Tabberone is pronounced tab ber won
Hall Of Shame Member
Page Added April 10, 2010
Last Updated August 24, 2011
|UPDATE - August 24, 2011 - You cannot please everyone and we do not try. It seems some anonymous tweaker who uses Rodentman as a posting ID posted some unflattering tidbits about us and our web site.|
|UPDATE - March 16, 2011 - There is a lot of interest being generated by the recent lawsuit filed by Provo Craft against Craft Edge in the Northern District Court in California (Case 11-cv-00297). Click here to read or down load the complaint in PDF format. Provo Craft is alleging that Craft Edge reversed engineered the software for the Cricut, which is illegal. Litigation is expensive and lengthy. That is why settlements are the norm when one does not expect to win.|
On Monday, April 12, 2010, someone began a thread in the Cricut web site on the Cricut message boards titled, "Cricut Angel Policy".
The web link was www.cricut.com/messageboard/tm.aspx?m=6528596. At 08:07:52 on Tuesday, April 13, Provo Craft was on
this web site reading this page. Provo Craft returned at 08:35:59 and at 08:41:36. The message board topic titled "Cricut Angel Policy"
was deleted shortly thereafter.
What does Cricut and Provo Craft fear? The truth? Who are the cowards at Cricut and Provo Crafts that deleted this thread as well as the follow up thread started April 13? Tell us. Why cannot you respond to the allegations instead of being lowly cowards?
Cricut appears to make and sell cutters and such for making a wide variety of things. Cricut also appears to be licensed
to use a number of trademarked images such as Disney, Sesame Street, Hello Kitty, and Nickelodeon characters.
Cricut is located at 151 East 3450 North, Spanish Fork, UT 84660. We sometimes wonder what is in the water in Utah as we have encountered a number of businesses in Utah that simply do not understand what the legal limits are on products. We believe they have the "We Say So" mentality: it is so because we say so.
What is Cricut? The Cricut Personal Electronic Cutter is the latest breakthrough in paper crafting.
Wow. But their "Angel Policy" leaves a lot to be desired. To begin with, there is no legal basis for "Angel Polices" of any type. It is weasel-wording that tries to make it appear that they are granting you permission to do something that you already have the right to do under the law. What it actually does is make the seller appear to be nicer than they really are. Somewhat like the Pope granting dispensation to sinners. It looks nice and is well received but is it really effective?
First, once you purchase the machine, and if you have not signed a contract that limits your use of the machine, whatever limits Cricut claims on the use of the machines is not legally binding on you. And this applies to buying the machine from someone else besides Cricut. The machine is yours to use as you want within the boundaries of the law (i.e., you cannot make something and try to sell it as a licensed product).
Cricut does not have the legal right to tell you what you can and cannot do with products that you have purchased from them. Period. Even if the product is a federally registered copyright, their claims exceed the rights granted under copyright law. Period. They are lying to you. Period. Why are they lying to you? We think they are control freaks. They want to control the market place. Some people do not pay attention to court rulings. However, courts follow past court rulings as precedent, a guide, a ruler, for present day decisions. Supreme Court rulings are very rarely overturned. From a Supreme Court ruling concerning a patent owner who was trying to control the use of his machine after he had sold it:
Patentees ... are entitled to but one royalty for the patented machine, and consequently when a patentee has himself constructed the machine and sold it, or authorized another to construct and sell it, or to construct and use and operate it, and the consideration has been paid to him for the right, he has then to that extent parted with his monopoly, and ceased to have any interest whatever in the machine so sold or so authorized to be constructed and operated.
The Supreme Court recognized a long time ago that once the owner of a machine sold that machine, the owner no longer had the right or lawful authority
to dictate the use of that machine. So from what source does Cricut get the right to tell you what you can and cannot do with product you have
purchased? Not from federal law or the Supreme Court.
Second, cut files, which are nothing more than templates, are not copyrightable. Machine products are useful items and not copyrightable. In a letter dated December 7, 1995, the Register of Copyrights specifically addresses the subject of templates:
Section 101 defines a "useful article" as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." It furthers provides that "the design of a useful article…shall be considered a pictorial, graphic, or sculptural work [subject to copyright protection under section 102] only if, and only to the extent that such design incorporates pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."
|Under copyright law, templates are "useful articles" and are therefore ineligible for copyright protection. And even if these cut files, templates, were eligible for copyright protection, IF cut files were eligible for copyright protection, and they are not, the products made from those cut files would not be covered by the copyright on the cut files. This subject, the copyright covering the item made, was addressed by the US Supreme Court in Baker v Selden, 101 US 99 (1879):|
In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.
|It was well established over 130 years ago that the item made from a copyrighted pattern was not covered by the copyright. As such, the manufacturer has no statutory authority to dictate how a machine or pattern or template can be used by the lawful owner in the absence of a signed contract.|
From Ellison Equioment v AccuCut Systems, 769 F. Supp. 1090 - Dist. Court, D. Nebraska 1991
Third, while Cricut may have a license to manufacture templates from trademarked images, again, without a signed contract, the use of these cut files
falls under the "first sale doctrine." The first sale doctrine
limits the authority of the rights owner to control the use and further distribution of the lawfully acquired product. And there is an implied license to use that accompanies the
purchase of the machine.
Image the Ford Motor Company telling you that you could not custom paint your Mustang nor could you drive it on Saturdays. You would think they had lost their minds. Cricut even appears to want to limit the use of their new cake cutter as well. There are NO federal court cases that we have been able to locate where someone has gone to trial over the issues in the Cricut "Angel Policy". And we read a lot of federal court cases.
Fourth, the use of the cut files using the trademarked images would only be iffy should you misrepresent the source of the product The rights owners have licensed the right to manufacture cut files to Cricut. The cutfiles are not sold with a license because Cricut lacks the authority to further license the images. Cricut cannot lawfully limit the use of the cut files without a signed contract with the purchaser before the sale is made. And, if there were a signed contract, it would not apply to a third party who later purchased a used machine.
As for misrepresentation of the product, we always suggest you use something along the lines of a Tabberone Disclaimer. The use of this disclaimer is no guarantee that they will not bother or threaten you. However, the proper use of this type of disclaimer will minimize or eliminate their legal position should they want to pursue the issue. Remember this, regardless of you legal rights to make and sell items, they can still sue you if they feel like it. Even if they have no real legal basis to sue. Their intent is to get you to settle on their terms because they do not believe you will fight back.
|Cricut is lying to you when it says it can control your use of its products. As is our want, we captured the Cricut "Angel Policy" page for reference as it was on April 10, 2010. We have also duplicated the "Angel Policy" page and highlighted in blue font the passages that we consider to be lies and distortion of the law. We will address those lies and distortions in detail here. The complete paragraph is not always quoted here but is is in the linked pages. Statements are not presented out of context.|
This Angel Policy provides limited permission for certain sales....As we stated above, Angel Polices are garbage. They are feel-good statements that have no legal standing. Usage of a copyrighted item is dictated by law, not by the copyright owner. The ONLY manner allowed by law for a copyright owner to grant privileges that are reserved to the copyright owner under the law is through a signed, written document specifically assigning those rights. The Angel Policy does not grant any rights to the purchaser that the purchaser does not already have.
* Mass ProductionThere is nothing in copyright law that gives the rights owner the authority to limit the use of the product much less set production limits of any type. These numbers are bogus and not enforceable.
Use of Third Party Rights by Provo Craft and its customers, including under this Angel Policy, may be subject to Third Party Rights Restrictions..There is no such thing in the law as "Third Party Rights" being used by the customer. This is more weasel wording that attempts to create the impression that there is a legal basis for the claims to come. License restrictions imposed upon Cricut are between Cricut and the licensing party, which is the third party. Customers cannot be held to a contract between Cricut and Third parties that the customers have not signed. This is a low-brow attempt to circumvent contract law.
* Third Party Rights Restrictions means any use restrictions imposed by Provo Craft's licensors of Third Party Rights,...Again, there is no such thing in the law as "Third Party Rights" being imposed upon the customers without a signed contract. This definition is more garbage.
However, Disney, Sesame Street, Hello Kitty, and Nickelodeon characters and images MAY NOT be reproduced and sold.Wrong. If they are selling the cut files of those images under license from the owners, or the method of producing these cut files, using those cut files to make and then to sell items is perfectly legal under the first sale doctrine and other applicable statutes including implied license. The machines are sold for you to make cut files and then to make items from those cutfiles. The manufacturer, Cricut, cannot lawfully restrict what is done with the cut file after it is made from the machine you lawfully purchased. The licensors, Disney, Sesame Street, Hello Kitty, and Nickelodeon, likewise have no right to prohibit the sales of items made from the licensed cut files. The only important factor for you to remember is when you offer the item for sale you should use a Tabberone Disclaimer or something similar and do not in any way suggest that you are selling a licensed product. You can say the product was made from licensed materials.
Any person who uses Copyright Material or Third Party Rights pursuant to this permission agrees to comply with and be bound by the terms and conditions below and all applicable Third Party Rights Restrictions.This is what the courts call "copyright misuse" where the copyright owner, or the copyright owner's licensee, attempts to extend the scope of the copyright by unilaterally imposing restrictions that go beyond what the law specifically allows. Cricut cannot simply announce that you are bound to any agreement and have that be lawfully enforced.
This Site and all its Contents are intended solely for personal, non-commercial use.That by itself would be alright if Cricut did not turn around and tell people that they are free to download and use graphics and software. You cannot give something away and then impose restrictions upon the use of the material freely given away. Once ownership has been transferred without a signed contract, restrictions on the use of the items are meaningless.
Under Use of this Site
1. All Copyright Materials and Third Party Rights are protected under applicable United States and international copyright, trademark and patent laws, which means that they cannot be copied or incorporated into craftwork items and sold to others without the written permission of Provo Craft or its licensors.Actually, and surprisingly, this statement is factual in its entirety. Our problem is with the impression that it conveys. As we stated above, the exclusive rights of a copyright owner can only be transferred or licensed in writing. This paragraph reiterates our statement. But what this paragraph deliberately ignores is that once the machine has been voluntarily sold to you, by Provo Craft or its licensors, what you make from the machine is no longer covered under the quoted laws and written permission is no longer required. However, you cannot create the impression that you are selling a licensed product. As for patent laws, patent laws give the owner the right to sell the device or the machine but not the right to control the use of that device or machine after it is sold.
2. Any craftwork item to be sold under this Angel Policy must either not incorporate Third Party Rights, or if it does, the sale must comply with all applicable Third Party Rights Restrictions.You cannot do this, but if you do do this, then this is how you do it? Huh? What were they smoking when they wrote this? Again, any restrictions in the license agreement between Cricut and the different licensors, Disney, Sesame Street, Hello Kitty, and Nickelodeon, are not binding upon the purcasher unless there is a signed, written agreement before the sale.
3. ....Personal craftwork items incorporating Copyrighted Material or Third Party Rights cannot be offered or sold at a fixed retail location such as a store or mall kiosk, offered or sold in a store on consignment, offered or sold to other parties for subsequent resale, or offered or sold via the Internet.Why not? If you can sell it, and their flawed Angel Policy "grants" you that right, then why can you not sell it at these places? We understand why. They want to control the market. But they lack the legal right to make this restriction. It is a foolish statement mad made foolish little minds.
4. Mass Production of craft items incorporating Copyright Material or Third Party Rights is strictly prohibited.As stated above, this statement is redundant and unenforceable.
5. Except as provided in Section 7 below, no person may use, and this Angel Policy does not permit use of the Provo Craft name....Wrong. It is perfectly permissible under the law to make a factual statement concerning the origin of the item being sold. Stating that the item was made from a Cricut machine is acceptable regardless of claims by Cricut to the contrary. As such, see Bumble Bee Seafoods, L.L.C. v. UFS Indus. Inc., 71 USPQ2d 1684 (S.D.N.Y. 2004). The court denied Bumble Bee Seafoods' motion for a preliminary injunction against a third party using the phrase "made with Bumble Bee Tuna" on its tuna salad when in fact that statement was true. The court noted that Bumble Bee Seafoods had no right to assert quality control over the composite product, even if the composite product was of an overall lower quality than the component.
Paragraph 6 actually makes sense. You cannot incorporate trademarks or copyrighted material into your logo, trademark, etc. They got one right. How about them apples?
7. Wherever possible, each craftwork item that incorporates any Copyright Material must be conspicuously marked with the notice "Includes Copyright Material of Provo Craft and Novelty, Inc." in a reasonable size and location on such items, or on tags or labels for such items.First they tell that you cannot do it and then they tell how to do it. Hmmmm. Unless you have a licensing agreement with Circut, you do not have to follow these instructions. Another attempt to control you.
8. Copyright Material may not be altered in any manner, including without limitation, masking or overlaying portions of a design or image, removing copyright notices, or the like. Any such alteration will be considered an infringement of copyright. Provo Craft expressly reserves all moral rights in its Copyrighted Material.First, Cricut does not get to decide what is copyright infringement. Copyright infringement is defined by law. Cricut lacks the statutory authority to make its own laws. Utah residents or not. Second, once you are given the item to use, it is yours. You may alter it when you use it. What you may not do is to then copy it and try to sell it as YOUR creation. Copyright notices are no longer required so removing one does nothing to the copyright. And since you have been given the item it is yours to use as you see fit. The expression Moral Rights does not appear in US Copyright Law and is not part of copyright law in the US.
9. ....Upon termination, all copying, sales, distribution, advertising and marketing of any of craft items incorporating Copyright Material shall immediately cease.Unless you have signed a contract with Cricut, they cannot arbitrarily terminate the rights to use machines you have purchased or material they have given you. Additionally, what they are "granting" is called an implied non-exclusive license. An implied non-exclusive license cannot be unilaterally revoked if consideration, i.e., payment of any type, is received for this license. See Avtec Sys., Inc. v. Peiffer, 21 F.3d 568, 574 n. 12 (4th Cir.1994), ("An implied license is revocable, however, where no consideration has been given for the license.") A non-exclusive license grants rights to do something that would otherwise be infringing. Since Cricut is granting rights that the purchaser already has under the law, the Angel Policy is bogus.
12. The laws of the State of Utah govern this Angel Policy. The state and federal courts of Utah will have exclusive jurisdiction over any proceeding arising from this policy. ....Making a statement of this nature is not binding upon anyone without agreement by you. The law dictates jurisdiction and without consent to their location this is not binding. If a court case arose they would attempt to have it quashed if it was not in Utah. The purpose of this statement is to make you believe that you would have to travel to Utah in order to get relief when in fact you do not.
The claims made by Cricut and Prove Craft are somewhat like a parent who tells a child not to go to sleep with gum in their mouths. The parents lie to their children to get the behavior they want. These companies lie to you to get the behavior they seek. That is, that you spend more money on their products.
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.
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