Infringement when making something that isn't available otherwise?

[maneki]

One last quick question (well, hopefully the last)... I've seen a lot of people selling obviously copyrighted/trademarked items (especially Disney) and they post a disclaimer that they aren't the copyright holder, take no credit for the artwork, etc. I was under the impression that this is not sufficient, but there are so many people doing it that I started to wonder. That isn't enough to be protection, right?


Edited to add - And drat, the more I look at that BBC link the more I think it doesn't apply to me. I think that's referring to using BBC Online if you're a business. I guess like if you have a small shop and offer a spot for people to watch shows or something. Guess my search continues.

 

[FlyingRon]

If they are making copies, it is certainly not sufficient.

The place where the disclaimer works is when you are selling NON-COPIED items that were legally obtained. There's some controversy whether that extends to things like buying licensed Disney fabric and making it into things, though I tend to believe that it is still covered by the first sale doctrine. It does not apply to your situation at all.

 

[quincy]

One last quick question (well, hopefully the last)... I've seen a lot of people selling obviously copyrighted/trademarked items (especially Disney) and they post a disclaimer that they aren't the copyright holder, take no credit for the artwork, etc. I was under the impression that this is not sufficient, but there are so many people doing it that I started to wonder. That isn't enough to be protection, right?


Edited to add - And drat, the more I look at that BBC link the more I think it doesn't apply to me. I think that's referring to using BBC Online if you're a business. I guess like if you have a small shop and offer a spot for people to watch shows or something. Guess my search continues.

I thought perhaps you had found something on the BBC site that I had not seen, maneki, because I did not think your proposed uses of the Dr. Who material was legal without a license from what I read (but I only skimmed over what was there).

You can legally sell legally-purchased Disney items under the First Sale Doctrine, as FlyingRon noted, or you can sell Disney items if you are a licensed retailer for Disney. But those who are trying to sell items they created using Disney characters, well, that is likely to attract the attention of Disney attorneys. Disney is not shy about sending out cease and desist letters and threatening to sue (and suing) for infringement of either their copyrights or their trademark rights.

Disclaimers cannot prevent lawsuits. The most disclaimers can do is work to mitigate (lessen) any damages that might be awarded in court.

If you want to use Dr. Who or World of Warcraft material in your commercial venture, you probably cannot escape getting a license to use the material first. If you haven't already read the Koons' cases I cited, I suggest you do - so you know exactly what a court looks at when someone decides to use rights-protected material and this use is challenged by the rights-holder.

Good luck.

 

[maneki]

I'm definitely not opposed to getting a license. I'm trying to work on contacting the right people now actually. I don't want to take any risks, ya know?

Oh and yeah, I misread the link last night. That's what I get for trying to read things late at night when I'm half falling asleep. lol

 

[quincy]

I'm definitely not opposed to getting a license. I'm trying to work on contacting the right people now actually. I don't want to take any risks, ya know?

I understood that you were not opposed to getting a license. In fact, you sound as if you are doing everything right, right now. Many people who post to this forum come here AFTER they are in a legal mess, trying to find a way out. You are here trying to AVOID a legal mess, and I applaud you for that.

It is not easy getting a license to use popular material. Licenses are generally limited and licenses are generally expensive.

But, you never know what will strike a right-holder's fancy. And, it is not expensive to research getting a license or approaching a rights-holder with a request for one. The worst they can do is say no.

Both the Blizzard site and the BBC site have a place to "Contact Us" and you can use that to inquire about licensing. Both sites have "legal rights" sections and I am pretty sure there is a place on both sites with licensing information.

It is tough being a start-up company with a clever idea that depends on cooperation from a big company to make that clever idea come alive. I wish you much luck with your venture.