Monday, April 19, 2010
After a recent discussion on copyrights and trademarks I thought I would do a post to try and help put the subject into an easy to understand format. Before this I must admit I had no idea what was involved. I did however find the subject very interesting and researched and read a lot of information.
I am in no way stating what I say here as fact or legally binding. This is my interpretation of the law from reading documents on the copyright and trademark laws. If you are in any doubt then please contact the company involved for clarification and access rights. They are human and will not bite you. If you have a question about something you make or are thinking of making then contact them. You never know it could do you some good.
There will be links at the end of this to various sites and laws for you to read if you wish and if you have anything to add then please do so in the comments.
Firstly copyright and trademark are two different laws. You cannot copyright a name, the ideas, logos, can be copyrighted, names, character, brand names and in some cases real names come under trademarking laws.
Both laws however are more or less the same and the same penalties apply.
If you see something with TM next to it it's trademarked, in the UK using the © means the same thing as TM. Copyrighted items will have ® next to them. If you see any brand name without these it does not mean they are not trademarked.
This applies to everything from quotes to out and out fakes. If it has a brand name or is used by a brand name then assume it's trademarked or copyrighted and it's a no go area. Unless you have permission of course.
Q. You want to sell an item with a Hello Kitty theme, are you allowed?
A. Yes and no!
Yes, if you have an authentic item of Hello Kitty you can use this on your handmade item and sell it as Hello Kitty as it has the authentic item included. You also have full rights to sell any authentic Hello Kitty item as long as it's used.
You cannot buy a job lot of brand new Hello Kitty items and resell them without permission from the copyright/trademark holders.
No, if you are making something from scratch to resemble Hello Kitty then you must not use the Hello Kitty name to sell it. You can by all means make the item and use it for your own personal use or put it on display (without charge) but as soon as you start to sell you are infringing trademark laws. Even giving it away in some cases can land you in trouble.
This is also known as fan art, whereby a fan makes or paints/draws or makes a film/photos of a copyrighted character and adds there own twist to it. This is fine but you still cannot use the brand name or sell it.
Q What about the fair use exemption?
A It would seem that this only applies to the written word, things such as quotes, newspaper articles, commentary, research, education, it is not a defence for anything else. The fair use exemption is purely for freedom of speech laws.
For example you may need to quote something you have seen or include a paragraph or two from some Else's work to explain something, or as in this post I can only use the name Hello Kitty as it comes under the fair use exemption rule. If this rule wasn't included I wouldn't even be able to type the name on my blog at all without permission.
Q But surely it's good for the brand, it gives them free advertising.
A This maybe true, but that's up to the copyright and trademark holders. If they don't like what your doing they will stop you one way or another.
The laws I have written about here apply to the US and UK. The UK tend to be a bit more lenient and turn a blind eye until you start to attract some attention. The US companies will sue you as soon as they find you if they can, it makes no difference what country you live in. Anything copyrighted or trademarked outside the UK and US will have it's own countries laws.
If in doubt, leave it well alone.
Links to sources and Laws.
US copyright law
US trademark law
UK copyright law
UK trademark law
Deviant art article
Dr who infringement case
Paramount cease and desist letter
Hello kitty infringment letter