Regarding ceramics, what constitutes Copyright/Trademark infringement?
Through a collaborative effort with Mike Smith of Cindy’s Ceramics, the following is presented to clarify and answer the many questions regarding selling ceramics from illegal molds, or by using illegal trademarks.
First: What is an illegal mold?
Quite simply put, it is any mold of any product or item that has been copyrighted or trademarked by ANYONE without license. Most often discussions surround animated items such as anything Disney, Warner Brothers, Minions, Sponge Bob, Precious Moments,¬¬¬¬ Star Wars, Ninja Turtles, California Raisins, etc.
This also includes manufacturing a mold from a licensed/trademarked/copyrighted item without express permission from the license holder.
What is copyright or trademark infringement?
Copyright is a legal right created by the law of a country which grants the creator of original work the exclusive right to its use and distribution. In the USA this law attaches legal protection to fixed or tangible representation and reproduction.
Reproducing art or anything such as logos, or characters that are trademarked or copyrighted by another onto any item without having license to do so (for profit). Most popular items are AFL & NFL logos, animated or cartoon characters, Harley Davidson, etc.
Copyright infringement Is the use of items protected by copyright law without permission… infringing. Certain exclusive rights are granted to the holder of the copyright to include the right to reproduce, distribute, display or perform the protected work. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.
First and foremost, remember, this applies not only to Disney's items, but all licensed characters and trademarks. This is coming up left and right with the people looking for Harley Davidson stuff, Disney, Star Wars, Looney Tunes, Peanuts, etc. And trust me folks, license holders DO go after ceramic shops. Harley went after a few Southern shops a year or two ago (there have NEVER been any licensed molds or bisque for Harley stuff), and Disney religiously protects its IP rights over all of it's pieces (which now includes Star Wars).
"Rules" For Your Own Protection
1.) Don't sell anything finished for anything that carries a trademark, copyright, etc without first obtaining written permission from the IPR holder. This doesn't mean you get a free pass just because Mom and Pop Ceramics in Padukah said you can, you have to go to the IPR HOLDER. Please note, this ALSO APPLIES to trademarked teams (NHL, NFL, College teams, etc.).
2.) Molds: very few Looney Tunes molds were legally made, and of course we all know about the Disney ones. Only sell greenware or Bisque from LEGAL versions of the molds. If challenged, you will need to provide proof that the molds were made legally. If you don't know or aren't sure... dump the mold in the nearest trash bin and forget you ever saw it. It's not worth the legal hassle or the constant scrutiny you'll be under. I see some of them come up every time I log onto FB or Ebay and even Etsy
3.) Making molded copies: Don't. NO, Never, ever. Not of molds, not of bisque, not anything. Just because it's made in China, Japan, South Africa, Philadelphia, or Botswana, it doesn't give you the right to make a copy of it. Even if the item was made by a company out of business, it does not invalidate the license. Typically, license lasts 50-100 years AFTER the demise of the originator.
4.) If you have a LEGAL/recalled mold, or want to use a trademark, you can make a finished piece for yourself, as long as you don't try to sell it. Licenses of these items DO NOT permit the mold owner or bisque purchaser to sell the items finished.
Something about Disney
1.) Leisuramics was a subsidiary label of Gare. At one time, they had license to sell Disney molds.
2.) The problem with any of the Disney molds, unless you are the ORIGINAL owner, or can *prove* a chain of ownership (in writing) that goes all the way back to the original purchase from Gare (with an original receipt), the assumption can be made that they are illegal copies. It doesn't matter that they are stamped with Leisuramics logo on the outside or the Disney tm on the inside, those would both show up on a black-market copy if the copier took the time to do so (it would only take a couple hundred dollars for someone to do that, and trust me, it HAS been done). It's a lot like buying a Louis Vuitton purse from the guy on the sidewalk in NYC for $15. You might be gullible enough to think it's a real Louis Vuitton, but it's not. Ignorance is NO excuse under the law.
3.) Most people don't understand how a mold is actually reproduced, but that's it folks: if you have a mold, it is possible to copy that mold (illegally), which would include every facet of the original mold (mold numbers, copyrights, trademarks, bumps, dings, etc).
4.) If an investigator comes into your shop, it is incumbent upon you, as the one making a profit on the item, to prove that the item being asked about is legit. You can argue a million ways until Friday, but if you get hauled into court, costs can go rapidly into the tens of thousands, whereas your profit on 35-40 year old molds is what... maybe a couple hundred each year (or more likely, less than a hundred each year on molds where the detail has got to be iffy by now)? And before you say "well, it'll cost Disney $xxxx too." Their lawyers are paid regardless of whether they're sitting at a desk in court suing you, or sitting at a desk in their office playing Angry Birds. Which also brings up the point that that investigator may have a right to search *all* of your molds if he suspects you're selling something not quite right. It has happened in the past, and continues to happen (most recently with all the black market Harley Davidson pieces that were going around). Once they have a reason, or suspected reason, to perform a legal search, there is nothing you can do about it save stand back and watch.
5.) Disney *did* do a recall. The recall was published in all of the major ceramic publications of the day (I want to say it was the early 80's, but possibly earlier) as well as sent out to many of the original purchasers; however, not all of the molds were turned in (obviously) and that's also when all the copies started popping up.
6.) One of the most prolific copiers was actually based in Orlando (and he did time for manufacturing the molds and selling them and the bisque).
7.) Personal use should be fine, you're not making a profit from someone else's trademarked and copyrighted images. As long as you don’t sell any. Think you can do it and not get caught? Think again. Rewards are offered by many companies for reporting people who sell non licensed items. A simple search on the internet will result in many infractions. These people are dancing on the edge and taking great risk.
8.) Selling finished ware on them also violates every bit of the license Disney originally gave to Gare (same with the recently released line of Disney bisque from Chesapeake - personal use is fine, but don't try to sell the finished piece). The documentation that came when Gare came out with the line of bisque originally (yes, the molds were released in bisque versions first) specifically forbade the sale of finished pieces, and that went along with the mold sales later as well.
9.) Obviously, there's going to be people who will argue with all of this until the cows come home (they're usually the ones who argue that the molds are a goldmine... Seriously? 35 to 40-year-old molds that have been poured dozens of times... you'd be better off selling people a plate and letting them finish it with a Mickey face on it (just don't provide any sort of pattern for them)- encourage them to be creative, rather than frustrated that they can't see the lines for Grumpy's eyes or Mickey's pinstripes. I'm sorry, but reality is that you'll make more money off of a newlegal mold than you will with all of this and worrying the entire time if the next guy to come in your shop is looking for bootlegs.
10.) "Once you own something, don't you have the right to sell it, trade it, pass it along?" No.
This is a whole other topic that would take hours to get into, but long story short and with a quick example: if you buy a song and you pass copies of that song along, you're liable for IPR infringement. With every ceramic mold you purchase, you're also purchasing licenses with those molds, which vary from company to company
CME would like to thank Mike Smith whose assistance to compile this information was invaluable. Please note that we are not attorneys and encourage individuals check with a copyright lawyer before they attempt to copy or produce items that may have a copyright.
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