Licensing, Copyright, Trademarks & You

Can I Stitch It?

This question is perennial and comes up often. “Can I make a needlepoint of [insert your favorite tream, candy bar, or cartoon character]?”

The short answer is Yes, but . . .

These things are all examples of materials that are licensed, trademarked, or copyrighted. Items of this kind may not be SOLD without prior permission of the holder of the license, mark, or copyright.

Can I Sell my Design?

Importantly it’s the selling that is the problem, not the making. If you make the needlepoint for your personal use and do not sell either the finished work or the design, then you should be fine. These restrictions also apply to publication, on-line or in print.

To sell any of these items, you need to get permission and you may have to pay a licensing fee in addition. It’s always nice to ask the artist before you adapt his work, but, strictly speaking it isn’t required.

But you can’t sell without getting permission and paying either royalties (payments based on individual sales) or a license fee (up front payment of a flat fee) or both.

While anything with a trademark or registered trademark is regulated this way, many other things from fabric designs to works by specific artists are controlled by licenses and royalties. In the art world today this is a significant source of revenue for many artists.

Myths

There are some ideas that don’t apply:

• if it’s old, it can’t be licensed. It isn’t the age that matters it’s the artist or the specific work. I know of artists close to 300 years old that are under license.
• If I change x% of the design, it’s OK. According to what I’ve been told by folks in the business, there is no magic percentage. If it’s similar, the right to sell your version can be challenged. You could still win a court case but you will have legal fees and, possibly, other costs.
• If I had the license once I can continue to sell the artist. Many licensing contracts are for a specific period and can be renewed. The right to copy and sell is yours only for the duration of the license.
• If I have a license for one thing it automatically extends to another item. Let’s say you had a license to make posters of FooBar’s art. That means you can make posters, not needlepoint canvases. To make another type of product, you license must be extended or you must get another license.

Let the Buyer Beware

There are companies and organizations that charge lots for licenses or are known to make it difficult for folks using their work:

• Disney
• Major sports leagues
• NCAA – any college that has interscholastic sports is in the NCAA which controls use of logos and mascots

Beware if you want to sell a design that is from:

• motion picture or major theater production
• comic books
• anything with the circle R (registered trademark) on it (such as candy labels)
• logos
• buildings or other marks, including labels, strongly associated with a brand
• fabric prints
• books written after 1923

Many iconic images, such as William Morris, Beatrix Potter, and the classic Pooh illustrations, are still under license even though they are from before 1923. Date is not the only indicator or public domain works.

The simple answer to this all is: make your own, don’t sell designs that might be controlled, and when in doubt consult an Intellectual Property lawyer.