Banner Sponsors
For artists and collectors sponsored by Intercal...your mohair supplier and Johnna's Mohair Store
Storytime BearsA few years back someone bought something I made and sold on ebay and after she paid for it she asked if she could include it in an auction she was going to list, I said sure that would be fine, I was new to ebay. Well in about a week she did just that , then about 2 days go by and I get an email from another artist telling me this woman had been removed from ebay for shill bidding and why would I want to attach my reputation to hers. Well I was so upset but my hands were tied I had to watch the auction finish out.
Needless to say I never let anyone I don't know super well use any of my work with theirs for all the world to see.
Jodi..I think the problem would be that if someone legitimately bought an item from you how could you stop them from selling it alongside something they'd made? If they asked me first I'd likely say no ..that I would not like it..but I don't see how I could stop them. I've seen my bears on ebay on the secondary market and it makes me squirm because of the way people present them...because my bears are made from longish fur they need 'styling' to go in front of a camera..and I have died a thousand deaths when I have seen some of the pictures people take of them...but I can't stop them from selling them ...
I wouldn't want to be mixed up with someone who doesn't play fair on eBay but I am not sure you can stop it happening after you'd sold to them.
Storytime BearsI know what you are saying about reselling the bear and the pictures are really bad, I have had the same thing happen, I don't mind that, I cringe but I don't mind that.
But is there a way to not have our name attached to someone that is not on the up and up, can you put in the description about not listing my name? Because when they do, it looks like it was a collaboration when it so wasn't. Can we protect out name as an artist?
I mean even ice cream bars or candy bars has it clearly on their boxes "Not for Re-sale" can't we too do the same on the issue of collaborations, I don't have a problem with the person reselling the item by itself, I just do not want to tie my name to an unknown reputation.
Newcastle, OntarioJodi,
I don't think there is anything you can do. Once a person has bought your bear or item etc, it belongs to them and they can sell it as they please. I think they can mention you name, and there's nothing you can do, as it's the truth. That's my take on things.
hugs,
Brenda
Wild Thyme OriginalsI know where you are coming from Jodi, but unfortunately.... there isn't a thing that one can do about that.
Ice cream bars (or granola bars, and whatnot) are marked "not for resale" because without proper ingredient and nutritional information they run afoul of government regulations.
Once you sell an item to someone (even if it is considered a work of art) they can do pretty much whatever they please with it. That means they can resell it, trade it, deface it, rip it apart, or use it as a super expensive cat toy! And yes, they could include it along side another item of their choosing in an auction.
I had a lovely lady resell of of my minis in an auction with a gorgeous Himsted doll not too terribly long ago. She took lovely photos, and explained that she had displayed my bear with her doll for quite some time and didn't feel right about splitting up the happy couple. I actually fell kinda GOOD about that, to tell you the truth! I thought it was sweet! She also was kind enough to let me know that she was going to do it before she listed them, which was very kind. 
I think that almost all of us feel a little twinge of sadness when we see that someone else is selling off a bear that we have made.... even if the reason is completely understandable.
I'd probably be pretty annoyed if someone bought one of my bears and then changed him in some way and sold him with my name attached to the auction, regardless of that persons reputation or lack there of. 
But could they do it... YES.
I think really the issue boils down to professionalism and ethics. I would hope that most bear makers wouldn't do such a thing without asking the permission of the artist. It's certainly not something required by law, but I think that it's the right thing to do. 
Kim Basta
I agree with Jenny (and Brenda -- edited to include Kim, too, who was replying as I was!) that you can't prevent resale no matter what form it takes. And frankly, I would strongly prefer that someone selling my work alongside their own identify my work as MINE. That, as opposed to the implication that it's their own original work. In that sense, I'd actually appreciate that my name is mentioned so that my work is identified as mine and not mistaken for someone else's.
Having said that, I'm not sure that a business name can be used to market a product that's being resold, and that might be the case especially if the business name in question is officially trademarked. There may be rights exclusive to the business owner in that case, in terms of how their branding is used. I don't know enough about this to comment intelligently but my sense is that someone who's not authorized to use trademarked branding is not allowed to use it in resale situations.
I'm not sure that applies in cases where the business name is NOT trademarked, however, which would be the case for most of us.
Clear as mud, eh? Something for someone more knowledgeable to comment upon!
I also agree with Jenny and Jodi about the cringe factor often involved when someone else photographs my work. It's not that it's styled to the nines by me prior to sale, or that it doesn't look like my photographs in real life. It's just that there's such a thing as a good photograph, and a not good photograph, and of course when one sells a product, or sees one's product in print, one really hopes for the GOOD photograph!!!
Wild Thyme OriginalsHoly Moley Shel!!!! I've said it before and I'll say it again... ya should have been a laywer! You really have the mind set! Not the ambulence chasing, praying on people's weaknesses thing... :crackup: 
but the "Ah, yes, but there could possibly be an exception" thing!!!! You are awesome lady! I don't know enough about copyright/trademark to give a truly definitive answer on that potential exception either... kudos to you for thinking of it though! You are one smart cookie!
Kim Basta
Waggle BearsSpeaking of trademarks and copyrights and all, a very confusing subject, do many of you have your name protected by these laws? I've also wondered if you need to file a Fictitious Business Name statement before you actually set up your business?
And did you apply for a resale number before you actually sold any bears or after your bears had been selling for a while?
Storytime BearsSection 102.
Subject Matter of Copyright: in general Section 302. Duration of copyright:
Works created on or after 1 Jan. 1978:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Some simple things to remember -
1. Everything is copyrighted at the moment of its creation by the author or visual artist... they do not need to register the work in order to "own" its copyright.
2. Protect your own material - post notices (like the ones you will see on pages from which you found this page) on your Web site - if you REALLY want legal protection and think you might need it - register your works with the copyright office, but normally this is NOT a legal requirement - just makes it easier if you want to sue somebody for infringing your copyright.
3. If you find out someone is infringing (using without permission) - you must let them KNOW that they are using your material.
- you can either give them permission (it is also best to require that a person you allow use - post a notice that you are the owner either marking the item "Copyright, your name, year' - or a comment such as "This copyrighted material used with the kind permission of - your name,"
- or ask them to cease using your images.
If you let people use your images without your consent - and take no action ...they can become "common use" by your de facto failure to require that they have acknowledged your copyright.
4. Understand what is and is not copyright material before you use it. If a website offers free graphics and marks them as "not copyrighted" - great! Have fun with them - but if an image is clearly marked as copyright material - don't use it unless you get permission!
That's great information, Jodi, but I don't think it's copyright we're discussing here, but trademark infringement. A person couldn't copy another's work or represent work as their own original work if it's based on the work of another; that's copyright. We're talking about resale of work that's being CREDITED to the original artist... and then I brought up the point that while I don't think resale can be halted, I do think there might (might!) be some restrictions on the use of trademarks or branding in the resale of product.
I'm just not sure how that might work.
Perhaps a better thing to Google might be trademark infringement? Or branding issues? Don't know. Anybody with a law connection out there???
Posts: 1,836I was originally leaning towards the "what is sold is free reign" idea, but then I started to think about it a little more and look into it a little bit more. Just because something is "sold" doesn't mean it's lost to you rights wise and free game for anyone else to use artistically as they see fit. Yes, people can re-sell what they want via auctions, shops, garage sales and swaps...BUT if someone is selling where it's being represented as a collaboration of artwork or their own then that's a different story (I think). There are laws and such to protect writings, music, and art in this aspect.
I can make a mixed media collage piece using old sheet music from the Beatles decoupaged onto a park bench...musical notes out there on the page for all to see and probably not violate any laws at all. BUT if I take a line of those same musical notes and place them in their original musical content, mix in a little of my own "musical art" and play it on the radio as my own I've just violated numerous copyright laws. Music sampling is popular and those artists who don't get proper permissions first wind up with enormous legal fees.
If I sold a piece and 4 days, 4 weeks, 4 months, or 4 years later it showed up in a listing with a piece that was made to look as if they were a pair, then that's a violation unless permission is granted first. It's not just about being nice and asking first, it is a legal thing actually if sold in that context. If someone's selling off their collection and listing " huge Lot of bears" and your bear is mixed in with a few others...that's a simple resell. Listing my bear with their own creation without permission first is most definitely something else. Aleta for example having open communication with her doll artist friend and then creating a bear that went with is legally what is supposed to be done. It's not just about being friendly and nice. Who wants to be misrepresented in the end? "Works that are derived from a previous work of another violate the rights of the owner of the previous work. Therefore, if you are creating an image that is based on the work of someone else, you need to obtain permission from the original creator prior to your use of your work. "
Osh Kosh Begosh can't make teddy bear overalls for toddlers and sell with a free Gund bear clipped on unless they first go to Gund. They're using another's work to promote their own. It doesn't matter if they paid for all of the Gund bears legally and have a receipt....it's not theirs to resell with their own product.
I'm not sure if that makes any sense or if it's even legal...but it makes sense to me and from what I've read online it seems like there is some legal standing as well. Makes me wish I had a lawyer in the family, I'd pick their brain right now 
....I find it all very interesting.
:hug:
~Chrissi
fribbles, ltd...I run a law firm at my other job, but we do criminal matters only, so I can't help out here. However, if you have your name/business name trademarked, the person cannot reference that in their auctions---look at FITA's work.
As for the collaboration effort, I have just purchased several ragdolls to go along with some fribbles bears---I picked them up specifically FOR a collaboration, I intend upon giving full credit to the artist I bought the ragdollies from---it's just that I really love the look of hers and I wanted the dolls for the idea that I had in my mind, and didn't want to go through the trial and error process...plus, am not sure I even want to make ragdolls.
In my collaborations with other artists [and there have been a few], we usually make things separate and then put them together later. When I have the other item with me, that frees up my creativity to brainstorm what I think would be best with the other item, rather than just putting different pieces together. They seem more...seamless.
Looking at it from my own viewpoint, I would be thrilled if another artist decided to purchase my work to feature in their creation...as long as I liked their work and they gave me credit for my ted.
Amelia
You probably couldn't buy a Donald Duck (say) and sell it along side your own piece as a single collectable unit...ie you couldn't use that Disney piece as an integral part of what would constitute one auction item without their permission as to do so would imply a collaboration between you and Disney...
Which is why I don't tend to use accessories that I haven't made or had made especially because I am never sure about this aspect. I always state that it's not made by me...or is vintage or whatever...I do think it's a grey area to use bought accessories/clothes/stuff with Ooak bears because surely everything has to be individually made.
Apple Dumpling DesignsI don't have anything meaningful to add...other than I find it interesting that anyone would actually think it was OK to do this WITHOUT permission and/or WITHOUT acknowledging the other artists work but then I guess I must tend to be a naive and trusting. Honestly, I find myself sitting here sometimes with my mouth hanging open...(it's not pretty). 
Storytime BearsI guess as in my case the person had been caught shill bidding and I just did not want that connection, I didn't know she had been, so I was knocked for a loop when I found out she had, she seemed like a really nice person, I guess I just want to protect my good name and would rather no one promote my work but me.
I guess I am unclear on the difference of trademark and copyright
according to the above info I posted :
3. If you find out someone is infringing (using without permission) - you must let them KNOW that they are using your material.
- you can either give them permission (it is also best to require that a person you allow use - post a notice that you are the owner either marking the item "Copyright, your name, year' - or a comment such as "This copyrighted material used with the kind permission of - your name,"
I think as artists, we have to be able to control our creative product in some way, just not sure what is the way to do that..
I think as artists, we have to be able to control our creative product in some way, just not sure what is the way to do that..
Yes, that's it exactly. I'm sure there are protections in the law for this sort of thing. As in the case of copyright, with which we're all at least a little familiar. I'm just not sure what those protections are. We need a lawyer on the board who specializes in intellectual property law!
Some info I just Googled on the subject of copyright vs. trademark vs. patent, for your information and use:
COPYRIGHT vs. TRADEMARK vs. PATENT
Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
What Is a Copyright?
Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
What Is a Trademark or Servicemark?
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks".
What Is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
(Excerpted from General Information Concerning Patents, U.S. Patent and Trademark Office website)
Some additional differences between a copyright and a trademark are as follows:
1. The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers: a) works of art (2 or 3 dimensional), b) photos, pictures, graphic designs, drawings and other forms of images; c) songs, music and sound recordings of all kinds; d) books, manuscripts, publications and other written works; and e) plays, movies, shows, and other performance arts.
2. The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services.
3. There may be occasions when both copyright and trademark protection are desired with respect to the same business endeavor. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement's text and graphics, as published in a particular vehicle, will be covered by copyright - but this will not protect the slogan as such. The slogan may be protected by trademark law, but this will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration.
4. If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name.
5. Whether an image should be protected by trademark or copyright law depends on whether its use is intended to identify the source of goods or services. If an image is used temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo.
6. The registration prcesses of copyright and trademark are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the Trademark Office includes a substantive review of potentially conflicting marks which are found to be confusingly similar. While copyright registration is primarily an administrative process, trademark registration is very much an adversarial process.
7. Copyright law provides for compulsory licensing and royalty payments - there is no analogous concept in trademark law. Plus, the tests and definition of infringement are considerably different under copyright law and trademark law.
A little more on the subject, from: http://www.legalzoom.com/law_library/tr … s_cpy.html
Choosing Between Trademark and Copyright Protection
The choice between Trademark and Copyright is not always a clear one. Trademark and Copyright registration are both means of protecting the intangible rights of intellectual property. There are, however, important differences between Trademark and Copyright protection.
Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works.
Copyright does not cover intellectual property such as titles, names, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring. This type of intangible property is often more appropriately protected by a Trademark. Think of some of the most memorable advertising slogans you have heard. Chances are these slogans are protected by a Trademark of some sort. They are, however, unlikely to qualify for Copyright protection.
Trademark protection, on the other hand, is designed to protect a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or services of one person or company from those of others.
The distinction between Trademark and Copyright protection is not always clear. Think, for example, of a logo with which you are familiar. The amount of original authorship that goes into a logo can vary greatly. Most of the highly recognizable logos out there are extremely simple objects such as a "swoosh." However, one can imagine a much more ornate logo that includes a great deal of original authorship. Such a logo could possibly qualify for both Trademark and Copyright protection.
If you are looking to protect the name of your company, your newly designed logo or your best catchphrase yet, Trademark protection is likely the route for you. If you are looking to protect your latest gallery worthy painting, the next great American novel or even a brilliantly choreographed dance sequence, Copyright is probably the best route for you.
Whether you choose to apply for Trademark or Copyright protection, LegalZoom has the expertise necessary to make the process quick and eas
Wild Thyme OriginalsLawyer in the family... hmmm.... my hubs is one, and I am too! :crackup: and I'm quite sure that neither of us really has any clue! This is definitely one of those tricky/sticky areas of the law where you NEED a legal specialist... I took Entertainment Law when I was in law school and we touched on a few areas that we are discussing here, but certainly not in enough depth to give any valid opinion here!
You know what, and this touches on your question a bit Marlys, when I started selling, I did debate in my mind whether or not to file a trademark for my business name, and after a lot of thought I decide against it. My reasoning.... I really don't have the time, energy or inclination to sue anybody. A law suit is like a full time job, but you don't get paid for it... you have to pay your lawyer! 
AND, you have to be able to COLLECT damages from the defendent to make it worth while at all. It's just not a place that I would go, even if I had an absolute right to do so. I'd never discourage someone from filing a lawsuit that was absolutely waranted, but it's just not something that I'd personally do. I just like to make my bears, and if they are selling... great... if they aren't that's fine too. I'd like to believe that most people treat others as they'd like to be treated, and make kind, ethical, and professional decisions concerning their business and the business of others... but I truly KNOW that is not always the case. I guess for me personally, if bears ever became something that I'd have to start filing lawsuits about... I'd probably would no longer want to make bears anymore.
I'd suggest that if anyone does have serious questions about legally protecting their work, business name, branding, etc... they should seek the advice of a good IP lawyer.
Kim Basta
... and in California, a good IP lawyer costs roughly $300 - $500 per hour, just FYI... and will want a retainer up front.
I'm with Kim on every point she made. I've worked for lawyers, have many friends who are lawyers, and have a sister who's a lawyer. I briefly dated a lawyer. (Don't ask.) Plus I've been divorced and had dealings with three separate lawyers at that time. Even though it was a friendly split and our settlement agreement never went before a judge for argument (we used a mediator, plus separate counsel to advise on our individual rights), all that lawyer-ly time and cash outlay felt something like shooting straight to hell on a rocket.
Sooooo much stress is involved, your head hurts just thinking of all the possibilities and items to cover. And inevitably, someone forgets something really important. Don't get me started! Hindsight is always 20/20.
The likelihood of losing a legal point really requires, as Kim said, some serious thought in answer to the very basic question, "Is it worth the fight?" And by "worth it" I mean not just financially -- are you guaranteed a win? and even if so... can you collect attorney fees from the opposing side as reimbursement, or will your win be purely cognitive but your financial losses, enormous? -- but also, spiritually and emotionally.
My personal decision, like Kim, is that there's not enough reason in my bear business to pursue legal action on any point that's presented itself to date, including trademark registration. Hopefully that decision won't bite me in the butt someday; it may, I acknowledge. Fingers crossed! At this time, however, it's just not worth the expense, time, and emotional cost.
Wild Thyme OriginalsMy personal decision, like Kim's, is that there's not enough reason in my bear business to pursue legal action on any point including trademark registration. Hopefully that won't bite me in the butt someday; it may, I acknowlege. Fingers crossed!
Yup... I've got mine crossed too!
Kim Basta
Storytime BearsShelli and Kim, thanks for all the great info, I guess what I need to do, is just list in my auction somewhere,
"that I would rather not have my work used in a collaboration, but resell is allowed". And if someone does it anyway I guess I would need to weigh the cost of time and money against the damage of my name. I think anyone that has any integerity would respect that.
Posts: 1,836If presented with something like this I don't at all think you have to jump right in with fists blazing and lawsuit lingo. It might be a total oversight on the other persons part. They may be open to your concerns and respect them. But if in the similar situation that Jodi explains above I would expect that if my piece was used in a sale as a set, pair, or collaboration that I would have granted permission first. If the pooh hit the fan after I already gave my permission...well then that's just a life lesson in the end and I'd base future dealings on it.
But you can most definitely prevent future sales no matter the form. I'd hate to think that someone here could start cut and pasting our pics, painting them (even on bears), putting them on tshirts, magnets, or calendars and selling them. I agree that legal issues are costly, time consuming and a hassle but I also think that if you're running a business you need to be aware and protect what is yours, even attempt to protect via less costly channels first. Why should Disney be respected and not Potbelly, CatherWoods, or Wild Thyme??
I have a bear listed right now "shabee". I used the words "shabby chic" in her listing and I was hit with a VeRO warning before I listed. I didn't even know what that was!! 
I googled this and it turns out that eBay had a big ta-do with "shabby chic" in the past. Shabby chic is a definition of decorating style...BUT it was also trademarked, registered, copyrighted and all the a like by one company who will cancel your auction in a heartbeat if you simply use the words "shabby chic". :doh: I went back and re-phrased stuff and chopped it up a bit so as not to have my own auction canceled.
:hug:
~Chrissi
Past Time BearsI'd hate to think that someone here could start cut and pasting our pics, painting them (even on bears), putting them on tshirts, magnets, or calendars and selling them.
:hug:
~Chrissi
I did have that happen to me - not by someone HERE, but by a publishing company that sells transfers/t-shirts online. I accidentally discovered that two of my bears had been "confiscated" and used on a t-shirt. They had made a couple of minor changes, but there was no doubt that they were my bears. A very astute and saavy attorney just contacted the company with proof that the pics were of my bears, and the company took them off their website. They said that particular design wasn't selling very well anyway. It DOES happen.
Wild Thyme OriginalsOh yes... I remember that Sue Ann.... it's fabulous when one CAN get things resolved with a "Cease & Desist" letter!
Gosh Chrissi... I didn't know that "shabby chic" was trademarked either! :doh: I totally agree with you that small businesses, even REALLY small business (like mine) are entitled and deserving of all the legal protections that big companies are. And, when there is a simple, easy, frugal solution to the problem that the "other side" respects ( or has no other choice BUT to respect) all is well. I certainly don't want anyone to think that just because I am small, that they can do what they wish with my work product, pictures, etc.... I'd be more than willing to stick up for myself if I saw someone else trying to profit from my hard work. Total agreement with you there Chrissi! Sometimes there are less expensive or free avenues you can take and if the person/company has just a bit of integrity, they will realize the error of their ways.... or in a situation like you found yourself in.... where you were completely unaware that you had committed any wrongdoing.... that person can correct the problem.
Kim Basta
