Portlandia- Put a Bird On It
In the above episode of Portlandia, the characters mock the phenomena of putting a bird on something and calling it art. If you make products for sale using images that you did not create, there are copyright implications to consider.
Go to a craft show or browse crafty websites and you will find many products for sale using images not created by the seller. If you find a drawing, image, illustration or other picture you'd like to use on products for sale, you need to research the copyright. For example, say you found a drawing of a bird in a recent book. You like the drawing and photocopy it to use on a tote bag that you intend to sell to others. In most instances, unless you can make a "fair use" argument that you are using the copied bird for comment, criticism, news reporting, teaching, scholarship, or research, you may have committed copyright infringement.
Many non-lawyers will tell you that instead of copying the bird, if you simply cut the image out of the book and use it directly on an object to sell, it is acceptable under the "first sale" doctrine. That is not necessarily true. The original copyright owner also has rights to any "derivative" works using the image. Courts have split under different fact scenarios as to what is a derivative work and when a new work is protected by first sale. Ultimately, it is up to a court to determine what is "fair use" and what is not if a dispute occurs and there are no bright line rules. In considering whether to use images created by someone else in your products for sale, carefully evaluate the copyright considerations and seek legal counsel.
Sarah E. Holmes is a Philadelphia business attorney and strategist that helps start ups and established businesses looking to expand, protect their assets and increase their profits in an approachable, down-to-earth way. When you're looking for a business lawyer near you, we offer several convenient locations.