Trademark Law (Once Again) Getting In The Way Of Fan Art

from the time-to-embrace-free-licenses dept

Rose M. Welch points us to this recent News.com story about how the popular homemade crafts website Etsy has had to balance trademark issues, since many people like to make "fan art" and often would like to sell it on the site. In some ways, it appears to be the same sort of thing that many content creators went through with people creating fan fiction or other forms of fan art online, complicated (of course) by the fact that Etsy is used to sell these goods. The overall article is about what you'd expect.

However, I did want to take issue with one part of the article, which repeats the (oft-repeated) claim that trademark holders have to block such uses of their work. That's not quite true, and it's annoying that it gets repeated as fact all the time. Rights holders do have to protect unauthorized uses of their work that are likely to confuse, but don't have to protect in cases where there wouldn't be any confusion at all. Separately, (and this is the part that most often gets ignored) if they come across an unauthorized use, they absolutely can issue a free license to make it authorized -- and thus, not risk "losing" the trademark. However, very few brands do this, in part because of the myth that they absolutely must stop all unauthorized uses. There are other options, and granting a license is a good one.
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Filed Under: fan art, trademark
Companies: etsy


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  1. icon
    Phatnobody (profile), 3 Nov 2010 @ 1:12am

    Re: Illegalize fanworks in protection of trademark

    Not sure about this, it sounds a little alarmist. There is no doubt that companies don't *have* to stamp on every use of their trademarked property.

    What is not called out is that this behaviour is really nothing to do with misunderstanding the law but is very much to do with protecting the commercial agreements (and hence the profits) they already have in place.

    The way a lot of companies react to fan-made products is different to the way they react to fan art. Fan-made products are perceived (note I said *perceived*) to be competing with officially approved products and I wonder how often the commercial agreements for merchandising include a clause about protecting that monopoly.

    In short, I suspect that they don't misunderstand trademark law, they deliberately wield it against commercially available fan-made products to maintain high-value contracts with merchandisers.

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