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  • #975013
    Di
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    Hi all,
    After a lot of searching, I’m finding it hard to get the info I need.
    I am wanting to purchase small quantities of designer fabric to use in a variety of ways in my soon to be official business of event styling and invitations.
    Some fabric designers clearly state how they wish their fabric to be used, whether it may be personal use only or commercial use.
    My concern is the ones who don’t have any information on their product, a lot of designers don’t have their own website you can go to for any info. There are hundreds of websites who sell a variety of different designers fabric(like a quilters website) who don’t offer any info on whether the fabric can be used commercially.
    I have emailed a few without a response!
    Anyone out there that can give me more info or direct me to more information?
    Would be great, thanks!

    #1071846
    AveSol
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    Hi Di,

    This is a really interesting issue actually. And, to be honest, I don’t know the answer off the top of my head.

    The issue is interesting because, quite unlike something which you are merely licensed to use, like software for instance, it seems you are purchasing all the rights in the fabric such that you effectively have ownership of it. Once you have such rights, and subject to any terms of sale to the contrary (i.e. the terms under which you purchased the fabric), you would be free to do with the fabric whatever you wanted, including re-sale. So, my preliminary view would be that, if you’ve not agreed to any restriction on your rights relating to the fabric, then you can use it in any way you wish, including for sale in the course of commerce.

    Incidentally, I would be very interested to see the means by which some of the fabric suppliers purport to restrict your rights in relation to the fabric.

    So, to my mind, and assuming you are not seeking to reproduce the fabric design etc, this really isn’t a copyright issue, but more an issue about the terms under which you purchase the farbric in the first place.

    If the issue is important to your overall business it might be worth taking some professional advice in relation to it. My firm, Avenue Solutions, can certainly help you with this.

    Hope these brief comments help you and best of luck with the business.

    Richard

    #1071847
    JacquiPryor
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    Hi di,

    There’s a few areas to consider here, and I hope the following is of assistance to you:

    I suggest you visit http://www.copyright.org.au/find-an-answer/browse-by-keywords/

    Type “Fabric” into the search field, and then open the pdf for Fashion & Costume Designers, as this discusses (briefly) patterns/designs printed on fabric.

    Also at the above website you will find a heap of ‘fact sheets’ about Copyright, including what you can/cannot do and what would constitute infringement etc.

    As you will read, it also directs you to the fact that certain applications may also have design registration. You can search on Australian designs at http://pericles.ipaustralia.gov.au/adds2/adds.adds_simple_search.paint_simple_search – in the Article/Product field, type FABRIC and see what comes up; generally speaking if the exact design is there it will show you whether it’s registered or not in Australia. Under the current Designs Act, maximum protection period is 10 years, and once the registration runs out (again generally speaking) it would be free for use; (different cases may hold different circumstances so please note this is all provided as general information and not specific advice).

    And to further add to this – depending on the designer in question they may have further protection by way of trademark registration (which can exist forever). For example only, known designer Louis Vuitton has protected the famous ‘fabric pattern’ used as a trademark for a variety of goods – including simply fabrics and materials; so, use of their pattern without permission for commercial purposes could be seen as a trademark infringement.

    I realise there’s a bit to go over. Will keep my eye on this thread should you have further questions.

    All the best,

    #1071848
    Di
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    Thanks Richard and Jacqui for your response.
    I have since recieved an email from one textile designer saying that I cannot use her fabric in any way for resale.

    Just wondering how so many people out there, such as sellers at craft markets get away with this- I see lots of designer fabrics being reproduced into clothing and the like!

    My sister in-law is a law grad and is trying to get info on this for me, but there seems to be a fine line on how much of the product you are using, and how much of your own input to your design depends on copyright laws.

    Ahh, well I will have a look at those links-thanks very much Jacqui.

    Wish me luck!!!!

    #1071849
    JacquiPryor
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    Hi Di

    In terms of “a fine line on how much of the product you are using, and how much of your own input to your design…” despite popular belief there’s no “percentage” of change that will guarantee you avoid copyright infringement or other action etc.

    From the copyright perspective, you can be found to infringe if you use a ‘substantial part’ of someone’s works – substantial does not necessarily mean a large part, but one that’s ‘important’ to the works.

    Just because there are people at markets and similar using other people’s fabrics does not necessarily mean they should be doing so :) They may ‘get away with it’ at times simply because the owner doesn’t realise they are doing it. They may also be using fabrics that are not protected under different Intellectual Property laws and/or if they are, may have the appropriate permissions to use it for their purposes etc.

    Good Luck!

    #1071850
    AveSol
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    Hi again, Di

    Jacqui has provided you with some really good information in her posts pertaining to copyright and design issues generally, and I’m sure these have been of assistance to you.

    I thought I would comment again because obviously this really is an issue that is important for your business and, to my mind, I’m still not entirely sure that you are dealing principally with a copyright issue here. Copyright is relevant, but perhaps not the main issue.

    As I suggested in my previous post, and based on my understanding, you are buying fabric. That is, you have a proprietary right (i.e. ownership) in the fabric. You don’t own the design in the fabric, nor do you have rights to reproduce the fabric etc. You simply own the physical fabric that you buy. If you have a proprietary right in the fabric then, subject to any terms restricting that right, you have the right to sell it.

    In your subsequent post, you noted that a fabric seller told you that you “…cannot use her fabric in any way for resale”. I think the seller would be relying on a term of sale here, rather than her copyright subsisting in the fabric.

    Copyright in an artistic work (which I think the fabric could be) is generally the right to reproduce, publish or communicate the artistic work. A sale of the work doesn’t necessarily involve any of these things. The Copyright Act 1968 does deal with infringement of copyright through sale, and you can see that section here: http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s38.html#article. As concerns copyright, then, the question becomes – are you doing anything with the fabric that would infringe any copyright subsisting in the fabric? I’m just not sure that you are.

    I’ll give an example, which kind of follows one given by Jacqui in her post: You buy a Louis Vuitton handbag. You own the bag, it’s yours. You subsequently decide the handbag isn’t for you, so you sell it to me. Have you infringed Louis Vuitton’s copyright in the design of the bag? Can copyright, in and of itself, be used to restrict your rights to sell your bag?

    Like I said before, I honestly don’t know what the answer is here but I’m not convinced, based on what I know, that your use of the fabric is necessarily breaching copyrights. I can see that it might breach terms of sale under which you purchase the fabric, but you can deal with that issue by negotiating those terms or otherwise dealing with suppliers who don’t supply on such terms.

    I hope this helps and obviously my comments here are for your assistance only and do not constitute legal advice upon which you can rely. I would be interested to hear your thoughts, and Jacqui’s too.

    Best regards,

    Richard

    #1071851
    Kennethti
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    Hello all,

    Jacqui’s information is very good in relation to your question.

    My two cents here – it may be that if you intend to use the fabric to produce products for sale to the general public, perhaps it might be best to enter into an agreement with the owner of the fabric design to specifically deal with that issue and provide you with a license to use the design for those specific purposes.

    #1071852
    victorng
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    Spot on Richard.

    Even if we assume that copyright subsists in the design on the fabric, then selling the fabric, turning it into a tea towel or making curtains out of it, isn’t an infringement of copyright. Heading down to your local screen printer and getting them to copy the design on the fabric would be an infringement of copyright.

    The article and the copyright in the article are separate things. I do not need a licence from the author to sell you her book. But I do need a licence to print copies of the book. (Books I understand, LV handbags not so much…)

    In terms of contractual restrictions etc … what Richard said. :)

    Cheers,
    Victor

    #1071853
    AveSol
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    Gday Di,

    So you clearly have plenty of good info here which hopefully might help you out with this issue.

    My final comment for now – whilst the information in this thread is really good stuff, you would be best placed to get some professional advice so that you can move forward with confidence. If you engage someone to provide professional advice, they will consider the law in light of your very specific circumstances, and that is what you actually need.

    There are plenty of good advisers floating around these forums, including in this thread, so you are spoiled for choice.

    All the best.

    Richard

    #1071854
    Di
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    Wow! Thanks to all for the wonderful feedback.

    I think at this stage for me, I will use the fabrics that I know for sure is not going to get me inot any trouble, but will continue to pursue this issue.

    I have had lots of conflicting advice from some people, so I think it is a very fine line here, and certainly not a clear cut answer, but thanks again to all comments- they all make sense to me.
    I now need to move on and use what I know is safe.

    Hey I might just design my own textile designs!!

    #1071855
    JacquiPryor
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    Hi all,

    This certainly opened up an interesting discussion (sorry Di, bet you didn’t think it would become so complicated!)

    I think Kenneth’s post is sound advice; if you can reach the agreement with the fabric designer’s then you will safe guard yourself against all these ‘possible’ issues – likewise – if you choose to design your own fabrics you would then become the copyright holder and have the rights Richard pointed out to be held in copyright works.

    Richard & Victor – thanks for your posts… Copyright is not my specific area of expertise (ask me a trademark related question and I can usually provide an answer) – so have a general working knowledge, but more so where trademark also relates so your explanations have cleared a couple of my previous indefinite comments of “may be” and “it could be” etc, so much thanks :)

    #1071856
    Nat16
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    Hi Di,

    Let me rack my brain (and internet history lol) as I was reading this the other week and came across a blog that was talking about a few of the US designers (Micheal Miller, Amy Butler ect), I know Amy Butler did have a copyright on her materials where you could not use the material for anything other then personal use, but has obviously seen sense and lifted it lol. The best way to find out is to contact the manufacturers I guess.

    Check out http://www.spoonflower.com – you can design your own prints and you can also purchase other designs if they have given permission. Also Etsy may be a good place to search for some unique prints :)

    Nat

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