FEATURE
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How to negotiate the line between trademark infringement
and your First Amendment rights.
If you use recognizable brands in your art, does that make you a budding Warhol or just a juicy lawsuit target? While you might get a cease-and-desist letter invoking trademark or publicity law, in fact the law is often on your side.
When referencing or riffing upon subjects of pop culture, crafters may be accused of violating a company’s trademark or a celebrity’s right of publicity. Can a company stop us from leaving its logo on our recycled crafts? When we mock products or depict celebrities who parade their lives before us, are we infringing their rights?
In many cases the answer is no, as most trademark and publicity restrictions apply only against exploitation “in commerce.” But when it comes to work prepared for sale, it’s wise to keep in mind some guidelines that can help smooth the way.
TRADEMARK
When someone becomes known for their products or services, trademark law shields their source-identifying name and logos against uses likely to confuse buyers. Trademark is designed to protect the consumer by giving manufacturers the right to stop the misleading commercial use of their identities. I can’t pass off fizzy water as Coca-Cola to lure thirsty buyers, or impersonate one of Etsy’s hotshot artists if I’m just getting started — I have to establish my own name and reputation.
That doesn’t mean that all uses of trademarks
are off-limits. The “likelihood of confusion” standard
protects those who use others’ trademarks in ways
that don’t confuse the consumer: the author whose
fictional characters wear real-world fashions; the
artist who includes real product labels in a collage; the stitcher who crafts a “Chewy Vuitton” dog toy. These users and their crafts pass muster because they don’t imply sponsorship or endorsement from the trademark holder.
More specifically, you can use trademarks to refer to trademarked items that the marks identify. If you’re knitting up a sock to keep your music player safe, you don’t need Apple’s permission to describe it as an “iPod cozy.” Although you shouldn’t emblazon the Apple logo on your web storefront unless you have a license from Apple, you’re free to use the marks as necessary to convey your product’s compatibility. Likewise, for all the NFL’s bluster, you can invite friends to a Super Bowl party without being forced into circumlocutions like “the big game.”
In a logo-filled world, branded products may also be the raw materials for recycled crafts. Target recently threatened Timbuk2, a maker of messenger bags that commissions artists to create designs and allows consumers to make their own, when the red-and-white bull’s-eye popped up on bags made from recycled plastic. Target complained that the use “could give the impression that these bags originate from, are somehow sponsored by, or are otherwise affiliated with Target.”
If you’re crafting for yourself or as a gift, you don’t have those commercial worries. But if you’re selling your work, you should make it clear to buyers and viewers that your work is independent craft, averting confusion. Though Timbuk2 chose to pull the bags, it’s far from clear that they were obliged. You don’t need permission from every brewery to make a bottle-cap purse, so long as you don’t claim it’s a “Bud.”
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