Am I infringing copyright by repurposing old goods?

September 22, 2012 12:55 PM

I have some questions about crafting and copyright. If I make objects out of old boardgames and then sell them online, am I running afoul of any copyright or trademark laws? As a contrived example, let's say that I make a lamp out of a Monopoly game, using the actual game board and pieces. If I try to sell it on Etsy, would Hasbro have any kind of claim against me?

You are not my lawyer and this is not legal advice, but I'm having trouble tracking down legit information online and could use some assistance. I keep finding forum posts that use the term "found art", as well as many suggestions that as long as I'm substantially altering the item and not selling it as a board game, then I should be fine, but I'd feel better if I could find a source that was more reliable than Joe Schmoe on the internet. Pointers to reliable references explaining the legality of this would be appreciated. Thanks!

posted by chrisamiller to law & government (10 answers total)

IANAL, but in the situation you describe, the right of first sale should solidly apply to protect you here - As long as someone legitimately bought that specific monopoly board (as opposed to "I bought one so now I can make as many copies I as I want), Hasbro has no say in what the buyer (and in turn, you) decide to do with it. Including modifying it and reselling it.

That doesn't mean they couldn't try to make your life miserable if you somehow made it to national fame using their products - Google "barbie lawsuit" for a million examples. You may take some comfort, though, in knowing that most of the "little guys" with obviously-artistic uses of Barbie, that dared face the behemoth in court, have won.
posted by pla at 1:12 PM on September 22, 2012

Are the citations in appropriation (art) helpful? The first thing I thought of was Andy Warhol's Campbell's Soup Cans, though it's not quite the same thing.
posted by XMLicious at 1:17 PM on September 22, 2012

IANAL

Thanks to first sale, you might not violate copyright but if they sell officially licensed lamps, Hasbro may still have a trademark claim against you selling a Monopoly lamp. This comes up sometimes with licensed fabrics, for example there are Star Wars fabrics, but if you sell shirts made from Star Wars fabrics, they might try to shut you down for selling unlicensed Star Wars shirts.
posted by RobotHero at 2:40 PM on September 22, 2012

Games manufacturers have vigorously attempted to protect their rights over their products. As you can see from this case involving Mattel and its range of Barbie dolls, they haven't always been successful. Keep in mind that it's over a decade old, the law may have changed, and the facts of your case are different - you're not parodying the object; but by the same token you're not making fun of them and are therefore less annoying.

You need to keep two things in mind: can I afford to have them make an unsuccessful (or even frivolous) claim against me? If they do take action against me, what is that action likely to be? IANAL, but my feeling is that most people do not want (or are not able) to defend themselves in a legal fight against a multinational company; none the less, in this case it is very unlikely that you would get more than a standard letter from their lawyer in the first instance, at which point you could decide whether or not you wanted to keep making art incorporating the board games.
posted by Joe in Australia at 6:37 PM on September 22, 2012

This answer is based on US law. A lot of people think that copyright only includes the right to copy. I'm not an IP lawyer but I think a plain reading of 17 U.S.C. § 106 means that your proposed work is probably a derivative work, which is defined in this statute. Section 106 gives the copyright holder the exclusive right to do and authorize the preparation of derivative works. Does this mean you would automatically lose an infringement suit? No...but as someone else said here, can you afford to fight them?
posted by missouri_lawyer at 10:03 PM on September 22, 2012 [1 favorite]

The forums on etsy.com would be a great place to ask. If someone has had an issue, they'll be able to tell you about it. http://www.etsy.com/teams/7722/business-topics/discuss/
posted by miniape at 10:59 PM on September 22, 2012

You can go to your employer's law library and look up the derivative work issue in a dead-tree version of Nimmer on Copyright, but it might not be up-to-date. The trademark issue sounds like a bigger problem, though.
posted by grouse at 9:02 AM on September 23, 2012

You should also research issues of Trademark which is a very distinct area of law from copyright. You're more likely to be violating their Trademark by publicizing a competing product based on their product than you are to be violating their copyright given that you aren't actually making copies.
posted by jacquilynne at 4:15 PM on September 23, 2012

"Competing" isn't really the word I wanted to use there. Just "different".
posted by jacquilynne at 4:17 PM on September 23, 2012

Thanks, everyone. I also found this post, which seems to describe the legality of using board and card games in crafts. We're also contacting some other people through Etsy to see what their experiences have been.
posted by chrisamiller at 7:37 PM on September 24, 2012