Can I Make Items Using Copyrighted Fabric?

by Marilyn Lindblad

    Sewing and crafting enthusiasts who purchase fabric by the yard are no doubt familiar with copyright markings. Fabric manufacturers imprint many textiles with the copyright symbol on the selvage edge of the fabric along with the manufacturer's name to put the world on notice that their designs are protected by U.S. copyright law. These symbols can be confusing when someone wants to make -- and perhaps sell -- items using copyrighted fabric.

    Copyright Law

    According to the U.S. Copyright Office, copyright law protects original creations that are fixed in a tangible medium that is capable of being reproduced. Copyright law applies to print fabrics because the print design is an original creation, and fabric is a medium that someone can reproduce. With digital scanning and fabric printing technology, someone could copy the protected design onto blank fabric. Copyright law prohibits this type of reproduction.

    Personal Items

    Using copyrighted fabric to make clothing, household goods and craft items for your personal use is clearly permissible under copyright law. Some manufacturers even print the phrase "for non-commercial home use only" on the selvage of their copyrighted fabrics, giving their implicit approval for you to use these fabrics for home sewing projects. You can make apparel, window treatments, lamp shades and other items from these textiles.

    Items for Sale

    In most circumstances, you can legally sell items that you make from copyrighted fabric. On several occasions, copyright holders have filed lawsuits related to buyers' use of products with restrictive labeling, similar to the marks that fabric makers print on the selvage of textiles. For example, when makers of haircare products labeled "for professional use only," sued retail distributors that sold the products to nonprofessionals, judges dismissed the lawsuits. The distributors who bought the haircare products had not signed a written agreement that they would comply with the manufacturers' restrictions, and the courts held that a one-sided directive from the manufacturer was not enforceable.

    First Sale Doctrine

    The "first sale doctrine" is the legal doctrine that protects the items that you make from copyrighted fabric and sell. Under the first sale doctrine, a copyright owner can enforce its rights the first time it sells an item. After the first sale, the item enters the stream of commerce, and the copyright owner's control ends. With copyrighted fabric, the first sale occurs when the copyright owner licenses or sells its copyright to the fabric manufacturer. When you purchase the fabric from a fabric store, your purchase is a subsequent sale that the copyright owner cannot control.

    Disclaimers

    In spite of the legal restrictions presented by the first sale doctrine, some copyright holders nevertheless try to enforce their copyright protection against individuals who make and sell items from copyrighted fabric. You may be able to reduce the risk of a rights owner attempting to enforce its rights against you by using a disclaimer when you sell your products. Whether you sell online, at a craft bazaars or in a retail store, it can't hurt to include a disclaimer on your website, at your booth or on your packaging that clearly states that your products are not associated or affiliated with the original copyright owner.

    About the Author

    Marilyn Lindblad practices law on the west coast of the United States. She has been a freelance writer since 2007. Her work has appeared on various websites. Lindblad received her Juris Doctor from Lewis and Clark Law School.