A buddy of mine is being sued by a

[bicker]

sry abut that I did not reize that there was a big difference and yes I have heard of teachers doing that

Yes, big difference. Commercial enterprise ---- Municipal service. Very different.

 

[DMRick]

I am confused there are a lot of class rooms that have disney characters on their walls so why would this person be sued

I thought the Daycare images were painted on by the owner (as was the case in our area..they did let them keep their name which still suprises me), where most classrooms have cling on's or stickers purchased from places allowed by Disney.

I found this in snopes, and they were hand painted:
http://www.snopes.com/disney/wdco/daycare.asp

 

[Geoff_M]

tabberone,

I gotta say, I understand where the "other guy" is coming from on this one. I'll be up front and say that I'm not a trained lawyer nor am I in a "scum" job (as you so eloquently stated it). But being a published photographer, I do have a keen interest in copyright law and like to read up on the subject.

Here's what I see as your weaknesses...

1) You're confusing legal strategies and practicalities with the law. I agree with your critic that your success in your legal duels with Disney, et al, likely has a lot to do with your limited size. The rights holder tries to play legal games with you, and when you show them that you can play that game too, it then becomes time for the company to make a cost/benefit decision before they decide to take it to the next level. Unless they want to "go all the way", their other option is to "settle" with you. As pointed out, the calculus is a lot different if you're talking about a small operation (by your own admission at the time your tussle with Disney the amounts you were talking about was in the hundreds of dollars) versus a significant operation. If you're well versed in copyright law, you'll know that one of the factors that court are obligated to consider is the degree that the alleged infringement impacts the rights holder. Courts are less inclined to move against de minimis usages.

You clearly have a "winning" strategy when it comes to dealing with fabric copyrights, but I do think that you're liking overselling things a bit.

The fact that Disney and others may also now be leaving others alone may be more testament to your preaching of the Gospel of legal counter-measures to others in the cottage industry instead of Disney feeling they don't have a legal leg to stand on.

2) You may very well be relying too heavily on the cases you cite. As pointed out, the Quality King suit involved grey market "parallel importation" of product, not infringement based on a derivative work. As for the Precious Moments case, from reading the initial decision posted on your site, it seems like there would be some problems trying to apply it to ALL uses of legally acquired fabrics. What won the case for La Infantil was the fact that the blankets were not considered transformative enough to be considered a derivative work. The judge compared the blankets to the cited Lee case that involved gluing copyrighted notecards on tiles and reselling them. In the courts view both were examples of changing the "mounting" of the original work. Judge Perez-Gimenez quoted from the Lee case that when the copyright material is used in "a mundane act [that] falls into the narrow category of works in which no creative spark exists" there is no infringement. The comparison seems logical... the quilted blanket would basically be a rectangle of the copyrighted fabric with trim added and batting sandwiched behind it for warmth.

However, I think you'd agree that the Lee case doesn't green-light EVERY use of copyrighted notecards in new works. There certainly would be cases when enough "creative spark" would exist to warrant something being declared a derivative work and thus an infringement. However, you appear to be saying that the Precious Moments case provides enough legal cover to protect all uses of copyrighted materials... or do you think there are limits on this too? I'm not sure know far the PM case would stretch past things like blankets.... and some day we may find out.

 

[tabberone]

tabberone,

Here's what I see as your weaknesses...

1) You're confusing legal strategies and practicalities with the law. I agree with your critic that your success in your legal duels with Disney, et al, likely has a lot to do with your limited size. The rights holder tries to play legal games with you, and when you show them that you can play that game too, it then becomes time for the company to make a cost/benefit decision before they decide to take it to the next level. Unless they want to "go all the way", their other option is to "settle" with you. As pointed out, the calculus is a lot different if you're talking about a small operation (by your own admission at the time your tussle with Disney the amounts you were talking about was in the hundreds of dollars) versus a significant operation. If you're well versed in copyright law, you'll know that one of the factors that court are obligated to consider is the degree that the alleged infringement impacts the rights holder. Courts are less inclined to move against de minimis usages.

I encounter this argument all the time from those who want to be dismissive of small actions. While you try to logically apply cost factors what you are really doing is seeking some argument to minimize one side and maintain a justification for the other. You are speculating about what these companies do when there is a small case while I have been in many. And won the great majority of them.

2) You may very well be relying too heavily on the cases you cite. As pointed out, the Quality King suit involved grey market "parallel importation" of product, not infringement based on a derivative work. As for the Precious Moments case, from reading the initial decision posted on your site, it seems like there would be some problems trying to apply it to ALL uses of legally acquired fabrics. What won the case for La Infantil was the fact that the blankets were not considered transformative enough to be considered a derivative work. The judge compared the blankets to the cited Lee case that involved gluing copyrighted notecards on tiles and reselling them. In the courts view both were examples of changing the "mounting" of the original work. Judge Perez-Gimenez quoted from the Lee case that when the copyright material is used in "a mundane act [that] falls into the narrow category of works in which no creative spark exists" there is no infringement. The comparison seems logical... the quilted blanket would basically be a rectangle of the copyrighted fabric with trim added and batting sandwiched behind it for warmth.

The Quality King case is about gray goods and parallel imports but that is not what the quotes are all about. In the unanimous decision, Justice Stevens was citing their justification for their reasoning. As such, he simply stated the fact that the first sale doctrine applied and why. The first sale doctrine quote we post is for others to see the reasoning why companies cannot do many of the thing they try to do. What you are doing is looking for an argument to negate the quote and diminish the effect of the quote. You failed.

And you also seek to diminish the Precious Moments decision. What the judge said was, "The question presented, then, is whether the items manufactured by Teresita Martin Sewing Service from Precious Moments fabric are 'derivative works' infringing on Precious Moments' copyright." The fabric was not "transformed" but rather utilized. Using licensed fabric to make an apron falls into the same realm. The cases did not revolve around the "mounting" of the work but rather that the work had not been recast or transformed - you are over reaching..

However, I think you'd agree that the Lee case doesn't green-light EVERY use of copyrighted notecards in new works. There certainly would be cases when enough "creative spark" would exist to warrant something being declared a derivative work and thus an infringement. However, you appear to be saying that the Precious Moments case provides enough legal cover to protect all uses of copyrighted materials... or do you think there are limits on this too? I'm not sure know far the PM case would stretch past things like blankets.... and some day we may find out.

Of course the Lee case does not grant permission to all cases of using note cards but it is the use in the case that is the essence of the decision. The note cards were consumed in the making of the tile and the note card were not altered in any way. The "creative" spark to which you allude required the note cards to be altered or transformed in some manner into a new item themselves - not merely used to make something new like a tile.

In Scarves By Vera, Vera lost when American Handbags used her trademarked/copyright towels to make handbags. And I have never said the Precious Moments case protects all uses of copyrighted work. You present a false allegation to deflect attention away from your claims. Precious Moments, and many other cases, show that a lot of the companies are engaging in legal intimidation to control the secondary market when many sales are proper use. Yes there are a lot of infringements out there, far too many. However, more than one study has shown that eBay and other sites are being lied to by companies and competitors who want to improperly interfere with listings. 25% to 30% of all take down notices are bogus. This come from Stanford University and Google. If 25% of people arrested turned out to be absolutely innocent, would you find that acceptable conduct by the authorities?

 

[Geoff_M]

And I have never said the Precious Moments case protects all uses of copyrighted work. You present a false allegation to deflect attention away from your claims.

Quote from tabberone's site (emphasis mine):

In Precious Moments vs La Infantil, 1997, the federal court invoked the first sale doctrine in denying Precious Moments attempts to block the use of its licensed fabrics to make bedding for sale. The 1st Circuit Court said making a fabric item from fabric lacked any originality so it was not copyright infringement.

You seem to make the blanket statement (excuse the pun) that the court in the PM case said it's not infringement to sell any item made from licensed fabric. But that's not what the ruling said. The rules dealt with the items at the heart of the case.... bedding. Here's what the judge wrote (bolding mine), people here can decide for themselves:

The Lee court held that for a work to be a "derivative work," it must contain creativity and originality that would make it independently copyrightable. Id. at 580-81. Mounting on tile was indistinguishable from mere framing, the court reasoned, 3 and the process was a "mundane act [that] falls into the narrow category of works in which no creative spark exists." Id. at 580, 581.

...

This Court agrees with the Lee court that Mirage and the subsequent cases read the originality requirement out of the definition of "derivative work" and open the door for the most trivial of modifications to generate an infringing derivative work. Applying the proper standard to the case at bar, the Court finds that the necessary element of originality is absent from the items manufactured for La Infantil from the Precious Moments fabric. They therefore do not constitute "derivative works" infringing on Precious Moments' copyright. Precious Moments thus does not carry its burden of showing a likelihood of success on the merits on its copyright claim, and the Court need not consider the remaining requirements for a preliminary injunction.

Nowhere does the judge say anything that points to a general notion that any item made from licensed fabric cannot be considered a derivative work and therefore cannot be an infringement of copyright. The judge could have made a general statement like was done regarding the doctrine of first sale, but the court stopped way short of that.

 

[tabberone]

Geoff M:
like I stated, you are looking for phrases to diminish what is being said to justify your beliefs. You are not citing anything that is contrary except for excerpts that you then rationalize to fit your needs.

Show me cases that support your contentions.

 

[Geoff_M]

Geoff M:
like I stated, you are looking for phrases to diminish what is being said to justify your beliefs. You are not citing anything that is contrary except for excerpts that you then rationalize to fit your needs.

Show me cases that support your contentions.

I'm not the one asserting that there is an open ended right to use such fabric and put forward the PM case as "proof". One sentence the judge in the PM ruling alone proves that there is a limit:

This Court agrees with the Lee court that Mirage and the subsequent cases read the originality requirement out of the definition of "derivative work" and open the door for the most trivial of modifications to generate an infringing derivative work.

There clearly is a bar. You'll have to forgive me when I think that when judges refer to things rulings, that they exist. It's been my experience that words mean things.

You have as many cases that show that there's an open ended right to use such fabrics as I do that there isn't.

 

[tabberone]

I'm not the one asserting that there is an open ended right to use such fabric and put forward the PM case as "proof". One sentence the judge in the PM ruling alone proves that there is a limit:There clearly is a bar. You'll have to forgive me when I think that when judges refer to things rulings, that they exist. It's been my experience that words mean things.

You have as many cases that show that there's an open ended right to use such fabrics as I do that there isn't.

As I stated, you are cherry-picking and rephrasing. The Precious moments court stated:

Matters in this case have boiled down to a single issue -- whether La Infantil may, consistently with the copyright, trademark, and competition laws, use authentic, lawfully acquired Precious Moments fabric to have baby bedding manufactured which it then sells to the public at the La Infantil store.

The other statements were justifications for the decision. I have never said Precious Moments granted an "open ended right" to anything. It is simply proof that using licensed fabrics to make and sell items is not illegal.

As for the case, I've shown mine - show me the cases that you claim exist. Alluding to them is weasel wording.

 

[Geoff_M]

As I stated, you are cherry-picking and rephrasing. The Precious moments court stated:

Yes, I understand that using licensed fabric to make items that lack sufficient originality, such as bedding, is perfectly legal and that was what the court stated.

The other statements were justifications for the decision.

Not quite... If the court had deemed the bedding a "derivative work", then the doctrine of first sale would not have been enough to save La Infantil:

The first sale doctrine, however, limits only the distribution rights of the copyright owner; it does not limit the other exclusive rights enumerated in § 106, including the right to prepare derivative works. The question presented, then, is whether the items manufactured by Teresita Martin Sewing Service from Precious Moments fabric are "derivative works" infringing on Precious Moments' copyright.

Both dominoes had to fall in La Infantil's direction in order for them to win the copyright argument... and they did.

I have never said Precious Moments granted an "open ended right" to anything.

Here is what you said, word for word: "The 1st Circuit Court said making a fabric item from fabric lacked any originality so it was not copyright infringement." Please show me the limitation expressed in that interpretation of the court's opinion. You say that any "fabric item from fabric" by definition would "lack originality" and therefore not be an infringement... period. There is where I think you go off the tracks. My mother-in-law makes distinctive dolls out of fabric. Doll designs can be copyrighted (ask the former makers of Bratz dolls). Therefore that would be a counter example to your blanket assertion. To try and drive the point home, please allow me to rewrite your paragraph so it doesn't overstate the PM case:

In Precious Moments vs La Infantil, 1997, the federal court invoked the first sale doctrine in denying part of Precious Moments' attempt to block the use of its licensed fabrics to make bedding for sale. Additionally, the 1st Circuit Court said using licensed fabric to make simple items that lack sufficient originality or traditionally do not qualify for copyright protection (such as clothing, bedding, or other useful articles) does not constitute infringement as a derivative work.

Can you see the difference? With my version, most of your readers will still be able to take comfort that they're protected legally since I'd guess that most of what they make with the fabric would fall into "not copyrightable" category... but it leaves room for the notion that if what is made DOES contain elements that are copyrightable, then you may be sticking your neck out.

It is simply proof that using licensed fabrics to make and sell items is not illegal.

Then following that logic, the fact that courts generally recognize that educators may in certain circumstances make photocopies of legally acquired copyrighted materials for educational purposes is "proof" that it's not illegal for schools to make photocopies of copyrighted materials. The problem is that your quote and my educator quote both take ideas too far.

 

[bicker]

Yes good insight there at the end, Geoff. People trying to rationalize transgression often must distort things to weave their rationalization. It amazes me how often I see even the most extreme creation in that regard, the, "I got away with it so it is therefore not wrong," rationalization.

The problem that all this very detailed material causes, though, is a lack of clarity in the minds of casual readers. Heck, I've seen such back-and-forth referred to later as clear proof - by both sides of the argument.

Anyone still reading this thread shouldn't allow themselves to be snowed under like that. The basic principle applies: You typically are not allowed to use someone else's IP without their permission.

 

[tabberone]

I am still waiting for those many court cases you claim to have that show we cannot use licensed fabric while you continue to cherry-pick and attempt to rationalize away.

Show me the cases.

 

[rie'smom]

Yes good insight there at the end, Geoff. People trying to rationalize transgression often must distort things to weave their rationalization. It amazes me how often I see even the most extreme creation in that regard, the, "I got away with it so it is therefore not wrong," rationalization.

The problem that all this very detailed material causes, though, is a lack of clarity in the minds of casual readers. Heck, I've seen such back-and-forth referred to later as clear proof - by both sides of the argument.

Anyone still reading this thread shouldn't allow themselves to be snowed under like that. The basic principle applies: You typically are not allowed to use someone else's IP without their permission.

This is not just rationalization. Suits were brought. Tabberone won. It was decided that it was not a transgression.

 

[Geoff_M]

I am still waiting for those many court cases you claim to have that show we cannot use licensed fabric while you continue to cherry-pick and attempt to rationalize away.

Show me the cases.

And I'm still waiting on you to cite a case that states that any fabric item made made from licensed fabric cannot be considered a derivative work.

Show me the cases.

But, hey, it's been real fun... Hopefully you don't get anyone sued by following your published rationalizations that the courts have said that you can sell anything that's made out of licensed fabrics based on two cases involving "useful articles".

It's also ironic that even though I largely agree with you on the legalities in question, because I point out that your critics may have a couple of valid points regarding taking the issue too far you seem to want to lump me in with the "scum" lawyers that you so clearly despise.

Suits were brought. Tabberone won. It was decided that it was not a transgression.

In the cases with Disney and others (as referenced), there was no decision on the matter. Both parties settled and the lawsuit was dropped. tabberone certainly "won" in the sense that they got what they wanted, but no court opinions on the legalities were issued. This isn't to say that they would have lost in those instances, but it not the same as a court siding with you.

 

[tabberone]

You have as many cases that show that there's an open ended right to use such fabrics as I do that there isn't.

YOU made the statement. Show me the cases. All you are doing is weasel wording.

 

[tabberone]

And something else. When the other side offers to settle on your terms, pay your expenses and promise to leave you alone you really can't continue in court. In the courts eyes you've been "made whole" and they don't want you taking up any more time.

More telling then these companies like Disney and MLB leaving me alone is that these major corporations have backed off of coming after other sellers who are using licensed fabrics.

All they would have to do is go after one seller, win in court if it was winnable then use that as a club to go after everyone else.

 

[Geoff_M]

YOU made the statement. Show me the cases. All you are doing is weasel wording.

I see now... you missed my jest. The answer in both cases (yours and mine) is zero.

 

[DMRick]

And this more than works for me!!! When eBay undoes a VERO, and we can put back up, what Disney had taken down (and Disney no longer reports it to eBay as something not allowed), I've won, without even going to court.

More telling then these companies like Disney and MLB leaving me alone is that these major corporations have backed off of coming after other sellers who are using licensed fabrics.

 

[DipsyDoodles]

are you posting as a warning? because your friend was in the wrong and I don't blame the company one bit. Just like Disney won't let adults wear costumes of the characters in the park because they don't want any old person representing them the company in this case doesn't want any old person making watches and putting them into circulation representing them without them being responsible for the quality.


It is bad enough he did it for friends but once he started selling them he was way over the line.

There are kids/adults all over the parks wearing character costumes....Mickey, Minnie, Princesses are just a few examples. Some are purchased but alot are hand made.

 

[tabberone]

I see now... you missed my jest. The answer in both cases (yours and mine) is zero.

You were not jesting and now you want to weasel out acting like it is a joke? You admit you have nothing just like your convoluted reasoning of established cases - no substance.

 

[DMRick]

They do have rules in the parks about adults dressing like characters. I thought it was so children didn't mistake them for Disney World employees.

I found this on the web when someone asked about dressing up:

Normally, adults cannot wear anything resembling a costume. Children are allowed to dress up. This is because others may think those guests who are dressed up are actual characters. Disney can't control the behavior of non cast members, so if a guest who is dressed up acts badly, it could be believed that it's actual a Disney character acting badly. Then Disney would have to take the blame for that.

For the Halloween function, you are correct that these same rules don't apply. All guests are allowed to dress up, and trick or treat for candy around the park. I have seen many, many adults & children alike dress up for the event. Since everyone is dressed up, it is unlikely that anyone will think a guest is really a character. So feel free to dress up!

There are kids/adults all over the parks wearing character costumes....Mickey, Minnie, Princesses are just a few examples. Some are purchased but alot are hand made.