I wish to sell items made with nfl licensed fabrics, etc., or other licensed fabrics. I would not be copying the image, but rather using the purchased fabric, that I paid for, to make the item to sell. If I won't be copying the fabric, how is that infringing on copyright laws? The way I see it, I would be giving them free advertising. The more I sell, the more of the licensed fabrics, etc., I would buy. It would be a win for all. Free PR work. I would be promoting them for free. Can a disclaimer be used to make it legal?
Look at the license on that licensed NFL fabric: you'll see it says the fabric can be used for PERSONAL, not COMMERCIAL use. That means you can make all the things you want for your own use, but you can't make things out of that fabric that you sell.
That's not because of copyright infringement, it's because of TRADEMARK infringement, which is based on the likelihood of confusion your products would create. The NFL spend a fortune marketing their own products, and they don't want competition and they don't want your free advertising or PR. They can't control the quality of your goods, unlike the way they can control the quality of their own merchandise, nor can they control which goods you decide to make and sell. They don't want anyone buying your products thinking they're official NFL merchandise, endorsed by the league and using the league's quality standards. If your products fall apart after 1 use, for example, or you make something they wouldn't make because it doesn't fit their branding, it's the NFL whose brand is damaged, not yours. Your brand hasn't gotten the vast investment of money and effort that the NFL has.
My colleague Attorney Natoli argues that unless you've agreed to the restriction of the license, you're not bound by it. I don't know of any case law that supports that argument, and I think the act of buying the fabric with its prominent restriction creates a contract. So even if you put a very prominent disclaimer on your goods' labels and marketing material, saying "NOT AFFILIATED WITH THE NFL," and you were able to argue that no consumer could reasonably believe that your goods were official NFL merchandise, you'd still have to defend a lawsuit brought by a very well-funded league that doesn't want competition for its fans' dollars and will argue that even if no consumer is confused, then the quality of your goods is inferior to theirs and dilutes their brand.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments.
The issue is that while the fabric is licensed, it is intended only for your personal use. You can free to make anything you want from it so long as you are not placing those things in commerce. But when you make items like say handbags that now have NFL trademarks and logos affixed to them you present a false association, sponsorship, endorsement or other affiliation with them but the NFL has not endorsed your handbag. In fact, makers of bags pay the NFL fees to be able to place that logo on the product.
If you need clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Legal, LLC on the basis of this posting.
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