What every Party Favor or Candy Wrapper business needs to know about Copyrights and Trademarks*
Why don’t you offer Disney, Dora, Spongebob graphics? You would sell a lot more.
This is very true, however, it would be very illigal. Even if Wrapcandy were to license these graphics from the copyright holders, you would only be able to use them for personal use. I know, you’ve probably seen countless people selling Disney Candy Wrappers on eBay. Just know that almost all of them are doing so without permission from the copyright holders.
It is interesting to note, that no one can copyright an idea or a color combination, however you can trademark names such as Shrek, Hello Kitty, Disney. These are protected names and cannot be used by anyone without written permission directly from the copyright holders.
Although, we do not directly offer these types of images or designs to customers, we do have a Faux or inspired by board with many user submitted shares. All of these shares come with disclaimers.
Here are a few are sample user submitted images.
Now, before you decide to use any of these types of designs, it is important to know that there are risks involved. I’ve spoken with copyright lawyers, and also have had a colleague of mine describe his ordeal with copyrights.
On the forum in the faux inspired by board, you will see the following disclaimer:
First it is not illegal to create an inspired by wrapper however it must be significantly different than the original and cannot use any trademarked name on the wrapper or your design. You cannot claim to be selling under license or make claims that you have any affiliation with the company.
Here is some information from Rich Fallon owner of foilman.com as well as other sites on this topic
“I am commenting on this topic from experience. Faux wrappers are not illegal provided they are significantly different from an original design or from an original copyrighted/trademarked item.
About 3 years ago I was threatened with a lawsuit for a group of designs I made by someone that thought I would just back down and remove my items. Sure I am a small business but I decided to hire an attorney and prove that what I did was legal. I learned a lot from that experience that helped me both personally, in my business, and in my day job business greatly. Sure I spent nearly $8000 defending myself and in the end I won, in more ways than one!
One of the greatest things I learned is that you can copyright a thing but never an idea. You can copyright a design and you can trademark something, but you do not own the color in your design simply own the design that relates with the color. I was specifically told by my lawyer that I can make something similar provided there is a significant enough difference in the design or that I don’t outright use a copyrighted character or item. I did specifically ask at that time about copyrighted characters and his response was this:
“Making the design significantly different from the original copyrighted item is legal. However, you need to remember that this is a free world and nothing will ever stop someone from pursuing their right to sue you whether they are right or wrong.” Let’s face it you can make a wrapper that looks similar to someone else’s graduation wrapper and if that other person feels that it is close enough to resemble yours there is nothing stopping them from attempting to sue you for it.
Makes no difference whether it is a copyrighted cartoon character or a simple graduation wrapper design. We perceive it differently since copyrighted characters are typically associated with large corporations, like Disney or Nickelodeon, with, let’s face it, pretty much unlimited flows of money. But nothing makes one more right than the other and will never stop even the smallest mom and pop company with a cousin lawyer fresh from law school doing Uncle Bob a favor on his/her first case!
So with all that said, in my PERSONAL opinion there is NO difference in faux wrapper vs. other designs. A significant difference is a significant difference and therefore is legal.
And should anyone want the information on the lawyer I used you can see his information here http://hershlegal.com/
Hope my 2cents and past experiences help!”
~ If you choose to use any inspired by graphic, you agree that you are using them at your own risk. Wrapcandy cannot determine if a design is “Significantly Different” or not. Even if it is significantly different, this is a free world and there is nothing stopping a company from pursing their copyrights. ~
*Please note that I do not have a degree in copyright law. This information is to be used as a guide and not as actual facts of law. I encourage you to talk with your own copyright lawyer for more information before using or selling any inspired by images.
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