Why am I talking about copyright law on a crafting blog? As crafters, we use images and saying in our projects. Whether we are using those images for personal use or for commercial use, we should have a basic knowledge of trademark and copyright law. Since I am not an expert in this topic I reached out to Mariam Tsaturyan, who is a Trademark and Business Attorney at Mariam at Law to help me explain copyright law for many of all of us crafters.
Copyright and Trademark
Could you describe the difference between trademark and copyright in non-legal terms?
Trademarks and copyright are both part of intellectual property law. While trademarks protect your brand and brand identity, copyrights protect original works of authorship that are actually fixed on a tangible medium such as stories, articles, architecture, choreography, etc.Mariam Tsaturyan
How do you know if an image is trademarked or copyright protected?
Images are a work of authorship and as such it’s protected by copyright. Trademarks don’t protect images. Trademarks protect your brand and brand identity. The only time images will be protected under trademark is when the image starts identifying the brand (logo, or another secondary image).Mariam Tsaturyan
Copyright protection attaches automatically from the moment the work exists. This means that a work of original authorship is protected under copyright, as long as it’s not just in your head or a mere idea.
Personal Use and Commercial Use
Next, I want to get into how to get the right to use a copyright protected image, so could you describe the difference between personal and commercial use license.
When an image has a registered copyright, they get wider protection and more damages in case of copyright infringement. Generally speaking, you’re not allowed to use a copyrighted image for personal or commercial purposes. You need the copyright owner’s permission. In some circumstances, your personal use can be attributed to “fair use”. However, this is decided on a case by case basis.
The difference between a personal license and a commercial license is that the personal one allows you to use it for your personal purposes. You can create whatever you want and use that image in it. The commercial license is for being able to sell that image. For this you would need a commercial license.Mariam Tsaturyan
Per Mariam’s copyright law information above, even using copyright protected image for personal use would be copyright infringement. This means that we as crafters upload images we find online to use with our Cricut, we are breaking copyright law.
The only images that we can use for personal use image would be all of the licensed images in Cricut Design Space. Cricut has worked directly with the owners of those images and obtained the correct license for those images to be able to sell them to you, for personal use. If you are using an image from Cricut Design Space for personal use you are protected from infringement of any copyright law.
How should a person go about obtaining a commercial use license?
The copyright owner of that image usually will sell a standard license and also a commercial one. You can choose which license you want to purchase at the time of purchase. The commercial one costs more than the standard license.Mariam Tsaturyan
Since there are many people selling images online for crafters to use, and some of them will offer an option to purchase a commercial use license with those images, I asked Mariam specifically about this. I was not surprised when she said that purchasing a commercial use license from someone selling an image on Etsy WILL NOT protect you under copyright law. This is because that seller does not own the image. The original producer of the copyright for that image, and to legally obtain that license you would have to purchase that from the original owner.
Since I am a huge Disney fan, I asked her specifically about Mickey and Minnie Mouse images. I dive deeper into the topic of Disney Cricut images in a post HERE, but in short, here is what Mariam has to say about my favorite mice.
Mickey Mouse and Minnie Mouse both are trademarks, aside from being copyrights. Trademark protection does not expire if renewed on time. I’ve seen a lot of people draw paintings or designs that include Mickey Mouse in them. This is an infringement. Disney is very protective of its trademarks and does pursue infringers all the time. The ears on the mouse are not protected, so if you just want to draw mouse ears, you can. However, the moment it starts to look like Mickey Mouse or Minnie Mouse, then you’re infringing a trademark.
Without obtaining a license from Walt Disney, no one has a right to reproduce or draw any images or create any designs with Mickey Mouse and offer for sale.Mariam Tsaturyan
In the crafting world this would include the free svg files of a copyright protected image.
Copyright law and “inspired by” images
Often we will see crafters trying to get around copyright law by saying that something is “inspired by” a brand or copyright protected item.
There is no clear cut answer to this. Every time you want to create or sell something, you need to ask yourself this question- “is the public or my audience going to think this is Mickey Mouse or Minnie Mouse?” in other words, are there going to be people who confuse your work and accept it as Mickey Mouse? If the answer is “yes”, then you’re infringing. Now, sometimes, you might think the answer is “no”, but remember, you’re not the body that decides these matters. The United States Patent and Trademark Office (USPTO) or the Trademark Trial and Appeal Board (TTAB) might decide differently.Mariam Tsaturyan
Altering Copyright Protected Images
There are some people that believe if you alter a copyright image by a certain percentage so that it is not an exact copy that this will protect you under copyright law.
There is no percentage amount for changing images or other trademark protected content. If someone looking at it might be confuse and think it’s the original work then it’s an infringement.Mariam Tsaturyan
Gifting or Free
The last question I had for Mariam had to do with gifting an image or “free with purchase” deals and how that is looked at under copyright law. I used the specific example of selling someone an item, but then telling them they can pick an image to be added to that item for free.
No, you cannot use a trademark protected image and put it on merchandise that you sell. The image is part of the item which you sell, there is no separating the two. These are “clever” workarounds that many people think they can get away with. However, strictly from the legal perspective, this is a trademark infringement and if discovered, they will be held accountable and fined.Mariam Tsaturyan
Colors and Patterns
Something that cannot be copyrighted are colors and patterns. If you are looking to sell hand crafted items online, look into selling things that are in the colors that represent the trademarked item. For example, I crochet and I have made these blankets which are very similar to the school colors for some popular colleges. I do not have the school name or logo on the blanket, so I am free to sell these.
Additional Copyright Information
If you are looking into selling your hand crafting items on Etsy, make sure to check out the Etsy’s Seller’s Guide to Avoiding Copyright Infringement by fellow blogger Rachel Tveit of CraftingSpree.com.
Here are some additional resources for specific areas of copyright law
I want to thank Mariam Tsaturyan for taking the time to answer all of my questions.