In some sub-categories of merchandise, the vast majority is counterfeit..

And someone above noted that they slightly modify an item, its still trademark infringement. For example if you sell a green and yellow shirt that says Green Bay (but not Packers), its still trademark infringing even if Packers is not on the item, as they are advertising it in the item title, item specifics, and detail description as Green Bay Packers, and that is infringement.. They are fooling the consumer to believe its an authentic licensed item.. They would never get any sales if they didn't do that, and its willful and blatant trademark infringement...

Its too bad that the brand owners do not go after this better, but its obvious that etsy and ebay are in cahoots with the criminals, as the brand owners have taken stuff down countless times, but its an endless game of 'whack a mole' as the criminals just relist it under a different id very same day...
Legal Pitfalls for Sellers of Handmade Goods   Legal Pitfalls for Sellers of Handmade Goods
This user has validated their user name. by: The End
       
Sun Feb 12 16:43:53 2017
Use such a tiny portion of it that's it's unrecognizable / unusable from its original intent.
You're Good to Go.
Repurposing is completely benine and totally acceptable.
Have No Fear.


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