Can I Make Items Using Copyrighted Fabric?

By Bryan Driscoll, J.D.

Can I Make Items Using Copyrighted Fabric?

By Bryan Driscoll, J.D.

Using copyrighted fabric can cause confusion when you want to use that specific fabric to create your own items. If you're creating items for yourself, you can always use copyrighted fabric. Plus, if you're creating an item for sale—as long as your creation is unique—you can use copyrighted fabric in your design.

Two women looking at fabric together

When you see copyright markings on the fabric, it's easy to be confused about the restrictions on you to use that fabric. But the copyright on the fabric is simply copyrighting the fabric itself. You are free to create items with that fabric.

Personal Items

United States copyright law provides protections to owners of copyrighted items. Copyright law applies to tangible items that are created and can be reproduced.

In all circumstances, you can use copyrighted fabric for personal use. In fact, that's the intended purpose. You can make clothing, shades, blankets, pillows, or any other item you can design and create with the fabric you purchased.

Items for Sale

Using copyright fabric in items you create for sale can be a bit more complicated. When you design and create an item for sale, the design and the item are yours. Using copyrighted fabric is acceptable because you're not simply re-selling the fabric. Rather, you're creating something entirely new.

Some fabric companies have tried to sue other companies and individuals for using their fabric in a new creation. Oftentimes copyrighted fabric will have language on it that states it can't be used for resale. However, courts have routinely held this language is unenforceable because you, as the buyer of the fabric, did not agree to only use the fabric for yourself.

In addition to courts siding with buyers of copyrighted fabric, there is a first sale doctrine that protects subsequent buyers of copyrighted items. Under the first sale doctrine, copyright owners can only bring a claim against the first purchaser of their product. The first sale doctrine protects you since you purchased copyrighted fabric from a store that already purchased the fabric from the owner. The copyrighted fabric owner cannot control what you do with the fabric.

You can use a disclaimer on your items to help protect against overzealous copyrighted fabric owners. Placing a disclaimer on your website or on a tag on the items you sell that clearly states your product is not related to or affiliated with the copyrighted fabric owner can help prevent any legal action. Make sure that you find the right attorney who can properly assist you with your claim defense should you find yourself in a position where you are being sued for the use of copyrighted fabric.

Copyright Your Items

This might be the most important point. When you create items for sale with copyrighted fabric, your item for sale is completely unique from the copyrighted fabric. This means you have created a new item that should receive copyright protection. You don't want anyone else to steal your product and profit from it without providing you compensation. The only way to protect yourself and your creation is to register a copyright.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.