Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!

Tabberone Logo
The latest Hartsel weather.

  "The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

Tabberone.com does not accept any advertising or contributions nor does Tabberone.com use cookies of any type.
It is our aim to have web pages load quickly and cleanly so the layout is kept simple.


Indie Law, LLC
and Joey Cesare Vitale, Esq
Fabric Crash Course
Page Added February 22, 2018

Last updated - February 27, 2018


Joey Vitale's on-line tripe titled "Fabric Crash Course" began at 1900 central time, September 18, 2017. What follows is a trascript of his poorly-planned and annoying on-line chat.We have inserted time stamps to track the progress of the "course". We use the time stamps somewhat as a page break and we added puctuation where it seemed appropriate. Our comments have a gray background color. We haved attempted to accurately transcribe this rambling discourse. Omissions and errors are not intentional.

This "course" should have been titled, "Joey Vitale's Licensed Fabric Crash & Burn Course."

It is difficult to critique this rambling, unstructured disertation without referring to Joey Vitale as a moron. You decide. He sounds like a moron to us. For any lawyers who want to claim this transcript is copyright infringment, we refer them to §107 Limitations on Exclusive Rights: Fair Use:

  1. the purpose and character of this use is non-profit and strictly commentary .
  2. the nature of the copyrighted work was an ill-conceived, innacurate and badly-excuted pseudo-legal info-blog,
  3. to demonstrate how bad the work was the entire work is included, no one would believe us otherwise
  4. the potential market for the work is nil since it was quickly pulled from the web site and it is a long-gone video
We will be commenting when appropriate. Joey, have you ever heard of a lesson plan? Based upon this "course", we think not. We believe, supported by statements made by Joey, that this "blog" was a thinly disguised attempt to attract business using the deception of "information". Unlike Joey, we cite court cases whereas he cannot because he has none. We quote the US Supreme Court as well as the Seventh Circuit, the circuit in which Joey practices and decisions with which he should be familiar, but, alas, is not..

We have attempted to recreate his words accurately. It was not easy listening to him repeatedly. We could have taken excerpts from the "crash course" but you would never have believed from excerpts how bad it was. You would have thought we were fabricating how poorly this "legal advice" really was. Quoting him out of context, etc.

Twenty-five minutes into this Joey actually says, "First of all, legal defense is scary because that means you are saying yes I did something wrong but here's an excuse." That is dumb-speak from a lawyer who does not know his business. You just cannot make this stuff up.


Let The BLOG begin


Get into it

Um, let me pull up my slides here and hide this and, so yeah, so weíre going to, um, weíre going to be talking about fabrics and IP law. My face is going in and out of this thing. Um, Debbie, if you canít hear me go ahead and leave facebook and you should be able to hear me. This is so, so exciting. Um, lets talk about it. So hereís the deal, fabrics are one of the most confusing areas of being a maker right now in terms of [?] space. There is a lot of conflicting information online, thereís a lot of people that donít understand, you know if you go to the fabric store and you buy stuff and you get this fabric with a label on it and you donít know if you can use that and resell it or not. Thereís a lot of of things out there that are saying conflicting information and weíre going to get to the bottom of it..

But before we start you have to understand that this is a very complicated area of the law. Again Iím seeing some of you guys canít hear something, go ahead if youíre watching this live on facebook leave and come back.

Go ahead, X out completely of the browser and come back. So I wanted to start with one of the um, one of phrases that people hate the most, um, when it comes to talking with an attorney. If you guys have ever talked to an attorney and you asked a question and you got the response it depends let me know in the comments. Um, this is something that attorneys love saying and frankly itís pretty accurate to be told. Um, and so the reality is there is a lot of gray areas in the law. And if you really look across the board, um, there is a reason why people went to law school, there is a reason why you know judges exist. A lot of gray area. So the goal of this crash course is to almost take a magnifying glass to this issue of fabrics and, um, and make sure that you know that its not just gray but there's darker spots and lighter spots, ok? And so the point of this crash course really is to see the finer areas, um, in this topic and see what points are darker what points are lighter because yes, whether or not you can use licensed fabric it does depend. But weíre going to give you guys a lot of context so you have more, um, confidence in how youíre using licensed fabric. Cool? Alright.

(time stamp 3:02 minutes)

In Joey's first three minutes he managed to say "um" eleven times without actually saying much else. What he should have started with is that licensed fabric is fabric licensed by the rights owner to be manufactured by some fabric printer, such as Springs Industries. The use of the fabric is not licensed. Virtually all fabric with a design on it is licensed to be manufactured. There is no gray area concerning licensed fabrics. The copyright owner cannot impose use restrictions upon the purchaser without written consent from the purchaser. §107 Limitations on Exclusive Rights: Fair Use:


Alyssa says, "Got it". Thanks Alyssa.

Next thing, and you guys if nothing else, this is the take away which is that when you're in this area of the law you are really dancing in a gray area. And as a lot of attorneys will tell you it's not worth usually having a dance in a gray area of the law. Because you don't want to get on the wrong side of Disney or the NFL and it might have been Will Farrell who said it best, um, when he said, "Don't wake the snake", in his little skit with, um, Jimmy Fallon. If any of you guys know the reference let me know in the comments. Um, but you don't. There's a lot of risk when you when you use this licensed fabric and you resell it and we'll get into that all of that in just a bit but these are just some expectations. Now I've gone back and forth on this.

Um, Denise says that now she can hear that she's on her computer. Thanks Denise. Um, here's the thing, we've talked, I've gone back and forth on this a lot and I've decided I'm not going to go over any court cases today and there's a very specific reason why that's the case and that's because there's only a couple of, yes, tight pants. Exactly. Tthat was the (laughing), that was that was the skit with Jimmy Fallon and Will Farrell but I'm not bringing up any courses [sic] today because, um, because, um there are only a couple of courses [sic] that touch on this and frankly none of them worth are authoritative. Thereís one out of Puerto Rico there are there are a couple in some circuits.

But I want to tell you guys a little story. It was one of my first research assignments as a new attorney, um, my reviewing attorney said I need you to find a case that says this, um, let me know when you find it. Attorneys have our own version of a google database search through all of this case law I found a case that said what he wanted and I showed it to him and he said, "Joey, sit down". And he said this case is not in our jurisdiction and at most, if if nothing else, we can show it and maybe it can make a judge say yeah, weíll go ahead with that one. But unless something is in your circuit, or the US Supreme Court, those cases just arenít really authoritative and they can kinda help you figure out certain areas of the law and things like that but I think that it would probably be more confusing then helpful. The other thing too is that pretty much every single fact(?) scenario that you will ever confront will be slightly different then a case that youíve read. Which means that thereís always some type of application of the courts holding to your specific facts which might be different. And again it goes back to dancing in that gray area of the law that you donít want to be in. Those expectations being out there.

Real quick, wanted to talk about Indie law and myself. Iím back again you guys. Um, again my law firm's name is Indie Law and we work with independent and creative small businesses. The point of what we do is we work with thriving professional small businesses, um, and figure out where, um, what parts of their business they havenít yet put a legal foundation around. And we we [sic] focus on that. And one of the biggest questions wewe get is this area of licensed fabrics and, um, my name is Joey Vitalie. Iím an attorney I specialize in working with creative small businesses. We do a lot of copyright, trademark registration, LLC formations, contract drafting

Thanks for the heart, Katalyn, and for all of the hellos, um, weíve....

Wendy says sheís here and curious on our thoughts on the matter just about to get started into the meat of things. Um, and letís get into it.

(time stamp 7:26 minutes)

Who cares about Jimmy Fallon and Will Farrell and some skit Joey cannot reference? The subject matter here is licensed fabric and IP law. Joey seems to be easily distracted by ....oh look, a squirrel!

What is this "dancing in the gray area" crap? He repeats it several times. Informative blogs should not be using trite expressions. And there is no gray area based upon Joey Vitale's subsequent statements concerning the use of licensed fabrics. He says you cannot do it and he is dead wrong.

There are only a few cases that touch on the subject of using licensed fabric because it has been a long settled issue. The limitation on a copyright owner trying to control the use of a lawfully acquired product was settled by the US Supreme Court in 1908, Bobbs-Merril v Straus, 210 US 339 (1908). In Bobbs-Merril v Straus: the Supreme Court rejected a copyright owner's attempted limitation on re-selling a product. The Court, "held that the exclusive statutory right to vend [sell] applied only to the first sale of the copyrighted work..." That remains unchanged for some 110 years. Click here for the Supreme Court's defining opinion on Bobbs-Merril v Straus: Click here for the full Supreme Court's opinion on Bobbs-Merril v Straus:

In Scarves By Vera, Inc. v. American Handbags, 188 F.Supp. 255 (1960 2nd Circuit), the court upheld the right to use branded merchandise to make products to sell.. The court did require the defendent to sew disclaimer tags into the handbags. Click here for the full opinion.

In Precious Moments vs La Infantil, 1997, (D.P.R.) 971 F.Supp. 66, the court stated making licensed fabric into a finished product for sale was not a derivative work under copyright law. The court also stated that a disclaimer was effective in preventing consumer confusion and ordered the attached disclaimer to be more informative.

And he's wrong about the jurisdiction issue. Courts often cite cases from other jurisdictions in their opinions to show continuity between the various circuits.


So before we go disclaimer you guys, none of this is legal advice. I'm not your attorney yet. This is all just legal information, I'm just trying to give you guys a good over [sic] so that you have more context on what's going on here.

Mandy says, "Got it". Awesome. So why does this matter? Violating intellectual property is a very serious problem. Um, like I said earlier there's a lot of conflicting information online and there's not really any clear case president [sic] and so because of that a lot of ambiguity right now. And, and the goal again of this crash course, which hopefully we keep to around only an hour or so, is going to get you guys understanding why we have the position that we do which is that you should steer clear of reselling licensed fabrics.

So here's the topics of discussion as kinda of kinda [sic] like an umbrella, um, we're gonna talk. Let me see if I can show my face here. Cool. We're going to talk about copyrights, we're (laughing).... Lisa, but Lisa Marie says if it's on the internet it must be true. I love it. Um, again, if you guys are hopping on here having problems with the volume if you can't hear me.

I know it's hard for me to say if you can't hear me but in the comments, please guys, help me out by letting people know they can just hop off and back in and that should help.

So we're going to talk about copyrights, trademarks and you might not have thought about this but we're going to be talking about contracts as well. Because that really is where a lot of the confusion comes from. We're going to talk about this for personal use only label and how enforceable that really is and if that is really the question you should be caring about.

Weíre also going to be talking about how licensed fabrics works. These two cool things that are very, very legally loaded terms the First Sale Doctrine and Derivative Works. And then weíre going to talk about next steps after that so, what is a copyright?

(time stamp 9:25 minutes)

So, for two minutes, Joey was distracted and said nothing. Wow! What a speaker. His speaking ability is only out done by his lack of knowledge on the subject.

"I'm not your attorney yet". An indication this "crash course" is designed to garner clients. Based upon his inept and flawed knowledge of the subject at hand, anyone who uses him for additional legal advice would appear to be wasting their money.


We're going to start with kinda defining copyright because really most of these licensed fabrics issues have to deal with copyright and again this is US Copyright Law and it protects original works of authorship, um, including literary, dramatic musical artistic and other intellectual works. Sounds like it's a pretty easy definition and, um, understanding what a copyright is is a relatively straightforward but just to give you guys some examples here. Um, you can copyright something like literary work, visual artwork, a photograph, digital content, designs on fabric. You cannot copyright things like a business name, ingredients in a recipe, certain phrases or useful articles. And we'll get into what that means in just a bit.

(time stamp 11:09 minutes)

Wow. For 43 seconds Joey actually got something reasonably correct. That won't last. .


So, can you copyright clothing? No, you can't. Um, in the fashion industry there's there's, um, due to a recent Supreme Court case, there's a little bit more intellectual property protection that is now made explicit but there's not a whole lot intellectual property protection in the fashion industry and the reason why is our courts have decided apparel is too utilitarian, which means useful, um, meaning the main purpose of clothing is to, you know, to cover naked bodies. And so clothes are more useful articles, um.

Tracy asks is if this is similar to Australian IP law, Tracy I can't speak to Australian law, um, but if you are selling to US customers then this will apply to you. Um, so copyright does not go attach to the the fabric itself. But designs and patterns can get copyright protection. You guys following me so far? Um, go ahead and put "got it" in the comments if I'm making sense. If you have questions let me know, that's why we're doing it this way. So I'll pop back up again.

So again, you want to respect copyrights and trademarks because, um, violate any registered intellectual property it costs a lot of money. Um, and and [sic] in terms of lots of "got its". Thanks Jennifer, thanks Lisa, thanks Sherry. Ok I'm feeling pretty good about this, so you guys the big difference between trademarks and copyrights is that trademarks protect branding think like Apple or Kodak, Target or Starbucks. Um, and and [sic] copyrights protect that artistic expression and so the design on a fabric. That's a "got it". Sweet, so again again [sic] trademarks protect branding, copyright protects our artistic expression.

Now here's the big question, right? If a fabric has a label that says for "personal use only" for "noncommercial home use only" does that really mean that you can only use it for personal use? And and that's really the the main question that people have and why this issue is really confusing. And it's a really complicated question. We say yes, um, let's see just checking on some comments here and (question name) says I think it needs to be clarified that by using the word patterns it's not clothing patterns, purses patterns etc different ? pattern designs on fabric, um ? I'm a little confused by the question but basically anything that is on fabric that can be considered a a pattern or like a like a, um, cartoon or one of the big examples here is like Disney characters. Um, so whether it's a type of pattern you registered, um, with the copyright office, um, like a type of drawing or something or artwork that you then put in the fabric we'll get into what this is in just a little bit. Um, but I think this will all kinda of clarify itself by the end of the crash course if you still have questions let me know.

(time stamp 13:50 minutes)

Here's where Joey begins to stumble and starts his long fall.. In para:1, his reference to the fashion industry is a distraction and is off subject.

In para;3 above he neglects to state that for a copyright to be registered in a design on fabric, that design must be somewhat original. A random placing of geometric designs and such have been held to not qualify for copyright protection. And copyright registration is important because without a federal copyright registration the copyright owner has almost no chance of prevailing in federal court. Fabric designs containing trademarks, such as NFL team logos, are protected under trademark law.

In para;4 above Joey toys with covering the wording on fabric selvedge but then he drops it for now. Why? A properly presented "course" would go into the subject matter systematically without sporatically tossing the subject matter out like chum to bring the fish in.


So again we're going to talk about licensed fabric and we're going to do it in this order, trademarks and then contracts and then copyrights. Alright lets dig into it. So licensed fabrics and trademarks is by far the most straight forward of all of this you guys. So it's pretty black and white, um, if if there is a trademark that is on the fabric and you use it. So, I'm not a very big like fashion guy, um, but, um, I'm striving right now to think of a like a fashion brand. But lets say there's a big fashion logo [sic] that puts their logo on a piece of fabric and then you use that and make something out of it. Um, if you do that you're using their trademark and you're putting it on your own stuff and that's pretty black and white trademark infringement.

No, no, no. Fashion houses, such as Louis Vuitton, do not put their logos on fabric being sold to the general public. Their fabric is exclusively for the manufacture of their products. Anyone selling that fabric has acquired the fabric illegally.

It is not trademark infringement to use lawfully acquired fabric with corporate logos or corporate images to make items. Cutting the fabric to make things is not a material alteration, nor is it a transformation. Cutting fabric to make things is the original intent of anyone designing and manufacturing fabric for sale.

Um, and there's two real legal justifications for that. One is there is a likelihood of brand confusion where people see that and they think that they're buying from that source but they're actually buying from you. And second there's this appearance of an endorsement. Um, and so sometimes if you have what's called a license for a trademark then, um, then that lets you.....

Um sorry. I get a little confused when I'm trying to see the, um, the comments coming through. Um, man, you guys have a lot of comments. Louis Vuitton, thank you. So if Louis Vuitton comes through that could give the appearance of an endorsement if you do not have the license. Um, Caroline Garcia, "Forget fashion brand. Can I use NFL licensed fabric that I purchased to make quilts for guests for sale?"

And that goes into this trademark question. If you're using an NFL logo that is registered as a trademark that is pretty black and white, um, infringement here because we have a brand confusion and the appearance of endorsement. Um, and we're going to get into, um, once we address contracts. I think that this makes sense as well. You guys I'm loving the comments going through. You're sending a lot and so if I miss yours my apologies.

A likelihood of confusion is not generated by the use of fabric containing, in this case, NFL logos. Under the Lanham Act, which is US Trademark Law, the infringer must do something to create the likelihood of confusion. That something is to misrepresent the product. That is why we suggest a crafter use a disclaimer, especially a Tabberone Disclaimer.

Lets move on. So licensed fabric and contracts what is going on here. And you guys I'm trying to um, um, paint this in as simple a picture as possible. So, I'm seeing questions come in about the license and we're getting here right now. And so here here [sic] are the main parties to a typical scenario like you've got the the [sic] um, designer, the manufacturer, the crafter and the end user. So you've got the designer who decided to come up with the fabric and they own the rights to it And they sell those rights to the manufacturer who manufacturers it. And the crafter picks that up at the fabric store and then you sell it to the end user. Here's the contract piece of it. So, typically when a designer sells something to a manufacturer there's a contract. And that contract usually includes some type of intellectual property license that says you know we're selling this to you and we are the original holders of this copyright and we're giving you a limited license to sell this. Um, but only you know we want to make sure you know who we're letting sell this, we are endorsing, so and the question is does that license apply to the crafter.

Um, let me look through the comments real quick. Um, to to to [sic], lots of comments coming in you guys. I'm trying to read them. I'm going to I'm going to get to them at the end and I'm also go through the comments during or after the video and respond to the ones I can.

So again the real question here is does this license ok part of this contract between the designer and the manufacturer, does that extend to the crafter and bound by it. And it's interesting because there are really two areas of thought by that. And I've actually researched and reached out to several attorneys about this. There's frankly a split here. So argument number 1 is that, um, that that license is binding on the crafter. Argument number 2 is is that there is no license. And let's go into argument 1 and what that means, ok? So argument 1 says that the manufacturer purchased the fabric receives that license to sell for personal use only. And that the end user, the end user [sic] uses that fabric for resell it's a violation of the underlying contract and that tag of for personal use only puts you the crafter on notice that youíre legally bound by that original vendors limitation, that original designers limitations.

Joey, Joey, Joey. Did you sleep through contract law? A contract is not valid unless all parties affected by that contract are in agreement to the terms and have noted that agreement. A contract between the designer and the manufacturer cannot be legally binding on any party that has not agreed to that contract. It does not carry over to the crafter. That is a basic tenent.

Joey, bulk fabric is not sold with a "tag". The "personal use only" is printed on the selvedge, or edge, of the fabric. Don't you think that in all of these years there would be a feceral court case or two stating that a purchaser is bound by limitations printed on the product? Pal Joey, there is one Supreme Court case from 1908 which specifically states that such limitations are unlawful.

See again Bobbs-Merril v Straus: where the Supreme Court rejected a copyright owner's attempted limitation on re-selling a product. The Court, "held that the exclusive statutory right to vend [sell] applied only to the first sale of the copyrighted work..."

Ok so thatís one way of thinking about this. And there are a lot of attorneys that, um, especially ones who, um, just kind of understand contract law and are really well versed in it that say this is correct.

Joey, give us their names so we can avoid ever using them. They slept through contract law like you did. Or they cut class.

And then the second way is pretty much the complete opposite seems like which says the tag is completely meaningless. And that when you purchase a product youíre not bound by a prior license and even without that language youíd be able to use the fabric for personal use. Regardless of the label, though, reselling would be a copyright or trademark violation. Basically what they are saying is that the the [sic] license and that tag is completely meaningless. But if you take a closer look at these two seemingly opposing view points for one I have to point out that argument #1 is in more favor although there are some some attorneys out there who would, um, tend to specialize in this and really feel strongly in argument #2. The reason why I am saying, putting them both out there is you get the same result. Do you guys see that?

What? Joey, you again contradicted yourself, this time in one paragraph. Argument #1 and argument #2 are complete opposites. It is obvious you did not prepare a lesson outline for this and are just yammering, supporting your personal preferences concerning the application of the law.

So whether this ďfor personal use onlyĒ is actually something that is ,um, um,..... again Iím reading comments (some weird sound) and losing my train of thought here. But whether or not that license means something or not goes back to the fact that there is a whole point of it is theyíre trying to to enforce these copyright protections and the copyright or whether the contract binds it or not whether there is.

Elizabeth Barnes, "What if there is no limitation on the tag?" Um, really what I want you guys to take away from this is whether there is a tag ďfor personal use onlyĒ or not, the underlying question is do you have permission to to use this original work that, um, has intellectual property rights protections whether thatís trademark or copyrights and I know there are a lot of follow up questions, um, but I wanted to make sure we both understand this.

(time stamp 22:08 minutes)

After some 22 minutes of reversals, contradications and flat out bad legal advice, Joey has virtually said nothing of substance that was accurate.

In Bobbs-Merril v Straus: the Supreme Court rejected a copyright owner's attempted limitation on re-selling a product. The Court, "held that the exclusive statutory right to vend [sell] applied only to the first sale of the copyrighted work..."

While this decision concerned printed limitations in a book, the principle still applies to all copyrighted works. A copyright owner cannot limit subsequent use of the copyrighted work by simply printing something on the copyrighted work. Contrary to what joey Vitale claims, a court decision need not be specific to licensed fabric to be lawfully binding. It is the principle not the specific item reference that applies.

Joey, there are Supreme Court cases out there that apply to this subject but it appears you either did not read them or you ignored them because they did not fit your view of the subject. Bad lawyering.


Ok, so now let's move onto licensed fabric and copyrights. Ok, so here here is is where it gets, um, you know, probably where a lot of you have looked into it have probably seen this before which is that a copyright you're not violating a copyright, um, if the First Sale Doctrine applies. Um, let me look through the comments real quick. "Does this mean you can't use any fabrics to make items to resell" Denise, it's a good question. Um, basically it's it's [sic] tough. Um, you want to work ideally with, um, some type of fabric provider that, um, that explicitly gives, um, resell permissions or that doesn't or that's there's no inherent intellectual property right protection in the fabric itself.

And those are very fact intensive things but again let's go back to this this is the main thing you can resell. Um, there is this legal exception of the First Sale Doctrine allows you to kind of get over this hurdle of intellectual property protections. But what is the First Sale Doctrine? Um, and I'll get out of the way here. If you purchase a legal copy of the copyrighted work you can do whatever you want with the copy as long as the copyright owners exclusive copyright rights are not infringed. And I'm getting some some things in the comments, um, here so let me know if this makes sense you guys. This idea of the First Sale Doctrine and the fact that it's a legal defense, um, to copyright ownership. Give me a "got it" in the comments if you understand that.

(time stamp 25:39 minutes)

¶ :2 is badly stated but fairly accurate in a contorted way. The First Sale Doctrine is an exception to the exclusive rights of the copyright owner. It's not a "legal defense, um, to copyright ownership" but rather defines the rights of the lawful owner of a copy of the copyright.


And then moving on. Of course itís got to get more complicated than that because thereís an exception to the exception. And that exception to the exception is a derivative work. And hereís what a derivative work is, itís something thatís based on one of our preexisting works it can be recast, transformed, or adapted. And, and basically what this means, um, basically what this means you guys is, um,...... Iím getting a lot of ďgot itĒ and ďI donít understandĒ in the comments. Let me, let me um get rid of the text and talk to you.

So, so you buy a fabric ok and you decide to resell it and you want to argue the First Sale Doctrine. The First Sale Doctrine totally allows you to buy something and sell it. But because of the derivative work exception the First Sale Doctrine only protects you if you sell it or if buy it and sell it as is. So if you buy the sheet of fabric and sell the sheet of fabric, thatís the First Sale Doctrine. But the derivative work exception means that when you buy that fabric and turn it into something and you transform it into something else thatís not the sheet of fabric then you can no longer hide behind the that [sic] First Sale Doctrine. And it gets complicated, ok, because how much transforming does it take for it to be derivative work is a fact intensive question. Um, yeah, this is exactly right. Buy the fat quarter and sell it as a fat quarter: thatís the First Sale Doctrine. And so again the derivative work exception takes a lot of air out of it.

In Precious Moments vs La Infantil, 1997, (D.P.R.) 971 F.Supp. 66, the court stated making licensed fabric into a finished product for sale was not a derivative work under copyright law.

The definition of a derivative work, : as quoted by the Seventh Circuit Court of Appeals, your circuit, Pal Joey.

Assuming the fabric is lawfully acquired, The First Sale Doctrine allows one to re-sell the fabric notwithstanding a derivative or a material alteration. By definition, it would be almost impossible to create a derivative by re-casting or transforming fabric. The fabric is not the issue but rather the design on the fabric. To qualify, the fabric design would have to be transformed, not the fabric itself. Duh-h-h.

In Lee v. ART Co., 125 F. 3d 580 - Court of Appeals, 7th Circuit 1997, the court stated that "An alteration [to the copyrighted work] that includes (or consumes) a complete copy of the original lacks economic significance."

Cutting the fabric up into sections and selling it would consume the original purchase. Cutting the fabric up and making it into items to sell likewise would consume the work. The copyright owner is not reprived of any rights.

The designer and the manufacturer do not know how many yards of fabric was purchased. Cutting a 12-yard bolt into twelve one-yard pieces and selling could not possibly be monitored and is not infringement. Cutting the fabric, which is the purpose of the fabric, and/or sewing it into items, also the purpose of fabric, does not alter the design on the fabric. Ergo, it is not infringment. The First Sale Doctrine protects this use of fabric.

In addition, and a point omitted by Joey Vitale, for a "work" to be considered a derivative under copyright law, the change to the work "as a whole" must be sufficiently original to support a copyright.
Lee v. ART Co., 125 F. 3d 580 - Court of Appeals, 7th Circuit 1997

Cutting fabric into sections would not qualify for copyright nor would making items from the fabric qualify for copyright.

Let me go back to the slides here. So, recapping what I said. The First Sale Doctrine does not extend to derivative works. And because of that the First Sale Doctrine does not allow you to use that fabric to make a derivative work without a license even if you could resell the fabric itself. Iím getting some questions about implied licenses. And thatís a really really tough question to answer. Um, but I want to want to give you guys again the big general framework of how these laws all interact with each other. So here are the main takeaways so far ok?

"...even if you could re-sell the fabric yourself". Again, you can resell the fabric itself. We resold thousands of yards of licensed fabrics all over the world before the 2008 crash. And only Sykel complained and they never followed through on their threats of litigation.

Trademark is brand confusion you have to worry about that endorsement and because of that trademarks are the most black and white area you donít want to infringe on, um, licensed fabric. When it comes to contracts it seems like that be the end all because a lot of people see that, um, you know, ďfor personal use onlyĒ and and [sic] there is a line of thought that says that that is binding. Um, but whether thatís binding or not the reason why thatís usually written into the contract is because the original vendor wants to retain some of their intellectual property rights. At the end of the day you guys the best thing to do here is if youíre unsure is is reach out to, um, the a fabric manufacturer or a fabric vendor directly and say hey, I want to use it this way is that cool? And get written permission back. I actually had a client who recently did this and and [sic]they said great question we get this quite a bit and we allow it maybe they have certain limitations. Um, but if they allow you guys then they allow it. The main thing here going back to what Iíve put in bold here you donít want to dance in that gray area of the law.

(time stamp 25:39 minutes)

There you go again, Joey. The line of thought that believes "for personal use only" is binding is off their tracks. We have already established The Supreme Court in 1908 disallowed that.

The "original vendor" does not retain intellectual property rignts over the use of their product once it is sold. Also, a fabric manufacturer cannot grant rights to fabric they have sold. Those rights belong to the designer. Designers are not going to give you permission but they do not have to grant permission. The buyer already has permission.

There's that "dance in the gray area" again. ARRRGH.


Going back to copyright. The First Sale Doctrine, derivative work, I know it's super complicated a lot of people think oh the First Sale Doctrine applies I can use that as a legal defense. First of all legal defense is scary because that means you are saying yes I did something wrong but here's an excuse. And whenever you get to that point that means you're already in court someone is already attacking you. And so that's already a bad place to be in.

"[Y]es I did something wrong but here's an excuse". What? The First Sale Doctrine is not an excuse but rather an exception to the statutory rights retained by the rights owner. The user has not done anything wrong. Joey, I wish I could say this is the end of the stupidity, but alas, it is not. Stuck on stupid.

The "excuse" referenced is called an affirmative defense and as such is defined in copyright law, among others. The affirmative defense limits the "rights" of the copyright owner. Those "rights" are not absolute and they are strictly defined in the copyright statutes.

So Stella great point. Um, so she asks, "So you contact the manufacturer not the image owner?" You can do honest either Stella. I mean ideally you'd be able to reach the image owner but you might be able to contact the manufacturer and say do you have an understanding of how this can used or in a certain way. Amy Warren asks, "For all practical purposes do any fabric designers actually go after crafters for creating items with fabrics that don't have things like sports teams, Disney, etc.?" And, Amy, yes. Um, Disney has done this,

Contacting the manufacturer would be an absolute waste of time because only the copyright owner could grant use, if permission was required, which it is not.

Here goes the stupidity full throttle. Disney does not, and has not, gone after crafters in federal court. Reference our law suit against Disney on December 24, 2002, in which we represented ourselves as the plaintiffs. Disney settled in our favor. Does that sound like a company who aggressively goes after crafters? And the story about Disney seizing a poor woman's sewing machine and all of her assets is an urban myth. It never happened.

Iíve heard of several law suits. The problem here you guys and let me go back to, um, my view here and Iíll, um, thanks Amy for the comment but Iíll pop you out there. The problem here is this is a very kind of Indie creative issue. What that means is ah, that a lot of you guys, um, if if if (sic) Disney ever slapped your hand frankly you wouldnít have the money or the capacity to fight it. And so realistically a lot of these donít even get to court and the ones that do usually settle really early. And so thatís why there is really no case precedent here. Um, but the main takeaway is that when you when you start to buy into this area of licensed fabrics youíre entering into a gray area of the law. Donít want to dance there.

Joey claims to have heard of several lawsuits but it seems you did not take the time to read them. Disney slapped our hand and we slapped back. True, many cases get settled. As in our case, Disney, Major League Baseball, Sanrio (Hello Kitty fabric) and United Media (Peanuts fabric), all preferred to settle rather than fight the issue when we sued them. Billion-dollar companies settled rather than fight two pro se litigants because the use of licensed fabric to make and sell items is settled law and is valid as long as the buying public is not deceived.

Several times Joey asserts, inaccurately, that there are no court cases that say you can use licensed fabrics while avoiding the 800-pound gorilla in the room - he fails to cite any courts cases that say you cannot use licensed fabrics. Why? There are none.

Amy says so basically you're saying donít sell anything you make from fabric you bought. Now thatís not necessarily true Amy there are fabrics that you can buy um either you can get express permission, um, there might be tags that say for commercial use. And Jennifer has a good point so the the real thing here you guys to be extra extra careful. Um, because whether or not that original vendor has intellectual property rights or they claim to. Um, itís just something that I donít want any of you guys to fall into a trap, um, of using it and then then the reality you guys especially if you are on Etsy or something all it takes is maybe one or two more people to report some type of infringement on your site whether whether youíre right, whether theyíre right or not the fact that you have an additional strike against your account means that your item might get shut down your entire store might get shut down so is that really worth the risk.

(time stamp 32:47 minutes)

"[T]here might be tags that say for commercial use." That "tags" thing again. It is not "tag" but rather printing on the selvedge. Take time to learn your subject, Joey. There is no printing that says "for commercial use" because all fabric can be used commercially.

Violation reporting on etsy is a joke, just like eBay's reporting rules.


Misty brings up a great point. Ask why are customers buying your product. Is it because of your work or is because of the design is it because of Disney whoever, and Misty that's a great point because you don't want to lean on the intellectual property of this fabric. If you're buying it because you know that Beauty and the Beast pajamas are going to sell really well that's not a good probably thing to go forward with. But if but if you're really using your creativity um to use this fabric in some way um then then I know that that makes it a little clearer for you. Um, and (someone) brings up a good point too. There are many companies that retain rights that do not actively enforce them. The main point of me hopping on here you guys was because I was seeing a lot of inaccuracies around the idea of the First Sale Doctrine of derivative works of how binding this this [sic] for personal use only label is and whether or not it is binding and so I wanted to point out if all those legal things in context and I wanted to say it's not enough to rely on a case here. Unless it's a really high circuit level case or a Supreme US Supreme Court case that definitely says one way or another. I don't think we're going to get there anytime soon just because of the fact that this is a smaller business type of issue that usually does not make it's way up federal court.

What a crock! Workmanship and the fabric design are important. No one buys something without being impressed by the fabric design. You cannot logically separate one aspect from the other.

Back to the rambling contradictions again. He harps on the First Sale Doctrine and derivative works which are not relevant to this "course" the way he presents them. Companies cannot "retain" rights in copyright that belong to the purchaser without the written consent of the purchaser. Copyright law requires any transfer of rights requires written consent.

As we have shown earlier, the issue of a copyright owner retaining rights by declaration was rejected by the US Supreme Court in 1908.

Linda, great question. She says this is a little off topic, "Can you address all the people who use sports team logos [??] mugs or whatever for sale?" So, yes there are a lot of people who are kind of flying in the face of what I've been talking about. And who are selling this stuff. And yes there are people who are getting away with it. But there are also people who are not. And I know that my buddy Kate Brockmyer is watching this video and something that that she has taught me, um, that I've learned from other businesses is that if you guys make the decision to go from a hobbyist or, um, or something who just enjoys doing it to actually turning a business out of it one of the things you do not want to do is put your business in jeopardy of of [sic] being sustainable. When you make that decision to to use sports team logos without a license or Disney,

Harry Potter characters, whatever on the mug, youíre creating a likelihood and a risk that that could shut things down. And so if youíre going to move forward on the direction of I want this business to be self sustaining and not to lean on the success of other businesses you have to dig deep and think about that real value of what your business is providing and how itís unique from the types of fabrics and stuff that youíre asking.

(time stamp 35:57 minutes)

Taking questions off-topic is bad enough but even worse when the narrator is semi-incoherent. There is a distinct difference between manufacturing a logo and putting it on something to sell and purchasing a logo and consuming that purchase in the manufacturing of something to sell.

Paragraph 2 is rambling, nonsensical and devoid of subject relevance.

Um, (??) brings up a, um, a I like that you guys are bringing up questions helping me. Basically, if the customer buys Disney fabric and then gives you the fabric and pays you to make the quilt, is this kosher? Legally, letís put that aside. Ok because practically is what matters the most to you. Whether or not they gave it to you or you bought it, if Disney somehow finds out this happens and then they go after you, is that really something you want to, is that really that dance in the gray area that you want to enter into? Um, itís just itís thereís a risk attached.

"Legally, let's put that aside". Why? Is not the legal analysis of this issue the claimed purpose of this "blog"? Joey must be getting tired because his rambling has increased.

Letís see here you guys. Elizabeth Townsend Guard asks, "What about transformative use?" Elizabeth that goes back to the idea of a derivative work. So if you if you you know buy something and you kind of leaning on the First Sale Doctrine, say that I bought it but Iím reselling it, so First Sale Doctrine, so Iím good. If youíre transforming it then thatís a derivative work and you can no longer and thatís an exception of the rule youíre back on the hook for copyright infringement.

Transformation does fall under a derivative work which is one of the exclusive rights of the copyright owner. However, buying something and then simply re-selling it is not transforming the item and doesn't fall under a derivative work. Re-selling the original product has never been considered a derivative. Joey, did you actually take any intellectual property courses in law school?

Jennifer, great question. "What about giving the designer credit? Does that CYA?" And the answer is no, so and this is this is really important. Is that, giving credit is not the same thing as giving permission. Ok and so if just a lot of people make this mistake too when it comes to quotes. Using quotes on things or the fact that this quote that I love, that Iím going to say this is the person who did it or where Iím getting it from or this is the song that Iím borrowing it from unless you have that express permission to use it. Just because youíre giving them credit is not enough there has to be a license or an implied license there.

Really? This answer makes very little sense. The "blog" is about licensed fabrics and somehow the answer morphed into an incoherent ramble about quotes and song lyrics. Under US Copyright Law there is no requirement of attribution. Just say that attribution is not permission.

You guys have really good questions. Lisa says honestly itís not worth the risk. Wow you guys lots of comments coming in. Alright you guys, weíre going to wrap it up pretty soon here. Um, lots of of specific questions coming in and, um, Iím loving that you guys have a lot here. Again, this was meant to be a general overview that put a lot of the, um, big legal concepts into context for you. Um, and and [sic] because because [sic] of that nature Iím loving the fact that you know we can have the engagement here that we can do follow-ups. Um, Linda, youíre welcome, um, but this is not the place where I can give you guys specific advice in your situation. And so lots of good questions coming in. Um, the the the reason why I thank you guys itís been a pleasure you guys. Um, so hereís the deal if you want to share what youíve learned here you can you can share out this whole this replay this video itís only going to exist for about 48 hours, um, but you can find it at fabrics.indielaw.com.

Please join our facebook group Friends of Indie Law there are over 6k people in the group. Awesome community. Um, feel free to work with us at IndieLaw.com. In the bottom of all these slides youíll see that I put IndieLaw.com/consulation calls, thatís the best way if you have a specific question for it

Joey said "you guys" over forty times and he said "um" over 100 times. Not the class of speaker we would want in court.


End Of The Fabric Crash Course on-line blog.


This web site, Tabberone.com is owned and maintained by Karen Dudnikov and Michael Meadors, P.O. Box 87, Hartsel CO 80449. We are solely responsible for the content and the opinions expressed here. Please make sure you spell our names correctly, and include both names on any threats of litigation and/or court documents.

More coming soon to this page. Stay tuned. Don't touch that dial.

 

 

Rebuttals

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.

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine
; Derivative   |   The Digital Millennium Copyright Act   |   EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration
Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns
Patterns Index   |   Profit   |   Quilting   |   Selvage   |   Stanford School of Law Case Outline
Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

iweb counter
-->