Tabberone's Hall Of Shame - Loralie Designs

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Tabberone's Hall of Shame
Added December 31, 2007

Loralie Designs

Loralie Designs is located at 1820 S. Morgan Street, Granbury, TX 76048. Their web site is located at www.loraliedesigns.com Their web site carries the disclaimer: All designs are Copyright © 2005 Loralie Harris and are sold for personal use only. Any reproduction for commercial purposes is prohibited. Loralie Designs doesn't want their fabric and designs sold on eBay and they say so.
Conract is shown by eBay as being Cami Gilbert, Loralie's Assistant & Project Manager, Phone 817.573.4015, Fax 817.579.5469.
Loralie designs is listed in Tabberone's Hall of Shame because they end perfectly legitimate eBay auctions for some of the most outrageous reasons.
Seems Loralie Designs took exception to Too-Much-Fabric selling their fabric on eBay. Huh? Just re-selling the fabric? On March 9, 2006, Too-Much-Fabric received the infamous Why Ended Email listing the offending auctions and who the culprit was, Loralie Designs.
On March 10, 2006, Too-Much-Fabric emailed Cami Gilbert at Loralie Designs for an explanation:
"I refer once again to all these cancelled auctions - did you look at my pictures? Each of them has an Australian 20c piece in them. I have never been to your web site and am not about to go there - but I assume you do not put Australian coins in your photographs to show scale. I bought your fabric in good faith from an American Retailer. I re sell on Ebay as a small business - I follow eBays stated policies and describe my fabrics in my own words and use my OWN photographs or scans. Please advise how this in an infringement. I look forward to your prompt reply!"
Cami's reply was:
"Our fabric and designs may not be sold on any global platform, such as ebay. This is part of our copyright law. That is why the auctions were taken down. For more on copyright please see our website at www.LoralieDesigns.com."
Whose copyright law, Cami? Loralie Designs? certainly not US Copyright Law.
Not to be deterred, Too-Much-Fabric fired back on March 11th:
"I bought this fabric at retail (via a huge internet retail site) I used what I needed - and am selling off the rest - I don't understand why I can not do this with your fabric when the retailer who sold it to me - presumably with your blessing - did so on a "global platform". I also looked to find many other sellers selling the same fabric on eBay.
Is your fabric protected by any other laws - than say Debbie Mumm or Kaffe Fassett, Liberty of London or Moda? I ask these questions only to clarify my position. For some time I have been selling my and other quilters left over fabrics on eBay and it has developed into a healthy little business. I have never had any other auctions pulled. Indeed Debbie Mumm has an About Me page on eBay that explains the legal requirements of selling any of her items - I notice your company doesn't have one of those pages - even though according to eBay it is encouraged as part of their VERO programme.
I would be interested to know why your fabric is treated differently by law than any others and why my auctions are being treated differently than other sellers."
Cami's next reply was:
To give you a little background, we were advised by our legal council to NOT allow any selling of our copyrighted images (i.e. fabric, machine embroidery) on ebay at all. There are many legalities that go with copyright law violations and other common violations that most artists face on a daily basis. At this point, we feel this is the best way we can protect ourselves is by not allowing any selling on ebay.
As far as selling our designs and fabric legally, I can't tell you how hard we work at trying to get people off of eBay. It's a never- ending battle. I assure you that everyday we check eBay to see who is selling our designs or fabric, and we e-mail their VeRO team to have them shut down. Sometimes this can take a couple days before we see any result. We've also been told by legal council that this is the best thing we can do right now, but that eBay is under investigation for allowing such violation. Unfortunately sometimes it takes years before anything gets to court.
Only recently, we were made aware that ebay had an Australia site as well and that is when we found many of our fabrics listed and had them taken down.
I hope this helps you see that we truly do care about our product and is unfortunate that we have to take such measures to protect our images.
What a crock! Cami, your counsel was wrong in telling you that re-selling the fabric is a copyright violation. Ask your lawyer to explain the First Sale Doctrine to you, that is, if your lawyer even knows about it. In addition, it is fair use, under trademark law, to use pictures of the product being sold. Toss in another one here, it is the pattern that is copyrighted, not the end product, so your lawyer is wrong on every count.
Cami also stated:
"Our copyright policies are stated on our website, which include the statement that our fabric and designs may not be sold on ebay.
You asked what law protects us from you selling our designs on ebay? The answer is our designs are copyrighted. The fabric you have purchased has our copyrighted images on them and therefore we have the right to protect ourselves from ebay use. Selling them in this way is a violation.
No, Cami, Copyright Law does not give you the right to prohibit your fabric, or other items, from being sold on Ebay, or anywhere else. The copyrighted images on the fabric were sold by you and not altered or reproduced when resold which makes the act of re-selling the perfectly legal!
On March 14, 2006, Cami wrote:

"If there are more auctions on ebay with our items, they are still ongoing because we have not found them at this time. Any auctions we find with our items we take down. So if you found some that we have not, the reason they have not been taken down is because we have not found them to notify vero about.
As far as the copyright....we have registered our images with the United States Office of Copyright. This copyright can be seen on the selvage of the fabric. Because our images are copyrighted, we have the right to control where they are or are not sold. Part of our copyright policy states that they may not be sold on ebay and that selling on ebay is a violation of the copyright. When someone disregards this policy, we can take legal action against them.
This is the part that would prevent you from being able to sell on ebay."
Sorry, Cami, but no cigar. The "copyrighted images" were lawfully purchased and then resold unaltered. Copyright law required someone reproduce the lawfully acquired item, not just resell it. After you have released the copyrighted item into the stream of commerce you relinquish control over the future use or resale of the item. If your lawyer didn't sleep through Supreme Court Decisions 101, your lawyer will find this under Quality King v Lanza, 1998. And, look under copyright law. A copyright statement is defined and no where in the definition will you see anything that gives the copyright owner the authority to insert their "disclaimers" of "controls" over the product.
Later on March 14, 2006, Cami wrote:
"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."
Having done her homework, Too-Much_fabric shot back:
Dear Cami
I note that you cite the following quote to support your case:
"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner"
The above is quote is partially correct, however you not quoting the full story. The point you are failing to grasp is that by agreeing to sell me the product (through a retailer freely advertising and displaying your designs on their website), you have granted me de facto permission to "reproduce, distribute, perform & publicly display" the image of the design. In effect, you have licensed me to do this by taking my money when you sold me the product. That's why I & every other c ustomer you have agrees to pay you good consideration for the product, whether you or they, realise it or not. If you claim that your terms of sale do not include these rights, then you need to show me where you have specifically excluded any of these above rights, and how you specifically drew my attention to them & obtained my formal written agreement to them, prior to my purchasing your product. If you can't do that, then you can't prevent me from doing whatever I want to with the product that I have legitimately & lawfully purchased.
It concerns me that you clearly have a fundamental misunderstanding of the protection that the law of copyright offers to a copyright holder. Copyright protects you against, amongst other things, the theft or improper use of your designs. An excellent example of improper use would be someone producing & selling fabric using your design without your permission. Copyright law absolutely allows you to take action to stop that sort of infringement of your design.
However there is a huge difference between selling your design and selling your fabric. Copyright does not give you the authority to restrict the ability of someone to on-sell your product when that product is 100% legitimate (i.e., NOT a knock off) and which has been lawfully purchased (scans of receipts can be provided!). Further, copyright law does not grant you some automatic license to bully & intimidate for your own dubious and debatable purposes, legitimate traders who are doing nothing other than sell genuine product that was lawfully purchased.
I therefore respectfully request that you contact eBay and instruct them to restore those of my auctions that you have incorrectly had pulled, as there has not been any breach of your copyright. I look forward to receiving your response by return email.
It seems Too-Much-Fabric's arguemnt struck a nerve. On March 15, 2006, Cami replied:
"I have contacted our attorney so he may give you the appropriate answer. As per my last email, it may take a few days. As soon as I hear back from him, I will email you the response".
On March 15, 2006, Cami replied:
"I met with our company president on this and he wanted me to reinstate your auctions. Our apologies. In review of your copyright statements, we have decided to no longer go after fabric being sold on ebay, only designs.
Here is the message I sent to Vero to reinstate your auctions:
Sent 03-14-06
I recently sent in the vero form to take down the auctions listed below. After further research, there was not a copyright infringement that we can find.
Please reinstate the following auctions and clear any restrictions we may have caused the seller. Our apologies.
8266519386 - Funky Quilter Fabric Rolls Mini Quilt Fabric Panel #7
8266519873 - Funky Knitter - Purple Mini Quilt Fabric Panel #1
8266519632 - Funky Quilter Tape Measure Mini Quilt Fabric Panel #6
8266519025 - Funky Quilter Shawl Mini Quilt Fabric Panel #4
8266519210 - Funky Quilter Quilt Mini Quilt Fabric Panel #3

Cami Gilbert
Loralie's Assistant & Project Manager"
Cami, we would caution you that you can not legitimately prevent your designs from being re-sold either. You can stop sales of copied patterns but not the originals. Nor can you legitimately prevent someone from selling fabric items made from the patterns. You see, Cami, it is the pattern that is copyrighted, not the end product. And, their is no legal basis for a disclaimer on the use of the patterns or the fabrics. While you might believe there is, ask your lawyer to point out the specififc federal or state law that gives any legal authority to your disclaimer. There are none. You need a new lawyer.
Part of the Licensing Agreement for Loralie Designs™ software contains the following"
"The Purchaser agrees to waive any claims to the Fair Use Exception and the First Sale Doctrine in US Copyright & Trademark Law that may attach to this protected material."
What a crock! Federal courts have already stated that a purchaser cannot waive their rights under federal law becuase of statements in an End User Licening Agreement ("EULA"). This statement by Loralie Designs shows that Loralie Designs and their hare-brained lawyers are not in touch with reality.

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.
We made this offer a very long time ago and as of September 2008, only AnimieHot.com, in our Hall Of Shame, and Charlotte Perman (Sevenarts in our Hall Of Shame) have chosen to submit a formal rebuttal.