Or Why It is Imperative to Ask Permissions to Make Things Based off of Someone Else’s Work
So I had this plan to write a post about the books I have in my crochet book collection. Then I looked at the different copyrights in said books. While I do plan on writing that blog later this week, today’s blog will be on copyright, licensing, public domain, and trademarks. All of these are of the utmost importance if you plan of crafting things to sell. I know a few craft sellers who were shut down because they neglected copyright and licensing and got shut down fast, and are still paying off the fines involved.
The General Process for Gaining Permission
- Determine if Permission is Needed
- Identify the Owner
- Identify the Rights Needed
- Contact the Owner and Negotiate Whether Payment is Required
- Get Your Permission Agreement in Writing
What is a copyright? By definition, a copyright is the exclusive legal right, given to an originator or an assignee to print, publish, perform, film or record literary, artistic, or musical material, and to authorize others to do the same.
In laymen’s terms this is the right to copy something. The original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work.
What happens when you don’t follow the rules when it comes to copyright?
That is known as infringement of copyright. Infringement of copyright can get tricky, especially if you’re under the belief that the item in question falls under public domain or isn’t trademarked, which I’ll get into in a little bit.
It is important to note that any individual or business that infringes copyright can face legal action. Infringement is usually treated as a civil offence, although it can, in certain circumstances, be deemed a criminal offence, with damages awarded by the court. Depending on the severity of the infringement, the result can be a fine or even imprisonment.
According to the United States Copyright Office, the following are the legal stances on infringement on copyright .
Infringement on Copyright:
- General: Except at otherwise provided by this title, an infringer of copyright is liable for either:
- The copyright owner’s actual damages and any additional profits of the infringer, or statutory damages
- Actual Damages and Profits: the copyright owner is entitled to recovers the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
When it comes to sustaining the burden of proving infringement:
If the copyright owner sustains the burden, and the court finds the infringement was committed willfully, the court may increase the award of statutory damages to the sum of not more than $150,000.
If the infringer sustains the burden, and the court find, that the infringer was not aware and had no reason to believe that his or her acts constituted and infringement of copyright, the court in its discretion, may reduce the award of statutory damages of not less than $200.
All of this information, as well as how to register a copyright, can be found on www.copyright.gov. The quickest way from there to get the information is to type Chapter 5 in the search bar. Chapter 5 is the section of the US Copyright on Copyright Notice: Deposit and Registration.
By definition, public domain is all creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived or may be inapplicable.
In general, works published after 1977 will not fall into public domain until 70 years after the death of the author, or the corporate works, anonymous works, or works for hire, 95 years from the date of publication, or 120 years from the date of creation, which ever expires first.
That being said, as of January 1, 2020 anything, with the exception of audio, published in or before 1924 is now public domain.
Trademark, also called trade mark or trade-mark. This is a type of intellectual property consisting of a recognized sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services and usually called service marks.
Trademarks DO NOT expire. These will persist so long as the owner continues to use the trademark.
If you are not sure if something is trademarked or not, find out. If it is, avoid it unless you obtain permission. Disney is a prime example of why you don’t violate licensing/trademark rules. They have a site you can go to to apply for permissions. If you don’t, they will find you and either make you a deal or sue you and take your earnings for the item or take your shop. I know plenty of people who this has happened to.
The licensing I’m going to refer is called a product license. This involves obtaining permission from a company (licensor) to manufacture and sell one of more of it’s products within a defined market area. The company that obtains these rights (licensee) usually agrees to pay a royalty fee to the original owner.
A royalty fee can be either a flat fee or a percentage of the sales of the products that are incorporated in the license.
These are just the board overview for these particular topics. Do your own research for who these pertain to your products.
As always, stay safe out there everyone. I’m hoping to have the next blog post up before Monday, but that depends on how the rest of my week goes.