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Right to Resell CR/TM work.....

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G

Green454W

Guest
What is the name of your state? Ohio
I am trying to sell a collection of artwork on eBay.
These pieces are 100% genuine, they are not fakes.
Other sellers list pieces by the same artist but list them in an unusual way. They use the first and last name of the artist in the item title but not together, for example.... we'll call the original artist Bob Smith... sellers have titles such as... Bob Jones art by Smith.
Then in the actual listings they have placed stickers (or sometimes just Post-It notes) on the artwork and claim that it is a new piece. They state that the stickers are removed before shipping without damage to the original piece.
When I questioned sellers about this, they explained that they do it to try and avoid having their auctions pulled by the original artist using the VERO program.
Despite thinking this was a little odd - it seemed to be working for them, so I started to list my collection for sale using the same method of listing. I had all but one of my auctions removed by the Original Artist using the VERO program. (Don't know why one was left - but it was the one that was selling for the lowest price). The VERO member claims that I was infringing on CR and also using a term that he uses to describe the artwork.
After doing a lot of reading about CR/TM law, I know have an understanding of "derivative" work and am suspicious that I might have overstepped the mark. I have looked up TM that the original artist has registered. It seems that the artist just takes exception to having his art sold on eBay.
The collection have is worth quite a chunk of change and I really must sell it.
After giving you the background my question is
Why can't I sell the works for what they really are? Why can't I use the artists name to identify these pieces (without it no-one looking on ebay would find the listing)?
Aren't I covered by the First Sale Doc.? They can no longer control what is done with these pieces.
Couldn't I be covered by nominative fair use? I must be able to identify the art work using artists name - I am NOT claiming to be the artist or in any way sponsored or endorsed by them. I understand that visual art is offered greater protection but I am using my own pictures of the art that I OWN. I intend to put something over the image, such as DO NOT COPY to offer the original artist some protection from silly folks who think that a low-res picture is a replacement for the real thing.
I have even invited the Original Artist to word his own disclaimer for the auction listing so long as they do not call into question the authenticity of the item.
The Artist's Vero AboutMe page states roughly what is below (I changed names in parentheses)
The right to use (Bob Smith's) name, images of his (art), text or prose for the purposes of advertising to sell belongs exclusively to (Bob Smith and Bob Smith Co.) The unauthorized use of any of the above is considered an infringement of copyright under US and Canadian Federal Law. With the cooperation of eBay's own VeRO program, any auctions violating the aforementioned copyrights will be terminated without prejudice.

I wish the artist no ill will. Most of the pieces I am selling he no longer offers for sale so I don't even understand - it's not like I'm undercutting his prices.
If anyone can answer my questions or shed any light as to his potential reasoning it would be hugely appreciated.
Thanks!
 


J

J. Michael

Guest
ebay is overly cautious. just because they cancel your auction doesn't necessarily mean you did anything illegal. you might have broken their user contract you agreed to as you signed up. here is someone who has had much experience with VeRO abuse and getting reinstated: http://www.tabberone.com/
 

tabberone

Junior Member
eBay is acting under the provisions of the DMCA.

Why don't you email the VeRO member and ask them why your auction isn't protected under First Sale and Fair Use.

Then maybe ask them if they know about penalties for perjury and misrepresentation under 17 U.S.C. 512(f)
 

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