A buddy of mine is being sued by a

[bicker]

The OP said this was a "copyright" complaint and not a trademark dispute. Assuming they are correct...

Given the description of items in question, I think that's a big assumption. As such, we probably are best off speaking in more general terms, i.e., what applies in either case.

 

[Carly_Roach]

I can't tell you how many local fairs/festivals I have gone to where people were selling things with Disney characters on them. I have seen blankets, jackets, things to hang on your walls, all sorts of things. DH and I always wondered how these people get away with selling stuff like this? Also, I can think of at least 4 daycares that I have seen that have Disney characters painted on their walls. I always thought that wasn't allowed, am I wrong?

Well, I think it boils down to, "If we catch you, we'll sue". It's just like the police and speeding: they can't stop and ticket every single person breaking the speed limit because there simply aren't enough PO's (nor the time) to do that. However, they CAN catch as many as possible and issue tickets when they DO catch them.

It's up to the consumer and doing the right thing. Yes you can break the law by speeding or trying to use someone else's IP to boost your bottom line. But you have no leg to stand on when you get a ticket or get sued for using that IP.

However, having said that, I do agree with a portion of the following post:

I'm not saying the companies should not enforce their rights, I just don't like it when it reaches David vs Goliath proportions. Fining someone is ok but crushing them and destroying the individual is something else again. If Disney got into the habit of suing families when their kids paint Minnie & Mickey on the walls of their rooms or make posters for their book reports I do think things would change for me... this is how the Napster thing went down in my eyes. If the fight is between 2 giants then crush away but a giant vs an ant is different to me. again it's not whether they are right or wrong, it's weather the threat they pose really deserves being crushed into dust?

Consider all the people who do Hidden Mickey, is that copyright infringement? It probably is but Disney lets it go.

I'm just saying there are shades of gray for me, I'm ok with other people disagreeing with me but this is how I feel.

What Napster and other companies did by going after the small individuals stopped nothing. There is still piracy. In fact, it's even more out of control today than it was when the lawsuits against individuals were happening (in the 90's?). The only thing that changed was that people started seeing the artists as greedy *******s who will destroy anyone. Not only did the public stop buying their work, they stopped feeling even the least bit guilty about stealing it so more people got involved in stealing than ever would have before.

The correct action would have been to stop the piracy at the source rather than at the citizen level. You can go out and arrest and imprison as many drug users as you want - it won't stop the problem. You need to take down the kingpin or cartel. Napster didn't do that. They saw an easy target and took it. What we see today with music theft is the result of going after the easy target instead of the real perpetrator.

 

[tlbwriter]

Consider all the people who do Hidden Mickey, is that copyright infringement? It probably is but Disney lets it go.

What do you mean by people who "do hidden Mickey?"

 

[LuvOrlando]

I think the problem with that line of reasoning is that many "regular people" invest in big companies, so when someone wrongs a big company, they're wronging a lot of "regular people". My wife and I are reaching the age where we're facing the prospect of living off the proceeds of a lifetime of earning income working for big companies, at times, and the proceeds of investing our hard-earned income in retirement savings accounts that provided us gains mostly through the good work of big companies. It steams me up to think that some people would seek to abuse or exploit the bigness of those companies, effectively harming my wife and I, just out of their own avarice.

With respect, I think it is your "skin" that you should seek to moderate. Companies defending their IP are doing what they're righteously justified in doing, and indeed what they're doing reflects their overriding obligation to "regular people" like my wife and I, and almost surely, you and yours even if you choose to not let that register until you get to that point in your life.

Families who selfishly ignore the law for their own personal jollies don't deserve your concern. Instead, you should direct your admirable concern for the families of those who rely on the success of the companies you have chosen to categorically undercut.

Neither. Punishment should take only the offenders' transgressive actions into consideration.


(EDITED to add reply to your follow-up...)

That's really up to David, since David took the transgressive action. Why don't you blame David?

There is no crushing going on. There is no destroying. What happens is fair and equitable administration of the law. If the offender built so much of the foundation of their life on transgression, then it is the offender's fault that the remediation of their transgressions has such impact on them and their family.

And I appreciate that. There are shades of gray: The fair and equitable administration of the law does have different levels of sanction for different levels of transgression.

Tell me how you really feel

Seriously though, I understand what you are saying but I feel the way I feel and emotions are generally out of the realm of debate. It is impossible to argue feelings into submission and that's all I'm talking about. Notice what I'm NOT saying. I'm NOT saying the behavior of these big companies should be banned or that they are illegal to seek recourse through the law. I'm also NOT saying the individuals who break the law are right to do it. I know these companies are within their rights to sue ect. and that all you are saying is true. However, it is also true that this behavior reflects poorly on the big companies to a segment of the population of which I am a member.

There is something unquantifiable and intuitive about how human beings relate to our world and the tide of emotions doesn't always abide by rules. To underestimate this reality can be a big mistake because the little people are the King Makers.... not the Kings themselves.

 

[LuvOrlando]

What do you mean by people who "do hidden Mickey?"

I think if Disney wanted to do so they could argue that the public display deliberately associating a random occurrence, say a group of clouds of puddles, with Mickey Mouse, was an infringement of their character. They don't make a to-do about it because this helps to endear Mickey to the public but the fact remains a non Disney sanctioned representation of a Disney character has occurred. I would tend to think that if obscene or unfavorable images of hidden Mickeys started to pop up, or were used by a competitor Disney would, in fact exercise their rights in the matter. I can't see them letting Universal or a cereal company get away with it, or even a website devoted to hating Disney but they do let regular people do it, in fact it seems encouraged, KWIM. My point is that the practice is selective and I use hidden Mickey's as an example because it's so familiar in this forum... no more and no less.

 

[Geoff_M]

Given the description of items in question, I think that's a big assumption. As such, we probably are best off speaking in more general terms, i.e., what applies in either case.

That's all well and fine, but the problem is that people here tend to use the terms "copyright" and "trademark" interchangeably, and they're not. This confusion helps fuel a lot of Internet myths... such as the notion that a copyright must be defended or it will be lost. The shared generalities are fairly limited when you look at them. Copyrights are assigned for a limited time, while trademarks are renewable "forever". Trademarks must be defended or they can be "lost, not so for copyrights. Copyrights cover the original work as well as derivatives, while trademarks do not offer "shotgun" protection (thus the maker's of Red Wing Shoes are safe from legal harassment from my favorite hockey team). Copyrights were established in the Constitution, while trademarks are a fairly recent legally recognized concept formalized by legislation after WWII. The definitions and tests for infringement for copyrights and trademarks are different.

 

[bicker]

Tell me how you really feel

Seriously though, I understand what you are saying but I feel the way I feel and emotions are generally out of the realm of debate.

Absolutely. By the same token, one's own feelings determines only what is right and wrong for them. One's own feelings doesn't transfer over to other people - those other people operate according to their own feelings, and define what is right and wrong for themselves. Where people intersect, if there is a disagreement, the law determines what is right and wrong.

However, it is also true that this behavior reflects poorly on the big companies to a segment of the population of which I am a member.

That would like me saying that eating beef "reflects poorly" on someone, because I'm a vegetarian. It makes no sense to judge others based on feelings that those people do not, themselves, subscribe to.

 

[bicker]

That's all well and fine, but the problem is that people here tend to use the terms "copyright" and "trademark" interchangeably, and they're not.

Fair enough. What we can say in this case is that what is being discussed is trademark infringement and trademarks must be vigorously defended or they could be lost.

 

[NHdisneylover]

I think if Disney wanted to do so they could argue that the public display deliberately associating a random occurrence, say a group of clouds of puddles, with Mickey Mouse, was an infringement of their character. They don't make a to-do about it because this helps to endear Mickey to the public but the fact remains a non Disney sanctioned representation of a Disney character has occurred. I would tend to think that if obscene or unfavorable images of hidden Mickeys started to pop up, or were used by a competitor Disney would, in fact exercise their rights in the matter. I can't see them letting Universal or a cereal company get away with it, or even a website devoted to hating Disney but they do let regular people do it, in fact it seems encouraged, KWIM. My point is that the practice is selective and I use hidden Mickey's as an example because it's so familiar in this forum... no more and no less.

I think the difference is that if the public makes a tie dye shirt or whatever else with a hidden mickey on it for their own use it is okay--but if someone were selling the items on ebay and Disney found out about them they would be in hot water.

 

[MrsJackSparrow4Life]

So if you know it is wrong and he knows it is wrong and is willing to pay the money then what is the point of this thread?

Just to let us know you are friends with a really stupid person?

 

[Cinderella94]

So if you know it is wrong and he knows it is wrong and is willing to pay the money then what is the point of this thread?

Just to let us know you are friends with a really stupid person?

I've been trying to figure out that one too.

 

[LuvOrlando]

Absolutely. By the same token, one's own feelings determines only what is right and wrong for them. One's own feelings doesn't transfer over to other people - those other people operate according to their own feelings, and define what is right and wrong for themselves. Where people intersect, if there is a disagreement, the law determines what is right and wrong.

That would like me saying that eating beef "reflects poorly" on someone, because I'm a vegetarian. It makes no sense to judge others based on feelings that those people do not, themselves, subscribe to.

No and no, I think you are off on both points and are totally misunderstanding me. That's ok though, it's impossible to expect we all understand each other all the time. Sometimes we just have to respect each other's differences and leave it at that

 

[bicker]

You're contradicting yourself, but it seems that you're okay leaving that inconsistency hanging. I can accept that.

 

[cm8]

No and no, I think you are off on both points and are totally misunderstanding me. That's ok though, it's impossible to expect we all understand each other all the time. Sometimes we just have to respect each other's differences and leave it at that :hippie:

:

 

[LuvOrlando]

Sorry everyone for being so boringly off topic but:

You're contradicting yourself, but it seems that you're okay leaving that inconsistency hanging. I can accept that.

The fact that you can't follow me does not, by definition, mean I am inconsistent. The fact that you can not follow me simply means you can not follow me, no more and no less.

I'm thinking we are having an real life Jean-Paul Sartre "Existential Moment" here, you can't know me because you are not me and I can't know you because I am not you.. why not just leave it at that without throwing parting barbs?

I'm still and I am backing away now because my family will want dinner soon and telling them I am having a philosophical disagreement will not buy me time.

 

[MAH4546]

I thank taberone http://www.tabberone.com/ for taking on Disney, and now we can use Disney material to make items (such as pillows) and resell them (Disney used to object to their material being used commercial). She brought out the First Sale Doctrine. We can also sell thing that use Disney printed paper. What you can't do still, is scan the papers and then use the characters. You can use stickers to make things with Disney now also. I can't use the characters from , for instance a Disney graphic program, but anything (like Stickers) where you are using the original, is First Sale.

Don't thank her. That website is a joke.

I do trademark/copyright law, and if somebody tried to defend themselves with that website, well, let's just say they wouldn't win. It is such a pathetic and, simply put, wrong twisting of the law and the First Sale Doctrine, which a rational court would never apply to a transformation or derivative work (i.e. using a Mickey stitching on a pillow case). That website is very entertaining to read and laugh at.

 

[C.Ann]

Don't thank her. That website is a joke.

I do trademark/copyright law, and if somebody tried to defend themselves with that website, well, let's just say they wouldn't win. It is such a pathetic and, simply put, wrong twisting of the law and the First Sale Doctrine, which a rational court would never apply to a transformation or derivative work (i.e. using a Mickey stitching on a pillow case). That website is very entertaining to read and laugh at.

All the various posts and opinions here - I'm thoroughly confused now.. So are you saying that legally one can still not use anything Disney, create anything with a Disney image (character) on it, use any of the names associated with Disney (let's say "Cinderella") and then sell those items on eBay or at craft fairs and such?

I don't have a pony in this race - I'm just really interested in how far Disney will and can go in the types of things I've mentioned above..

By the way, do you enjoy the type of work you do? Is it a difficult job? Are you involved in the actual enforcement? Sounds kind of interesting to me..

 

[DMRick]

I've talked with her several times via email, and been involved when she first started selling items using Disney material. I don't have to use 'that' website for a defense, as I have a copyright lawyer of my own. I have a note from Disney gotten by our lawyer (because we also sell personalized items) that allow us to resell items made with Disney items, and it came about thanks to this lady. She has been a treasure.
There are a lot of us on eBay that she has helped, and it's been discussed on one of the eBay boards, for several years now.
I'm talking about Disney material (yardage, that used to say on the end, may not be resold) and stickers (not stitching that you mentioned..can't use that still, if you mean embroidery onto something), that in the past would be pulled off eBay..not any longer. You can say it's pathetic, but I'm in my 12th year of a successful business, and it's been very very helpful to us.

Don't thank her. That website is a joke.

I do trademark/copyright law, and if somebody tried to defend themselves with that website, well, let's just say they wouldn't win. It is such a pathetic and, simply put, wrong twisting of the law and the First Sale Doctrine, which a rational court would never apply to a transformation or derivative work (i.e. using a Mickey stitching on a pillow case). That website is very entertaining to read and laugh at.

 

[bicker]

Let's put it this way: If someone creates something original, as defined and recognized by our government, then they are the only people allowed to give people permission to utilize that thing especially within the context of commercial ventures for as long as the laws say the protection lasts.

Surely images that are recognizably Disney characters are not permitted to be integrated into any home-crafts and then sold, on eBay, craft fairs, church fund drives, etc., without permission from Disney.

 

[DMRick]

All the various posts and opinions here - I'm thoroughly confused now.. So are you saying that legally one can still not use anything Disney, create anything with a Disney image (character) on it, use any of the names associated with Disney (let's say "Cinderella") and then sell those items on eBay or at craft fairs and such?[

You cannot. At least not how I'm reading what you are asking. However, Disney sells items such as yardage or paper or stickers. Those items you can (according to Disney) now reuse to make into something else, and resell them. I can't however, take a character from the internet, or even from one of the many software packages I own, and put it on something and resell it. I cannot find a great picture of Mickey, on for instance a mug, and scan it and then put it on something, such as a mousepad, and sell it.
Those types of items eBay is pretty good at taking down and sending a vero notice. However, on the few occasions they have sent me a notice, I send back a copy of the document I have from Disney and it gets restored. You can actually get permission from Disney to sell items with their characters on them, but the form they sent me, when I asked their legal department, had a lot of restrictions. They also had a very high minimum I would have had to sell (and I had to give them all of my private info, on how much we sell, and for how much) and of course they would have gotten a very healthy cut. So we passed, and do very limited things using the stickers and actual Disney items that are meant ot be reused.