Disney closing Etsy shops?

[Aurora0427]

My husband is an attorney and he has never understood how these Etsy shops get away with selling all of this Disney merchandise.

 

[snowweisz]

That doesn't necessarily make it legal. They would have to be licensed to sell the merchandise. You can buy Disney material and make things for your kids at home but you can't then sell them without paying royalty.

And can we stop saying Disney is closing shops. They aren't. They are simply saying stop using our copyright/trademark characters and intellectual property. If the store can stay in business using other things it will be ok. It's the store owner who makes the decision to close.

No, actually you can if you use licensed fabric.
The license in that case, was paid for by the manufacturer of the fabric. You can use the fabric however you want.
The precedent for that was established in a case dealing with Precious Moments lol


And idk about that second thought. The way I understood some of these things did ask for immediate closing of the business, especially if they had a name that could be seen as referencing Disney. Besides, if the letter isn't issued to the seller and the complaint is instead submitted to Etsy, it comes with immediate closing of the shop. So yeah, they are closing the shops.

 

[lost*in*cyberspace]

I hate when people do that... Report others just so you can get all the money. People are greedy. I had that happen to me...sort of. I put an ad in our stores bulletin board for VHS transfers and someone kept taking them down. Either because of the price or the fact I put that I have a college degree People suck like that.

Seriously?

Disney has every right to protect their copyright and they defend it vigorously. What difference does it make who reports violations? Don't violate the law.

 

[grumpymickey]

LOL... you reap what you sow... or sew

lol

 

[Luv0fDisney]

Seriously?

Disney has every right to protect their copyright and they defend it vigorously. What difference does it make who reports violations? Don't violate the law.

I don't transfer Disney vhs to DVD I transfer people's home videos to dvd. I don't transfer anything store bought.

 

[ArwenMarie]

Whether Disney sells similar products or not has nothing to do with people using copyright material without permission. Anyone who owns a copyright must defend that copyright when they are aware of an infringement. If they don't they risk their intellectual property becoming public domaine. Disney without its copyright characters doesn't exist.

Now if Etsy would pay for use they would have no problem.

Right, they have to do this to defend their copyright.

Wouldn't the sellers have to pay for the use though?

 

[Judyfun]

I own an embroidery machine and lots of Disney designs. But I only make items for my own family and friends. I have been stopped while at Disney and asked (not by employees) if I sell because they are looking for items. I always tell them 'no' (the money I could make!)

 

[EpicBilynn]

I completely understand where Disney is coming from. I go on Etsy looking for the Disney painted Toms. If Disney would sell things like that I'd be all for it. But I just have my brother who is an incredible artist paint some for me. No money trades hands. Our mom makes sure it's purely from love

 

[sarahtar]

That doesn't necessarily make it legal. They would have to be licensed to sell the merchandise. You can buy Disney material and make things for your kids at home but you can't then sell them without paying royalty.

.

That's not *entirely* true. The fabric says on it that it's only for home use, but that's actually not enforceable.

"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INT'L, INC. (96-1470), 98 F.3d 1109, reversed.


Selling something made with licensed fabric (or selling something made with other licensed materials - like a hair bow made with commercially-available Disney ribbon) is, according to this Supreme Court decision, not an infringement of copyright. (and also doesn't require royalties)

Selling something you've made and either using trademarked/copyrighted/licensed names to describe it (a while back, the folks who own Firefly were going after people selling "Jayne Hats" because Jayne is their character) OR making them into trademarked/copyrighted/licensed character replicas (an applique of Mickey Mouse, or a sweater knit with Wall-E on it) *is* a violation.

Also, no, I will promise you that literally no Etsy seller is paying royalties to Disney. They don't produce on a large enough scale to make that anywhere nearing affordable. Also, if you look at the Disney requirements for licensure, very few Etsy sellers could even quality to apply: https://www.disneyconsumerproducts.com (frankly, not to be snobby, but the requirement to comply with current product safety laws would knock out a goodly portion right there, and the requirement to have insurance would take care of all but a tiny portion of whoever remains.)

 

[JohnDaleswife]

Ok, can someone explain to me how local bakeries, not Wal-Marts, Kroger, ect, but real custom owned bakeries can make all the Disney cakes they want and not get into trouble.

I have noticed on some of my favorite ones Facebooks page they will say that they can't make you a Minnie cake or a Nemo cake, but they can make you one that matches your theme. But of coure, they are a Minnie, or Nemo cake, and look oh so fabulous at that!

Just made me wonder.

 

[ValarDisneyus]

I read somewhere that if they are making dresses with licensed Disney fabric that they've purchased, it's legal. Not sure though

^^This is actually correct. Now, most licensed fabrics do have "do not use for commercial resale" or similar printed on their selvage edges, however that does not actually formally prohibit the use. There is something called "the bill of first sale" that covers this. Now, if it's non-licensed, like an embroidered shirt with an embroidered mickey on it that was put there by someone who does not have an agreement with Disney, that is infringement. Now, works that make a comment about the original work are also allowed. Does everyone remember the Avengers cartoon drawn to show how ridiculous Black Widow's pose was? It was obviously Marvel's characters, but it's well allowed because it clearly made a statement about the original work.

I am a bow and dress maker; I admin a chat group of more bow makers (over 3,000 of them) and it SOUNDS like the sweep started looking for Frozen items.

I do not make Disney inspired items for anyone but my own daughter. (Perfectly legal to make things for personal use.) I don't want to invoke the ire of my favorite company even if it is legal-by-loophole. Nope nope nope.

I do struggle, though. I'd love to make Disney inspired things. I don't think they ever really sell use of their license out to small in-home businesses, though. I respect that they want to make sure their brand stays protected and is only represented by quality craftsmanship and well designed items.

Also, sometimes I wonder if, say I sew a yellow dress with pink rose accents for my daughter (and right now, only for my daughter, but if I were to market them) to wear to BOG....am I making someone angry? It's obviously inspired by Belle. But it's not a replica of Belle's dress. It's a yellow dress whose purpose is feeling festive at a fancy dinner.

Copyright laws boggle the mind when you start trying to figure out how to honor people's favorite things without stepping on toes.

 

[ValarDisneyus]

Ok, can someone explain to me how local bakeries, not Wal-Marts, Kroger, ect, but real custom owned bakeries can make all the Disney cakes they want and not get into trouble.

I have noticed on some of my favorite ones Facebooks page they will say that they can't make you a Minnie cake or a Nemo cake, but they can make you one that matches your theme. But of coure, they are a Minnie, or Nemo cake, and look oh so fabulous at that!

Just made me wonder.

In litigation, Disney has to prove that your use of their brand prevents their own profit. Until Disney opens enough official bakeries to keep up with the demand for birthday and wedding cakes the world around, they will probably not push this. (But they technically could!)

 

[Suger Mag]

Ok, can someone explain to me how local bakeries, not Wal-Marts, Kroger, ect, but real custom owned bakeries can make all the Disney cakes they want and not get into trouble.

I have noticed on some of my favorite ones Facebooks page they will say that they can't make you a Minnie cake or a Nemo cake, but they can make you one that matches your theme. But of coure, they are a Minnie, or Nemo cake, and look oh so fabulous at that!

Just made me wonder.

I think the key is they are local. Not a huge online presence like a ETSY shop that reaches out over the internet and advertises on the internet. Most local bakeries are going to have their sphere of influence in a small local radius... it is not very likely that a Disney executive going to go into my neighorhood bakery in small town Massachusetts to find out if they are making Disney cakes... not really worth their time and effort to deal with a single store. However it is more than likely that some Disney legal intern is sitting on a computer at corperate and doing an internet search on ETSY... in a hour or two they can identify many 'stores' easily, and also send out notices easily as well... much more worth the time and effort.

 

[beer dave]

I worked at a carvel ice cream shop in the 80's--- for about 4 years-- (high school job) We would get a call about every 6 months from a person who didn't necessarily sound like a customer, asking if we make cakes with disney characters on them. The owners made sure any employee would know about this potential call and all would know we didn't make disney cakes.

 

[asmit4]

The law is the law....and it sucks.

Here is my issue- I have an etsy maker who does iron ons for t-shirts on the sly. she hasn't been caught yet. She does one that says "I'm going to disney world" and specializes in shirts that say things like Mom/Dad inside mickey ears and corresponding colors...we have shirts for both halloween and christmas colors.

About 2 years ago she took off ALL of her disney shirts- but I have her contact info so she still does them for me.

As far as I know Disney doesn't make these items so HOW are they losing out on profit???? They don't sell the product I want so I have no choice but to buy it elsewhere.

 

[Iralyn]

The Etsy shop that I ordered from before going to Disney is still up and running and adding new Disney designs (transfers with other embellishments on clothing). A little surprised that it wouldn't have been caught in a Disney sweep since it seems like Disney is a large percentage of their business. But I guess there are so many that they can't get to every one...yet.

I will admit that I never even thought about the copyright issue when ordering...never occurred to me that they were obviously breaking the law with their designs... I was just looking for something cute and cool for our summer visit. We did buy a couple tees from the Disney store, too, but found them a bit warm for the parks.

 

[SashaFarce]

Here's my question. I was looking at clip art the other day and there are some that are Disney-inspired (such as red-haired mermaid, brown haired princesses in yellow dresses etc) but are much less realistic looking and are not copies of Disney princesses verbatim. More like inspired by, and aren't marketed as Disney.

So is that legal? I see some scouting troops have taken these clip-art pics from Etsy, bought the commercial license from the Etsy shop for it, and have made patches (obviously not for profit).

 

[Alice Royal]

I also recently saw that one of my go-to bow makers started to take down many of her products and replace them with 'generic' names. Here's an example:

http://magicalribbons.com/image/95414936249

Any name that's NOT trademarked, such as Rapunzel, Cinderella, and Pocahontas, is legal to use. Any name that belongs exclusively to a character, such as Belle or Ariel, is out of the question in terms of copyright. Many, many sellers have been dodging legal issues simply by using very generic yet still recognizable names on products with Disney character themes. (This is also how birthday party companies are able to use 'Disney' characters--by dressing them up but calling them 'Snow Princess' or 'Mermaid'.)

 

[sarahtar]

Also, sometimes I wonder if, say I sew a yellow dress with pink rose accents for my daughter (and right now, only for my daughter, but if I were to market them) to wear to BOG....am I making someone angry? It's obviously inspired by Belle. But it's not a replica of Belle's dress. It's a yellow dress whose purpose is feeling festive at a fancy dinner.

You would be fine. Clothing is not copyrightable. This came to a big "thing" when the people who own Firefly were going after people selling "Jayne hats." You can knit an orange, red, and yellow earflap hat and sell it. You cannot call it a "Jayne hat" or claim that it's from Firefly.

You could similarly make a yellow dress with pink rose accents that looks a lot like Belle's dress, but as long as you don't call it Belle, or use "Disney," "Belle," etc in your marketing, you're fine. You can't imply that it's a Disney product.

 

[sarahtar]

http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs

This is a good place to start learning about legal issues with clothing.

If I had to take a guess, I'd guess that Disney's pursuing the C/D orders under trademark law for using their trademarked names.