# Copyright question



## William Menard (Mar 31, 2014)

If I take a broken Mickey Mouse watch and break it down to make a steaampunk pen, is there a concern of copyright from Disney? TIA


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## Jgrden (Mar 31, 2014)

Yikes.  I would have done ti without another thought. ,


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## PSNCO (Mar 31, 2014)

If you're not going to sell it, you're fine.


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## plano_harry (Mar 31, 2014)

What about people who sell art made with bottle caps - or picture frames made with famous wine corks


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## Edgar (Mar 31, 2014)

You own it - you can do with it what you want, including selling it in whatever shape or form you want. Infringement only comes in if you make a counterfeit dial or use the Disney names in an inappropriate manner.


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## Joe S. (Mar 31, 2014)

What about my Mario pen?


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## mikespenturningz (Mar 31, 2014)

I also think you cannot use the name as a selling point. Some things you don't have to say though. If I were to make one I would just make sure it is visible. You can't claim it is a Mickey Mouse pen for instance because it isn't licensed by Disney.


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## SynchroPENsity (Mar 31, 2014)

It's not a question of copyright, but of Trademark. If you are making it for your own purpose, there is no issue. If you intend to sell it, you could have a problem. It isn't so much of whether you call it a Micky Mouse pen, but of whether a consumer might be confused about the source of the pen or whether selling the pen would dilute Disney's brand. If you're only making one, it may technically be trademark infringement, but it would be deminimus infringement.  If you were going to make a lot of them, you would run into more of an issue. That said, owners of famous trademarks have to be vigilant about protecting their brands, so be careful.


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## Smitty37 (Mar 31, 2014)

If you are only making one - whether you use it or sell it there won't be a problem.  First, because it is yours and trademarks can't be enforced against a buyer who acquired the pen legally.  You can resell it in any form you like. 
And, recycling a broken watch instead of tossing it in a landfill even has some social value.

If you plan on buying a quantity of broken MM watches and making a bunch ot the pens - don't do it.


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## jeff (Mar 31, 2014)

Smitty37 said:


> If you are only making one - whether you use it or sell it there won't be a problem.  First, because it is yours and trademarks can't be enforced against a buyer who acquired the pen legally.  You can resell it in any form you like.
> And, recycling a broken watch instead of tossing it in a landfill even has some social value.
> 
> If you plan on buying a quantity of broken MM watches and making a bunch ot the pens - don't do it.



Why would that be a problem? Can't he market the pens as "pens made with Mickey Mouse watch parts"? As long as I'm using the genuine article produced by Disney, which I own free and clear, I'm not sure where the issue is. I'd even go so far as to argue that I'm actually raising the brand awareness because I'm putting Disney-trademarked materials in the marketplace instead of a landfill. They owe me money :biggrin:


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## SteveG (Mar 31, 2014)

I think they owe me money just for reading about this. Where do I collect?:tongue:


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## denniszoomy (Apr 1, 2014)

I think a lot of us would be in trouble if this was true, with making decal pens with certain pics or characters, or even stamps.


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## Smitty37 (Apr 1, 2014)

jeff said:


> Smitty37 said:
> 
> 
> > If you are only making one - whether you use it or sell it there won't be a problem. First, because it is yours and trademarks can't be enforced against a buyer who acquired the pen legally. You can resell it in any form you like.
> ...


You might well have a valid point -- I'd consult CaptG.....if I were thinking about it.  One would think that Disney would have no interest in what happens to old broken Mickey Mouse watches - but they might object to someone making a profit from the name -is the MM incidental to the pen i.e. just one of many choices or is it a selling point.  I think if it is a selling point, they will object to the change of use...


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## Marko50 (Apr 1, 2014)

I'm selling this as a pen with a really cool medallion cast in clear resin. End of story. Just my .02¢


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## Indiana_Parrothead (Apr 1, 2014)

Smitty37 said:


> jeff said:
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> > Smitty37 said:
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Doesn't Capt G make Watch parts pens from Rolex's isn't that the same concept? 

Mike


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## beck3906 (Apr 1, 2014)

Something to read more about.  You should research this yourself.  Google "trademark infringement craft shows" for more.

Reusing an item may be one thing.  Maybe creating a decal is another? 

Criminal Resource Manual 1854 Copyright Infringement -- First Sale Doctrine

I am not offering this as any form of a legal opinion.  

There was an interesting thread from 2007 where representatives from OU and OSU took merchandise from several vendors at a show in Oklahoma City.  Seems prosecutors considered changes against the school reps.


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## mredburn (Apr 1, 2014)

I believe the issue is when you use a trademarked item in your newly manufactured product as the selling point of that product without the owners permission your infringing on their rights.  I have clients that want to use Mont Blanc parts and or Pelikan feeds and nibs in making their own pens and they will sue.


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## Smitty37 (Apr 1, 2014)

Indiana_Parrothead said:


> Smitty37 said:
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> > jeff said:
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Yes, that's why I'd consult him.


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## plano_harry (Apr 1, 2014)

How about pens from fake Rolexes?


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## mredburn (Apr 1, 2014)

Not a problem Harry just put them in a fake pen!:biggrin:


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## Gregf (Apr 1, 2014)

Here is an interesting article on the subject.
http://www.hollandhart.com/files/Pu...cb7-d0914875921c/Trash_Treasure_Upcycling.pdf

And this.

Arts Law : Article : Upcycling in fashion and staying legal

Search on upcycling and trademarks


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## Joe S. (Apr 1, 2014)

A mickey mouse pen is one thing, but would selling a super mario pen be copyright infringement? I've seen lots of nintendo themed hand-made products, but they only seem to sue when it's software...

Just wondering because I've gotten an offer or two for a custom mario pen after showing mine off.



mredburn said:


> I believe the issue is when you use a trademarked item in your newly manufactured product as the selling point of that product without the owners permission your infringing on their rights.  I have clients that want to use Mont Blanc parts and or Pelikan feeds and nibs in making their own pens and they will sue.



Wait, they sue people for taking parts off of their pens and reusing them?


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## Smitty37 (Apr 1, 2014)

mredburn said:


> I believe the issue is when you use a trademarked item in your newly manufactured product as the selling point of that product without the owners permission your infringing on their rights. I have clients that want to use Mont Blanc parts *and or Pelikan feeds and nibs in making their own pens* and they will sue.


Pielkan can't sue - they sell nibs and feeds as a separate item.  Mont Blanc has a couple of things on their pens that identify them as Mont Blanc so for those spicific parts (I think the clip is one of them) they will likely take action to protect their rights although if it is for personal use they don't have actionable cause either.


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## Joe S. (Apr 1, 2014)

If these guys can do it, there must be a legal way around the copyright issue.

Sorry if I seem to be hijacking the thread, but this seems related.


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## Smitty37 (Apr 1, 2014)

Joe, If I legally buy a Nintendo (either new or used), I can resell it under its own name as long as I sell it in the original configuration.  There is no trademark or copyright issue.  So that site looks perfectly ok to me.


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## mredburn (Apr 1, 2014)

I have an email from my client who spoke to Pelikan, and their response was they would sue.  If you use their branding or Name and/or logo as a selling point for your product for resale they will come after you. None of this is about personal use but resale of trademarked merchandise.  I worked in the jewelry industry many years and if Rolex finds fake parts, or watches they confiscate and destroy them. They will aggressively pursue any and all unlicensed activity they find.


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## mikespenturningz (Apr 1, 2014)

Hey Greg that was a great article. Thanks for posting a link to it. I read the entire thing, it was actually very good reading.


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## monophoto (Apr 1, 2014)

I'm not a lawyer and I don't play one on TV.

My view is that this is a potential trademark issue.  Obviously, if you take the low profile route - make only one and don't sell it - its is unlikely that you would encounter a problem.

But keep in mind that trademark (and copyright) laws aren't criminal offenses - they are civil matters.  If the rightful owner of the trademark or copyright chooses to try to make an example of you, you will be forced to defend yourself and that probably means hiring a lawyer to represent you in the legal action.  The threat of forcing the little guy to incur the costs of defending himself is the hammer that big outfits like Disney use to keep the little guys in line.


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## Smitty37 (Apr 1, 2014)

mredburn said:


> I have an email from my client who spoke to Pelikan, and their response was they would sue. If you use their branding or Name and/or logo as a selling point for your product for resale they will come after you. None of this is about personal use but resale of trademarked merchandise. I worked in the jewelry industry many years and if Rolex finds fake parts, or watches they confiscate and destroy them. They will aggressively pursue any and all unlicensed activity they find.


Mike, for something over $9000 one can buy their nibs (one particular model) in quantities of 50 at retail.  

The nib is a part of a fountain pen and once they retail it they can't retain control over what fountain pen it is installed on nor can they prevent the sale of that fountain pen nor can they prevent one from saying the fountain pen is equiped with a Pelikan Nib.  

Consider the nib as being like a spark plug - one buys the spark plug and installs it on any engine they want and then sells the engine the maker of the spark plug has no recourse against the engine seller even if the seller names the spark plug brand in his ads.  If they don't want a pen maker to use their nibs, then they can't sell them to the pen maker.


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## mredburn (Apr 1, 2014)

I dont disagree with that Smitty.   And I will question him further to see if they gave the grounds on which they would pursue it. In their case it may be a bluff, although my client said he had talked to other people as well.


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## Smitty37 (Apr 2, 2014)

mredburn said:


> I dont disagree with that Smitty. And I will question him further to see if they gave the grounds on which they would pursue it. In their case it may be a bluff, although my client said he had talked to other people as well.


 Mike, I think you nailed it.  Companies will bluff about things like that.


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## low_48 (Apr 2, 2014)

Smitty37 said:


> mredburn said:
> 
> 
> > I dont disagree with that Smitty. And I will question him further to see if they gave the grounds on which they would pursue it. In their case it may be a bluff, although my client said he had talked to other people as well.
> ...



From what I've read, Disney doesn't bluff. Disney characters are registered trade marks. Pretty sure selling product with registered trade marks on it will get their attention. Maybe bringing it up on a public forum will do that anyway!
Found this statement in a Google search;
Basically, if you paint, wear, or otherwise display something that a company believes to be its trademark (especially if that company happens to be Disney), you may have opened yourself up to a claim of trademark infringement.

You decide if it's worth it to you!


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## monophoto (Apr 2, 2014)

Let's separate TRADEMARK issues from COPYRIGHT issues.

A trademark is a recognizable symbol that identifies that the item was produced by a known manufacturer - notable examples include the GE monogram, the Coke logo, the the IBM logo, the symbol used to identify audio equipment with Dolby noise reduction, the white Montblanc star, etc.  If you make a pen and use a recognizable trademark without permission, the owner of the trademark has legal grounds to challenge you for misappropriate of trademark.  The theory behind that is that in misappropriating the trademark, you imply to purchasers of that pen that it was made by the owner of the trademark, which then diminishes the value of the trademark and the value of the trademark owner's other products.

Copyright is the legal right of the author (maker) of a work to benefit from that work.  When you make a pen, you automatically own the copyright to that pen - you don't have to do anything claim that copyright although there is a process in place to record that claim with the US Copyright Office.  If you buy a pen made by someone else (eg, Montblanc), and then resell it while making it clear that it is a Montblanc pen, there is no problem.  But if you buy a Montblanc pen and then resell it claiming that you made it, then there is a copyright violation and Montblanc has the right to come after you.  The theory behind this claim is that in claiming that you made the pen, you stole the design from Montblanc.

The third related concept is PLAGIARISM.  Plagiarism is theft of ideas, but the concept is so fuzzy that it is an ethical matter rather than a legal issue.  Plagiarism is where you create a work in which you copy ideas that originated with others.  In the case of a written work, plagiarism is using words that originated with others but without clearing giving credit to the source of the words.  Paraphrasing the words of others without attribution is also plagiarism, but that's an even fuzzier concept.  It's really hard to apply the concept of plagiarism to something like pen making - there's absolutely nothing wrong with making a copy of a pen made by someone else, but there would be an issue if you then claim that the pen was actually made by that other person.


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## Smitty37 (Apr 2, 2014)

low_48 said:


> Smitty37 said:
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> > mredburn said:
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If Disney sold you the product originally - they lose.  They just lost a big case where they sold cloth with a trademarked design on it...someone made pillow cases out of the cloth and sold them.  Disney sued and lost.  In essance they were told, if you sell it you sell the right to use it.  Most people do not realize that if they are on sound ground as to how the item was acquired it is not difficult to find a legal rep who will work on contingency and counter sue for attornies fees and court costs.  In the case of Goliath vs David the courts will almost always award David the costs if he wins.


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## longbeard (Apr 2, 2014)

Seen this in the news this morning.



Disney Investigating Deadmau5's Attempt to Trademark Mouse Logo | Music News | Rolling Stone




Harry


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## tjseagrove (Apr 2, 2014)

jeff said:


> Smitty37 said:
> 
> 
> > If you are only making one - whether you use it or sell it there won't be a problem.  First, because it is yours and trademarks can't be enforced against a buyer who acquired the pen legally.  You can resell it in any form you like.
> ...



A good disclaimer would be...

**********
This is not a licensed Disney product.
It is however, hand-crafted from licensed Disney watch parts.
I am not affiliated with or sponsored by Disney Enterprises.
**********

That comes from Trademark Law - Disclaimers - Tabberone Disclaimer

She has been to court with Disney and won on similar issues.  Below are just some of her victories...

Warner Brothers
M&M/Mars
Disney Enterprises
Major League Baseball Properties
Precious Moments
Sanrio (Hello Kitty)
United Media (Peanuts)
and more.


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## kovalcik (Apr 2, 2014)

I think the real issue is that all these companies either hire big law firms or have their own internal groups and their paycheck depends on them finding "trademark violations".  It costs them very little to send cease and desist letters or have Ebay pull an item off auction, so they do it at the drop of a hat (especially if the hat has a picture of Mickey on it).  Do they reallly have a case?  Who knows.  Most people just don't want to deal with it so the companies are not challenged.  In many cases concerning the purchase and resale of licensed items,  when they are challenged as in Smitty's example, they lose.   

To get back to the OP's question though, IMO  if you want to make a single pen from your Mickey watch and keep it personally or sell it at a craft fair along side other watch part pens you will be fine as long as you don't advertise it as a Mickey Mouse pen.


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## William Menard (Apr 2, 2014)

so this could end up being ridiculous, if I make a realistic cigar and glue a band on it, what happens now? This keeps getting better and better, can't wait to see comments on this.


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## Woodkiller (Apr 2, 2014)

No matter what you make with whatever previously manufactured pieces, my understanding is that as long as you advertise/list/describe/promote it as your handiwork using said licensed pieces and not affiliated with the license holder you should be fine. There might be cases where you are harassed or threatened, but more than likely you will be fine as they shouldn't have a legal leg to stand on. 

I am not an attorney and only have basic common sense, so take that for what it is worth.


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## mredburn (Apr 2, 2014)

It would not be ridiculous if it was your trademark they were using  and you were the one that put all the time, effort, and money into making a nationally recognizable brand or product. If the disclaimer is a viable way to do what you want to do, then use it.  But yes if the Cigar band pens could be confused as a product of the original manufacturer you could be liable.


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## tjseagrove (Apr 2, 2014)

longbeard said:


> Seen this in the news this morning.
> 
> Disney Investigating Deadmau5's Attempt to Trademark Mouse Logo | Music News | Rolling Stone
> 
> Harry



From yesterday (Apr 1st)??   :biggrin:


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## Joe S. (Apr 2, 2014)

So the moral here is don't make your cigar pens TOO realistic? :biggrin:


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## Smitty37 (Apr 2, 2014)

Not too likely that the band on a pen would be confused for a cigar...also it can be a case of - no harm, no foul.  Courts are not likely to be very sympathetic with tobacco products, particularily if they go to a jury.


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