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What's with the name?

Allow us to explain.

i swear by my pretty floral bonnet i will end you

UPDATED: Are You A Firefly Fan Who Makes Jayne Hats? Watch Out, Fox Is Coming For You.


As if Firefly fans didn’t hate Fox enough already, it seems a newly licenced Jayne Cobb hat has started a chain reaction of cease and desist notices to Browncoats who make them for fun. Gorram… 

Let’s just get this out of the way first: Fox owns Firefly and as the rights holder they are allowed to do whatever they want with it and its ancillary products.

That being said, this is an unfortunate day for fans.

[Editor's Note: We've been asked to remove the names of those involved.]

A seller of Firefly fan items who prefers to remain anonymous, wrote a rant on Facebook about a situation that’s recently come to light. Apparently Fox have just now started sending out cease and desist letters to them and other independent craft/fan sellers. Specifically sellers of Jayne hats and specifically sent to individuals who’ve been selling them for eight + years with no issues. They write, “These are not big money making companies, but single women, moms and retired ladies that have made them because they love the show and are creative people. They weren’t making fortunes, maybe pocket money or the funds that got them from paycheck to paycheck. Now they are not only making nothing monetarily, but they no longer have an outlet to sell anything else the make because etsy banned them.”

Etsy banning users without warning or explanation is not new. They randomly cull users they find infringing on copyright but this particular instance seems to have a source. Blastr writes, “Ripple Junction, a company which produces licensed apparel, obtained the rights to mass produce the Jayne Hat. It instantly became a hit seller on popular nerd sites like Think Geek. It seemed that getting a Jayne hat was easier than ever. But that ease came with a price.”

Blastr says they reached out to both Ripple Junction and Think Geek who said they had no part in sending the cease and desists. But from all accounts, it’s not just creators of home-made Jayne hats being taken down but creators of all types of Firefly related products.

That initial post by the seller seems to have been deleted in the midst of writing this story but now has a follow-up [Edit: This has also been deleted.]:

Someone (great gorram I wish I knew who) reported independent shops to Ripple Junction. As an official license holder, once Ripple Junction was made aware of these shops they must, by contract, report them. FOX legal department, in doing their job which they should (because lets face it they have artists to protect too), sends Etsy the legal notification. The closed shops are the ones specifically brought to the attention of Ripple Junction. The other C&Ds Etsy is issuing are the “we are covering our butts” warnings.

Again, legalities are legalities but it’s unfortunate fans of the beloved series are being targeted so long after the fact, especially when you consider the love behind, and that goes into, the making of a Jayne hat.

[UPDATE]

Think Geek has posted the following statement on their website:

Our dear Browncoats,

We’ve heard the news that FOX, the licensors of Firefly merch, is sending out cease and desist notices to Etsy sellers who carry their own cunning hats.

We just wanted you to know that ThinkGeek has nothing to do with the C&D notices. The hat is licensed by a vendor with whom we have a relationship and while the hat is not an exclusive to ThinkGeek, we did have a hand in its development and answered the difficult questions like, “Are the earflaps long enough?” and “Is that man afraid of anything?” (Yes and no, respectively.)

Would the C&D have happened if we did not carry the hat on our site? We’re not sure; we’ll leave that question to sharper legal minds than ours. We’re here to carry the shiniest of goods from ’round the ‘verse, even maybe makin’ them ourselves. We just want y’all to know that while we might not always aim to misbehave, we’ll always be sure to get you the best stuff this side of the Eavesdown Docks.

The way we see it, if people want to make their own, shiny. For those out there who can’t knit to save their gorram lives, we can help.

(Whedonesque via Blastr, image via Plastic and Plush)

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  • http://twitter.com/urbansuburbia Marie

    I believe this has been happening with Dr. Who scarves (I think scarves, but maybe other products as well) for a while. It sucks that it’s gone so far that people are getting banned. That doesn’t seem right.

  • http://www.facebook.com/CelestialAxis Sarah Nelson

    Not just Jayne hat sellers. My Firefly jewelry on Etsy got shut down by Fox too. I closed my whole Etsy shop and I’ll sell elsewhere.

  • http://www.facebook.com/profile.php?id=708927181 Debbie Valenta

    Considering how easy these hats are to make and how incredibly basic the design, I’m flabbergasted Fox is even bothering to make the effort. And how incredibly shitty of Etsy to go all all Facebook and not even give people the chance to remove the items before shutting them down.

  • http://www.thenerdybird.com/ Jill Pantozzi

    It happens with all types of products on Etsy all the time. And they just ban you, there’s no, “stop selling this because this is the problem.” You’re just out of a shop entirely. You can’t even purchase anything on Etsy after being banned.

  • Anonymous

    Boooo. I bought mine on from a lady calling herself “Ma Cobb” on Etsy, and she gave me a better experience than Fox ever could. First, my hat is the best quality and most legit looking I’ve ever seen. Does Fox even sell them? If they do/will, commercial retailers have a tendency to produce merch that is of low quality and doesn’t look like it came off the screen (unless you are willing to pay big bucks – when they have a deluxe version). Second, she packed and delivered it in such a way that you felt you really were Jayne receiving a hat from his mom. She included a letter and stamped the box with blue sun logos and everything. Third, she threw in some freebies (buttons, magnet) as well.

  • Bagel Garrison

    https://www.facebook.com/FireflyCargoBay
    The correct link for Firefly Cargo Bay

  • Anonymous

    I won’t be buying their product. My wife made mine, and it looks better thanthe example above.

  • Travis Fischer

    “As if Firefly fans didn’t hate Fox enough already”

    Nothing more to be said.

  • http://www.thenerdybird.com/ Jill Pantozzi

    Was there an incorrect link in here? All the links go directly to the specific posts.

  • Helen D

    Mine was hand knitted for me by my grandmother. No way I’m buying their gorram products, they’re even more childish than Saul Zaentz trying to sue a pub because it was called “The Hobbit”…

  • http://www.djcube.co.uk Cube1701

    “Fox owns Firefly and as the rights holder they are allowed to do whatever they want with it and its ancillary products.”

    However, according to US copyright law, you can’t copyright clothing. So it’s perfectly fine to sell the hat design.

  • http://www.facebook.com/karen.paddison.5 Karen Paddison

    please don’t try to link the post again, thank you. I made the post in frustration because my friends were losing their shops and have deleted it because, well, the story has taken on a life of it’s own.

  • http://www.facebook.com/karen.paddison.5 Karen Paddison

    the specific posts have been deleted by me because the story is standing on it’s own now. I was upset that friends had lost their liveltyhood. I forgot how fast the internet spreads things. It was personal and emotional. The posts are gone now. Thanks :)

  • http://zadl.org/ Captain ZADL

    That seems excessively unfriendly of them.

  • http://www.facebook.com/profile.php?id=1059360931 Jessica Orsini

    Considering that the original “Jayne Hat” was bought off the shelf by a staffer who was told to go get the ugliest knit hat he could find, Fox really doesn’t have a case here; the product was pre-existing.

  • Jessica

    Wonder if the one we made for the cat counts as infringement…

  • http://www.facebook.com/jennifer.pawlik.9 Jennifer Pawlik

    This happened to my brother. He’s an independent leatherworker trying to make money on the side and they just pulled all of his listings from Etsy.

  • http://www.facebook.com/karen.paddison.5 Karen Paddison

    all posts have been taken down by me because it was a personal emotional reaction. I didn’t plan on the story getting it’s own life

  • http://www.facebook.com/genevieve.e.hodge Genevieve Elena Hodge

    Ha, these kind of hat have been made decades, perhaps centuries before Firefly was made. As, long as they don’t have the firefly logo on them, they can’t be touched. It’s like stating no one can have a haircut the same way as any of the characters.

  • http://www.djcube.co.uk Cube1701

    Fox started selling them pretty recently. For $24.99.

  • Anonymous

    Same price I paid for mine. I can’t find it in their shop to compare quality from the picture, but they definitely aren’t going to include the same loving care. Probably just a catalogue leaflet.

  • Anonymous

    And even if they did have a copyright—you have to enforce it, or it isn’t valid. People have been making these hats for eight years. You can’t suddenly start sending out cease-and-desist letters.

    This whole thing is legally ridiculous. Any interaction between copyright law and the internet is like banging your head into the wall until your brain is a soft paste.

  • http://www.facebook.com/people/War-Apocalypsewriters/100002216515410 War Apocalypsewriters

    10 years later and NOW they are going after the fans?

  • http://www.facebook.com/people/War-Apocalypsewriters/100002216515410 War Apocalypsewriters

    A normal reaction to such bullshit.

  • http://www.facebook.com/paul.giachetti Paul Giachetti

    Wow, at least CafePress just blocks offending designs, they don’t pull the plug on your entire operation… it seems pretty counter-intuitive for Etsy to just blacklist people like that, maybe the negative press they’ll be getting over this will make them change their policies. Personally I’m glad I don’t deal with them.

  • Bellby

    Same thing happened to me, for Firefly jewelry that I’d made. They didn’t take down my whole shop (at least not yet), just removed my listings. I’ve been wanting to talk about it for weeks but have been afraid to tweet or post on FB bc I don’t know what I’m even allowed to say, as Etsy directed me not to “publicly discuss” the issue. (Which is why I’m naming no names or specifics.) I’ve been thinking of relisting the jewelry and simply removing any descriptions even remotely related to Firefly, to make it all more generic–but of course it will be harder for people to find my work, and on top of that if I repost these listings and Etsy still deems them infringing, they’ve said they’ll close my shop.

    Fox is allowed to do what they want with their IP of course, which includes telling me to stop–but it still bums me out because I enjoy making fandom jewelry in my spare time, and selling off my one-offs allows me to continue with my hobby, even if there’s no profit beyond “pays for supplies.”

  • http://www.facebook.com/daniel.outhier Dan Gerous

    Between this, the RPG from Margaret Weis, and the board games, it makes me wonder if Fox has something big planned.

  • http://www.facebook.com/amanda.manick.3 Amanda Manick

    I don’t see why they feel the need to go after people on etsy or ebay selling these hats, but I can see them going after anyone making a legitimate business out of making and selling firefly props/reproduction items. Those woman on etsy are not out to make a living out of their creations, they are just doing something fun on the side. I know this is a different company, but a site that was selling Charmed replications and items was recently shutdown by cbs. Fans are pissed, but the law is the law and they have a right to go after who ever they want I guess.

  • http://twitter.com/random_tangent Drew Coombs

    You’re thinking of trademarks, and also that’s not entirely true.

  • http://www.facebook.com/JohnathanBrowning Johnathan Browning

    Yeah and if they keep doing this no one will use their site.

  • Bam

    It happened to me. I got a C&D a couple of weeks ago from Etsy. Although they just took down my Jayne hat and not my whole store. I closed my store, myself, and said “To hell with Etsy AND FOX!” Honestly, I was flattered that FOX felt I was such a threat to their empire.

  • http://www.facebook.com/anna.snyder.71 Anna Snyder

    It’s ThinkGeek, not FOX, and it’s fairly well advertised on their website.

  • Anonymous

    Since this style of hats are all over Scandinavia (and popular because of the ear flaps), is FOX going to next sue Norway, Sweden, and Viking culture?

  • http://www.facebook.com/fbromley Frank Bromley

    so if you make em just call it a “Hat from mom” and sell it in other colors other than the name there’s nothing overtly firefly about them

  • http://www.facebook.com/profile.php?id=674777440 Wiccy Christina

    Unless you are under a judicial gag order you are well within your legal rights to discuss anything about the matter you like. It doesn’t mean, of course, that Etsy can’t get vindictive and ban you because they want to (they are a private company and can do whatever they want without any explanation), but it bothers me when I see people afraid to speak out because they’ve been bullied and intimidated by companies into not knowing their actual right.

    As for your jewelry, I’d wait a little while and a couple without the firefly related tags.

  • http://www.facebook.com/profile.php?id=674777440 Wiccy Christina

    Yes, it’s actually the exact design coupled with the Firefly and/or Janye Cobb name that makes it “infringing” if someone had a hat listed as “Orange, yellow and red knitted hat” without any tags or reference to FIrefly, they would be fine (legally), again, Etsy can still choose to ban this items and/or the people who make them if they want and their isn’t much anyone can do about it, but legal, those sellers would be safe.

  • http://www.facebook.com/profile.php?id=674777440 Wiccy Christina

    What does he make that got him pulled?

  • http://www.facebook.com/mike.cassandra.3 Mike Cassandra

    I think that they may if it’s being marketed with any terminology that references the show or characters in particular. I’m not defending them. Just predicting what their response would be.

  • Red Angry Bird

    As an IP attorney, a Firefly fan, and a knitter, this makes me SO LIVID. I can’t even begin to describe how irrationally angry it makes me. Yes, you can copyright fashion designs (like blueprints), and I suppose they could trademark the way the hat looks, but I find it tenuous at best. I think if people wanted to fight this, they could. But by going after your individual knitters who might be making a few dollars on the side, they’ve almost guaranteed themselves a revenue stream without too many questions asked. GRRRRRAR.

  • http://twitter.com/TychaBrahe TychaBrahe

    If Etsy doesn’t, they may be held liable.

  • http://twitter.com/sergei Sergei

    First thing every morning, Rupert Murdoch tries to figure out a way he can be just that little bit more evil.

  • http://www.facebook.com/drazik.lokelinde Drazik Lokelinde

    All right, I understand the whole licensing thing. It is what it is, but why get them banned from etsy? That’s just capital doucheness.

  • Joseph Marshall

    Good point. But overall, more news that Fox Broadcasting is an evil company, owned by an evil billionaire-tyrant.

  • CCIFan

    You mean Fox sent out a fake DMCA notice to stop someone? That must mean the other companies like Universal and Warner Brothers must be above all that, right?

  • Anonymous

    Agreed. Never read the Etsy terms of service…but pretty sure Etsy’s only recourse against an accurate telling of what happened would be banning the person’s account.

  • http://twitter.com/TychaBrahe TychaBrahe

    Unfortunately, if you don’t protect your trademark, someone can come along and use it commercially and argue, when you sue, that you apparently no longer care because you previously failed to defend it. Disney doesn’t actually think that day cares with Mickey Mouse painted on the wall are a threat to its corporation, but if it doesn’t sue to have the graphic removed, at some point someone could say, “I can use Mickey Mouse in a movie without licensing it from Disney, because they don’t care about the property, based on their failure to defend it.”

  • http://twitter.com/humeruswares Humerus Wares

    I’m an Etsy seller who was doing Mudder’s Milk steins and a few other FF inspired mugs & whatnot, and most of my items were pulled and I pulled the rest of them. The thing is – it is actually LEGAL to sell a Jayne hat, but you can’t market it as a Jayne Hat. They can’t copyright the actual design itself… but the problem is, without being able to market it as a Jayne hat, no one who is looking for a Jayne hat will know where to buy it. I’ve often thought if I won the lottery I’d set up a company to buy licensing rights for shows like Firefly/Dr Who or whatever and figure out how to then license individual little guys like myself.

  • Anonymous

    Like Coombs said…Copyright doesn’t extinguish through a lack of enforcement…only trademark.

  • roguescribner

    The original hats (there were two made) were knitted by a Mutant Enemy staffer expressly for the show. They were not store bought. Adam Baldwin kept one of them and then later auctioned it off for charity.

  • http://www.facebook.com/arthurstruss Amanda Arthur-Struss

    There is a new website out there that is called Goodsmiths.com. As a crafter I moved there after not liking where Etsy was going with some of their costs. Goodsmiths is only in the US right now but hopes to expand. It is designed for makers. Hopefully some of these people will find their way there.

  • http://profiles.google.com/cola82 Nickola Johnson

    I’m curious what the implications of this kind of thing are for sites like Spoonflower, which is nominally opposed to infringing material but is home to a lot of fan based designs. Unlike Etsy, there’s almost no overhead for designers on Spoonflower (and designers earn tiny commissions, comparatively).

  • Anonymous

    Oh that one definitely looks mass-produced and not as good as the one I bought on Etsy.

  • Anonymous

    Agree. Fox has every right to enforce their creative copyrights but retroactively banning etsy accounts for selling these hats before Fox ever got serious about enforcing their license is an overreaction – to put it mildly. A reminder and a warning should have been sufficient.

  • http://www.facebook.com/thomas.pee.96 Thomas Pee

    Just sell it as WOOL HAT SPACE COWBOY VER. Transformers sellers do it all the time but everyone knows what it’s really meant to be.

  • http://twitter.com/FTM_Ducky Alex J. Fitch

    Hell I made my own just to keep my head warm in the long ass winter we had..and to show my love for the short lived series. I’d love to get a C&D Letter from Fox telling me to not wear my hat. Hell what would that put me out..5 bucks I spent on the yarn?

  • Bam

    A friend suggested marketing it as a “Loveable Space Thug hat”. Granted, one would have to search for “loveable space thug” but still… they can’t act on that.

  • Anonymous

    Yes I was. Somebody should not be going on the internet before they’ve had coffee. -_-

    eta: Would you mind explaining in what way it’s “not entirely true”? Not being sarcastic, I’m interested to know.

  • Anonymous

    They can’t prohibit people from making them for their own use, only from profiting off of the sale of Jayne hats.

  • JBHelix108

    It’s not the hat but the name Jayne Cobb that Fox has any rights to. Make and sell your ugly orange hats but you can’t get away with calling a product by a copyrighted name.

  • http://www.facebook.com/sarahjayne.walker.98 Sarah-Jayne Walker

    Lol most of the stuff sold on Esty are items based on tv, games, books! They are stupid, the market for fan stuff will continue, its getting bigger and bigger… They will just end up doing themselves out of commision, But Lady who sells hats, I think calling them hats from mom is a cracking idea, as suggesting by Frank Bromley :P Whats really annoying is Joss Whedon would probably love it that the fans are so much in love with Firefly that they want to make them, :(

  • http://www.facebook.com/TomSawyerV Erica J.

    Yeah, my perfume ‘Leaf on the Wind’ was also hit, removed from Etsy. The worst part is they sent a thing specifying that they own all the rights from Firefly the Series, even though that line is from the movie, not the series. Seems like they are just randomly jabbing out at whoever they can.

  • Courtney Hudgens

    Oh good, looks like some of the many Browncoats will be having to adjust the names and descriptions of items so not to have Fox beating down their doors. >:

  • http://zadl.org/ Captain ZADL

    (Off topic) Are you the designer of the SFB race, the Peladine? If so, I love those guys! If not, you have no idea what I’m talking about.

  • http://twitter.com/humeruswares Humerus Wares

    Very true! I mean – you could rename it to anything, but the being found part is the key. Obviously, any fan would recognize the hat at a gift show or something, but online it’s not really worth it. After this incident I’ve pulled ALL my other inspired stuff and I’ll only sell them at local shows where I don’t have to “name” them. I’m still maintaining my store on Etsy but it is a lot more limited now than it was before. Which is a shame, because I have a few items people really loved.

  • http://twitter.com/TechnoMistress Lisa Liscoumb

    Good to know – I had some FF buttons listed on Etsy, but the listing lapsed and I haven’t gotten around to updating it. Think I’ll delete them altogether and, perhaps consider going somewhere else – any suggestions?

  • http://www.facebook.com/profile.php?id=779223487 Christopher A. Sørensen-Black

    I’m telling you… there’s something downright dirty about what’s going on here. Why are they trying to kill the message? I mean… seriously, think about it. Something’s not right in my space.

  • http://www.facebook.com/people/Michael-DeBolt/100002329227851 Michael DeBolt

    This is fuckin stupid. Both my kids got hats like this homemade from their grandmother. These hats didn’t start with Firefly so unless they come with something that says “Firefly” on them, I don’t think Fox has a leg to stand on.

  • http://twitter.com/NealKristopher Neal Kristopher

    Yeah, my cover artist’s copper switchplate with the word Shiny on it was deleted from his Etsy shop too.

  • http://twitter.com/Tonks07 Mandy

    I’m thinking makers will just get better at hiding. I’ve seen people on FB already being told to just PM people who make these hats for orders on the downlow. This seems like such a waste of time and money and effort by Fox to hunt down fans making things for other fans because of love for a show. Like they said, people aren’t making a fortune here!

  • http://www.facebook.com/StealUrHeartLabs Patsy Wade Robinson

    I bought my Jayne hat at Comic-con several years ago. While walking around the con, we saw Joss Whedon, and my son was wearing the hat. We got a picture of Joss with my son and daughter, and Joss even said, “Cool Hat”.

  • http://www.facebook.com/christopher.bingham1 Christopher Bingham

    There is no copyright on clothing design. You might run into trademark issues calling it a “Jayne” hat, but I’d like to see the registered trademark.

  • http://www.facebook.com/profile.php?id=1531395474 Karlen Kendrick

    These are the people who said they had the rights to “Baby Got Back” and used a song by an independant artist who riffed it. They don’t give a crap what “people” think.

  • Anonymous

    I wonder if they have exclusive rights to all knit hats that are orange and yellow with pom poms and ear flaps. Perhaps the sellers could start calling them something else like “Jayne Head Warmer” or “Hat Made for My Friend Jayne.” Personally, I would want access to just exactly what their legal copyright/trademark declaration says.

  • http://www.facebook.com/socalramen Carolyn Poddig

    Unsurprised. Fox has always employed Wolfram and Hart for it’s legal department. When you have a demonic law firm working for you there’s no limit to how dark you can get.

    (no, but in all seriousness this is one of those “If I don’t laugh I’ll cry moments.” I see what you’re doing there Fox)

  • http://twitter.com/RayvenMoon Kristina Grier

    Thats because unless you are a reseller with a butt ton of money Etsy has no problem stepping on a person’s shop. Check out Regretsy for some of the horror stories about the site and the people running it.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    It’s not ThinkGeek, it’s Ripple Junction. ThinkGeek just buys and sells them from the license holder, which is Ripple Junction. RJ is the company who reported the small shops to Fox.

  • http://www.marnen.org Marnen Laibow-Koser

    You know, on the one hand, I really want to hate Fox for what they’re doing. On the other hand, it seems like Ripple Junction did it right: unlike all these other folks knitting Jayne hats, they contacted Fox and got a proper license rather than (arguably) infringing. If that puts the unlicensed operators out of business for this particular product, it’s really hard for me to feel bad about that: they chose not to approach Fox about licensing, and are now living with the consequences. Hopefully they can come up with original designs that will be as attractive to consumers.

    On the third hand, I know that in the US, designs for things like clothing aren’t effectively copyrightable. I don’t know how licensing ties into that.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    Not fake, just false. Which is illegal to knowingly do. But unless you plan to fight them in court, nothing will stop them.

  • http://twitter.com/RayvenMoon Kristina Grier

    FOX has nothing to do with the banning. That is completely the doing of the creeps behind the comps at Etsy.

  • http://www.marnen.org Marnen Laibow-Koser

    Why does this make you angry as an IP attorney? Isn’t this how IP law is *supposed* to work? Or is there some way the law is being misapplied?

    As far as going after individual knitters who didn’t bother to license, my sympathy is limited at best. Surely they could come up with their own designs instead of stealing someone else’s?

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    Yes and no. They can ask that the name Firefly not be used, but names can’t be copyright. And the hat itself is not copyright. So the most they can do is be mad at saying Firefly. BUT, even the hats that had no reference to the show at all were removed, so…

  • http://www.facebook.com/arok.wolvengrey Arok Wolvengrey

    So, if someone, such as Joss, were to actually buy the rights for Firefly from Fox, then Fox would no longer be able to have any say in this, would they?

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    Technically, what you received what not a C&D, just a notice of an item being deactivated.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    They removed even listings with no mention of Firefly at all.

  • http://twitter.com/yodareater Girl Uninterrupted

    It’s not just the hats. They got me for an item that had a quote. It didn’t have a picture or any emblems or anything trademarked. Nothing. No words associated with the show (like Serenity or Mal). Not even a shiny, but nevertheless, they got me.

    And you don’t have to post her name. We already know what her name is. She’s famous at this point. Or should I say infamous. She’s the same one that went after Bleeding Cool for a picture they took ON THE STREET.

  • Anonymous

    Does Fox know that there’s no copyright on clothing design?

  • http://twitter.com/judeeatsthepoor Jude I⚡caяiot

    And only (possibly) because if they didn’t, they’d lose the contract themselves. Fox is the evil entity here. Always are.

  • Bruce Bates

    I can’t believe the number of people on this site that are clueless….

    OF COURSE fox is going to stop this. Any claim of “it’s been going on for 8 years” is a moot point…. for 8 years fox never new it was happening as no one told them.

    It would be like someone complaining disney stopped them from making Mickey Mouse hats….. WELL DUH!!!!!

    Etsy should have cancelled these accounts without warning, just as they did. Its CLEARLY in their terms you can not use any images, phrases, or slogans that you do not own the copyright to. Every single seller knew they didn’t own those copyrights.

    People are just butt hurt because fox claimed what is rightfully theirs, and they hate fox… nothing more or less than that.

    If I created a tv show 50 years ago, and you started selling merchandise not only would I be sending out cease and desist letters I would file a lawsuit against every single person selling the items…. as those should have been MY profits.

    Come on is the world getting stupid? Just because you hate fox doesn’t give you the right to rob from them.

  • http://twitter.com/judeeatsthepoor Jude I⚡caяiot

    Yes, you can’t copyright a hat design, or a color combination. The only thing these sellers were doing “wrong” was marketing it as a Firefly hat. They can sell the hats, but they can’t mention FF or Jayne or anything related in the description or tags… It would make it much harder to sell the items on a site like Etsy, but it would not violate anything.

  • http://www.facebook.com/durabledora Dorothy Dean

    Gah, these licensed hats are fooking UGLY. At least hose of us who knit them find nice yarn and make an attempt to match the hat as closely as possible. This hat looks like exactly what it is- a horrible knock-off. And I’m not talking cool Dr Horrible. I’m talking people who have probably never seen the show and are capitalizing on its popularity.

  • http://twitter.com/judeeatsthepoor Jude I⚡caяiot

    See my above post on why it’s not false.

  • http://twitter.com/judeeatsthepoor Jude I⚡caяiot

    It’s not fake (nor is it false as Maygin suggested). The letter told them they can’t sell it because they are violating a copyright, and they are – by listing Jayne, Cobb, Firefly, or any other number of copyrighted things associated with the show. If they leave out all of those things as tags or as part of the description (or even title), then they would be free to sell the hats as they are now.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    Right, they are legally bound to report unlicensed items. And Fox is bound to fight infringement on their behalf. It’s all fuskered. But point is still that Fox is illegally claiming infringement.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    My hat that was removed had zero mention of Firefly. Not even a quote, which can’t be copyright. So, yeah, still false. Which is why I’m filing a counter-claim.

  • http://www.facebook.com/joshua.harter.33 Joshua Harter

    Wow, another thing to make me hate Fox.

  • http://www.facebook.com/maygin.theresa Maygin Theresa

    My design IS my own. And my listings don’t mention Firefly at all. Yet my item was still removed and my shop still threatened. Please understand what you’re talking about before spouting off.

  • http://twitter.com/yodareater Girl Uninterrupted

    Not necessarily. Put “So Say We All” on something and don’t even mention Battlestar. Universal will go after you like hotcakes. Seen it happen. Nevermind that “so say we all” goes back to the Roman empire.

  • Red Angry Bird

    It makes me angry because I believe they are acting similarly to the RIAA going after individual downloaders for massive amounts of statutory damages, etc. (which is a separate diatribe), except they don’t have the same rights as the copyright holders to the songs. First of all, patterns, recipes, and blueprints don’t have full copyright protection because of the functional elements that comprise them. A hat has to be a certain shape because of the shape of the human head, just like macaroni and cheese has to have cheese in it. It’s the way you put them together into a compilation that is protected, but again, that’s tempered.

    Fox here had a staffer buy a hat off of a shelf for costuming purposes. The hat is already in the marketplace; whoever knitted it has the copyright protection to the pattern, not Fox. Now that the hat has become supremely popular, they’re stepping in to claim outright ownership of the whole kit and caboodle. That’s not fair. If this actually went to court, I really don’t see how Fox would win here. There’s a tradition of these hats appearing in Scandinavian culture, this particular hat wasn’t made or created by Fox originally for Jayne, and their hat that they are selling is in fact a recreation of someone else’s copyrighted work. Fox has a history of misappropriating IP itself (like Peanut Butter Jelly Time and the Baby Got Back cover), yet it goes after people viciously years after the show ended.

    Now, if you want to look at it from a trademark point of view, like the hat represents Jayne who represents Firefly, then depending on how much time has passed, they lost their right to enforce it by not continuously enforcing it. But I think this is a much harder row to hoe, and, without seeing the C&D, I would assume that they’re going about this through copyright law.

    TL;DR: Fox is being copyright bullies about something they themselves might not even own the rights to, so I take umbrage at this manipulation of IP law, especially when individuals without deep pockets are the ones being targeted.

  • http://twitter.com/yodareater Girl Uninterrupted

    Me, too, Sarah. I wonder if they realize how epic douchiness makes one want to boycott everything they produce?

  • http://theonetruebix.com/ The One True b!X

    At this point, my layman’s suggestion to Etsy sellers whose products have not yet been removed would be to remove all references to the show or any of its trademarks. List them as, say, “Tri-Color Girl’s Name Knitted Hats” and see what happens. It’s entirely possible that the issue is that when you specifically associate the hat with the name Firefly (or the name Jayne Cobb), that’s what triggers the responsibility of the license holder to protect its IP.

  • http://twitter.com/yodareater Girl Uninterrupted

    You got it, Kristina. Hit the nail on the head precisely.

  • Anonymous

    This is why we need to revamp the patent/copyright systems. They weren’t meant to be indefinite monopolies, giving people a stranglehold on creativity. In fact, quite the opposite. They’re supposed to be a very limited monopoly in order to give the creator time to make a profit from their creation, since a developer has costs that someone coming along and copying them wouldn’t have. They have the time to make a reasonable profit, before opening it back up for people to use as the basis of their own innovation and creativity.

    Patents should be limited to only what is specifically in the patent, and should only be valid if it includes precise instructions to recreate whatever it is that is being protected. It must include full source code, circuitry diagrams, and manufacturing processes or else it’s not valid. And if someone takes your concept and redesigns it on their own, as long as their implementation of it is different than yours (say an android version instead of an iOS version) then theirs is valid too.

    And copyrights should be the same thing. Mickey Mouse and friends should have gone public domain loooooooong ago. Sorry Disney, but people should be able to make their own creative works based on these characters. The fact is, it’s not going to hurt Disney much at all. People will still travel to Disney parks to see the Disney characters, they’ll still pay for the Disney label, and still watch the Disney productions to hear the authentic voices. But now, you can make your Mickey Mouse/Captain Kirk mashup stuffed animal, and sell it without being afraid of a cease and desist. You can make a YouTube cartoon with Mickey meeting Bugs without worrying about having it taken down. These corporations have too much control as it is, it’s time to start cutting them down to size.

  • http://www.facebook.com/dpwrugburn Miranda Blakely

    My geeky baby blankets were removed for using the Jayne hat likeness, as well as my “Serenity” Chinese characters blanket. BOO!!! I’ve opened up a shop on Indiemade, though. They have really great rates and features, but they deal exclusively with PayPal. Another “BOO!!!”

  • http://www.facebook.com/paperbadwolf April Walsh Layman

    I had my ‘Big Damn Hero’ leather flask pulled from Etsy reported by Fox Group legal.

  • http://twitter.com/adriane1978 Adriane Duquenne

    So they screwed up the show airing order, canceled it, and are now snapping out at fans who are trying to keep their show alive any way they can. Ah. Fabulous people at FOX eh? … >=(

  • http://www.facebook.com/profile.php?id=504130670 Ken Spragg

    So if the fan base is so enraged, boycott the “official” licensed product in protest. If they don’t sell any of their marked-up, probably-slave-labour-produced, crassly opportunistic hats and they discontinue them, doesn’t it stand to reason that they could no longer pursue legal action against people who resume making a product that’s no longer “officially” licensed?

  • http://twitter.com/ShopNerdyMind NerdyMind

    Remarket the hats as “FOXY CANDYCORN STRIPES” and tell all your fans to look for that. True Firefly fans would rather support one another than FOX anyway <3 they cannot sue you if you don't mention "Firefly" on the hat. All they own is the branding, they do not own color schemes or knit patterns.

  • http://twitter.com/ShopNerdyMind NerdyMind

    If all the sellers start calling the hats something else then spread the word to fans. <3 "Foxy candycorn"

  • http://twitter.com/ShopNerdyMind NerdyMind

    Do it! they cannot claim copyright for just looking like a hat they bought off a shelf. They did not invent the knit pattern or color scheme.

  • http://www.marnen.org Marnen Laibow-Koser

    Listings that don’t mention Firefly or Jayne were removed? Now that *is* getting a bit silly…

  • Alicia

    I hope they do. I would like to see FOX get pummeled by Vikings.

  • http://www.marnen.org Marnen Laibow-Koser

    Red Angry Bird:

    > First of all, patterns, recipes, and blueprints don’t have full copyright protection because of the functional elements that comprise them.

    Right, I know that. But isn’t licensing still validly at issue?

    > Fox here had a staffer buy a hat off of a shelf for costuming purposes.

    It’s hard to find out for sure, but the best information I have so far on this is that in fact, the Jayne hat was knitted specifically for the show. For example, see danregal’s comments, quoting Adam Baldwin, at http://whedonesque.com/comments/17685. Also see http://www.hitfix.com/whats-alan-watching/firefly-cast-and-joss-whedon-reunite-10-years-later-at-comic-con-live-blog : “Jensen asks him for the story of the hat. Baldwin says one of the women in the office loved to knit, and he asked Minear if he could wear it through the whole episode.”

    So no, the hat wasn’t bought off the shelf, as far as I can tell. If it were bought off the shelf, I would feel quite differently about this.

    > Now, if you want to look at it from a trademark point of view, like the hat represents Jayne who represents Firefly, then depending on how much time has passed, they lost their right to enforce it by not continuously enforcing it. But I think this is a much harder row to hoe, and, without seeing the C&D, I would assume that they’re going about this through copyright law.

    Yeah, I had been making the same assumption.

    > Fox is being copyright bullies about something they themselves might not even own the rights to

    The way I read it, the hat was created by someone who was actually working on Firefly. Whether it falls under that staffer’s legitimate scope of work for hire is a different question.

  • Alicia

    Yep — cross stitches have also been pulled, despite the obvious, obvious reality that Fox is never going to merchandise cross stitching. Ever.
    They’re losing zero dollars but a lot of respect by treating fans and fanart this way.

  • http://twitter.com/NealKristopher Neal Kristopher

    It could do the trick, but it could also make the listing completely impossible to find. Even if “Jayne” or “Firefly” is in the tags, it shows up far less frequently with searches and there’s over 3,000 orange knit hats on Etsy right now….

  • http://twitter.com/SciFiAudiobooks John

    But when did they file for a copyright on the hat? I did a quick search and didn’t find anything specific to the hat, I suspect they’ve overreached and don’t have an actual filing that cover this hat as described.

  • Carmen Sandiego

    Actually, fans started making these hats a decade ago. They started to become popular eight years ago, however. Small detail, I know.

  • Anonymous

    OK, SO, let me get this straight. Fox now owns the copyright to ugly hats like my granny used to make.

    OK. They used CHOPSTICKS and FORKS when eating…Fox owns that, too? They wore pants–Is Fox coming after me?

  • http://www.facebook.com/aloysia.sterling Aloysia Asterope Sterling

    Suggested name to evade copyright hawks: “Lightning Bug Mercenary Cap”.

  • Alicia

    Agreed. I would argue that Disney and others have the chance to make MORE revenue with this kind of involvement…instead of needing to create an immersive environment or experience that applies to everyone on the planet and maintaining ALL THE CONTROL, they’d be free to allow people to create their own experiences — and then possibly even be able to capitalize on derivative works by negotiating licensing with the derivative works’ creators.

    Don’t pull down the works of creatives. If you can, HIRE them so they add to your brand and revenue. I mean, duh, guys. Seriously, duh.

    I do not see how it’s possible or reasonable that fan involvement is great and wonderful and revenue-producing until the exact moment that fans start creating things, themselves — at which point it’s suddenly reprehensible and illegal, and we’re all told to go back and sit in front of our TVs and buy the stuff they want to sell us. “We want you to be “engaged,” but not TOO engaged! And only on our terms! Just keep staring at the screen, that’s all we want!”

    Actions like this, the enforcement not just of copyright but of the passivity of viewers, are stupid and self-defeating, unless the end game of TV really is to turn our brains into jelly and make us pure consuming machines…like Reavers.

  • Carmen Sandiego

    They can’t frakkin’ Cease and Desist the Chinese alphabet for Jayne’s sake!

  • Carmen Sandiego

    The word ‘shiny’? Wow.

  • D. Gray

    Hmm…I wonder who the original creators of the hat were. They would have a case if they came out and proved the design was out before the show began.

  • Red Angry Bird

    There are some licensing issues at play here, because Fox licensed its copyright (or what it believes it owns via copyright) to this company to make it, who then sublicenses the right to sell it to ThinkGeek. I’m assuming that it’s an exclusive license to make it, which is why they’re sending the C&Ds, but without reading it, I don’t know. But then you’ve got multiple people on here saying they’ve just made red & yellow hats that have been shut down, without attributing anything to it being a ‘Firefly hat’ or ‘Jayne’s hat.’ That’s where their limited protection comes in. Even if it was a work-for-hire versus being purchased by a costumer (which I didn’t know until you said it, but fine), there’s still limited protection for patterns, etc., and you can’t come after someone who independently creates a hat that looks a lot like yours, you actually have to prove infringement. I suppose you could start applying substantial similarity tests if you argue that it’s a part of Jayne’s character, but then you again I believe you’d get stymied by certain elements of the test. At any rate, if you license something you don’t actually own, then the whole contract ends up being invalid. I just see Fox having a weak case here copyright-wise, and their nuclear tactics aren’t going to help, because all it takes is one somewhat-savvy person to actually bring it to court, rather than buckle under to get this all going.

    At the end of the day, it’s all about your perspective of the purpose of copyright law and IP law in general. Are you a person who views the purpose of copyright to be a sword or shield? Is it meant to protect or attack? Here, Fox is using it to attack, but the problem is that it might not even own what it is purporting to own. Even the RIAA can actually prove it owns what it owns when it sends C&Ds to illegal downloaders.

    As for actually having registered a copyright, they don’t have to register it. Registration allows for statutory damages (lost profits, actual damages, treble damages in some cases, etc.), whereas unregistered copyrights get actual damages (the money they can actually prove they lost due to the infringing activity).

  • Alicia

    I’d recommend not reactivating the old listings, but if you feel your items are legit and you want to post them again, you may be able to do so (perhaps after the furor has died down) as new listings. I had an item pulled last year with no infringement (just a bully tactic from a network, I think) that, once I determined it wasn’t infringing on anything, I was able to put up in a new listing later on. I haven’t had any problems with it since.

  • http://www.facebook.com/Kyosji Daniel Dodge

    Couldn’t they just sell these hats as “Red and Tan winter hats”, and not mention the Firefly angle? It is just a standard 2 tone winter hat that people have made for years, the only thing that makes Cobbs hat stand out from any other plain-jane hat is the fact that it’s a tan and red 2 tone. Unless FOX also bought the rights to the colors red and tan, I think people could still sell them under a different name with no affiliation to Firefly.

  • Red Angry Bird

    Because you can copyright patterns to make clothing. You just have limited copyright protection to it, since clothing contains certain functional elements that have to be there. For example, I can’t copyright a neckhole on a shirt or two sleeves on a sweater, but I can copyright my particular arrangement and design and compilation of those details. Then I can enforce that copyright, license it, or put it on a shelf and let it collect dust. If it helps to understand it, recipes and architectural blueprints also have limited copyright protection for the same reasons.

  • http://www.facebook.com/Gorsedd David Kelly

    When it comes to politics and the decimation of obaaaaama, I will support you, FOX but, in this? What do you care? You didn’t even give the show a chance and now you want to reap the benefits of the crowd you pissed on? I can truly say that if you are receiving one penny from the sales of Firefly merch, I will NOT purchase until you DO NOT!

  • http://www.facebook.com/Kyosji Daniel Dodge

    Also, if your last name happened to be legally named Cobb, or your first name was legally Jayne, and you just made a few 2-tone hats (one of them just happens to be Red and Tan), I don’t think Fox can sue you over it because it’s you’re legal name.

  • Carmen Sandiego

    The fans made the hat an icon. It could have just as easily been something like Saffron’s shawl or Mal’s shirt. The design is so simple and universal. You can’t protect it. FOX could justifiably go after somebody selling an exact replica of the good ship Serenity, because it is a one-of-a-kind shape and design, but going after a generic knit cap, the word “Shiny”, and characters in the Chinese alphabet is ridiculous.

  • Carmen Sandiego

    My point exactly.

  • Carmen Sandiego

    That’s particularly frakked up. I can’t imagine how they can defend that.

  • http://www.facebook.com/matthew.caylor1 Matthew Caylor

    That is down right stupid. Fox cannot order people to stop making articles of clothing. For clothes cannot be copyrighted. About the only thing they can do is get you for trade mark infringement.

  • Carmen Sandiego

    B!x, sadly, that has been proven ineffective. Even people who had no references to the show or characters had their listings pulled.

  • Carmen Sandiego

    This is a tangent, but even if somebody begins their interest in Firefly through the popularity of it I still want to welcome them in as a Browncoat. No exclusions. :)

  • Red Angry Bird

    But is this something that’s actually copyrightable? How can you extend your rights to something that was independently created? How far does Fox’s IP extend? There’s a lot more questions here. It’s not this cut and dry. They’re sending out C&Ds very broadly, and people don’t question them because they see legalese and get scared. Meanwhile, Fox misappropriates IP from others left and right without any sort of attribution or compensation. You don’t get it both ways.

  • http://twitter.com/argentpanda J D Chastain

    “Boy, it sure would be nice if we had some grenades, don’t you think?”

  • Carmen Sandiego

    The fans are with you, Maygin.

  • Carmen Sandiego

    That’s frakked up.

  • http://www.facebook.com/Kazoo.mostly Cally Sarnowski

    If it was a small company or a mom and pop kind of store telling people to cease making this stuff, nobody would care. Since it’s a “big, evil” corporation, people are making a big fuss about it. No matter how big or small a company is, if they have an exclusive right to something they are allowed to tell people to stop infringing on it.

  • Anonymous

    Realistically licensing would only be a valid form of revenue for a few years, unless you license the trademark (which also needs revamped – you cannot just trademark a common word, like “Apple”. “Apple Computers”, “Apple Inc.”, etc. – that’s fine. But not “Apple”.). So, they can license out the trademark Disney, to show that this particular Mickey Mouse doll is a Disney approved one. But they wouldn’t be able to license out the design of Mickey Mouse, since it would be public domain. Anyone could make a Mickey doll, and sell it as a Mickey doll, without fear of Disney’s lawyers. They just wouldn’t be able to sell it as a Disney product.

  • Anonymous

    Actually I was wondering about exceptions to this, but thanks for the explanation. Though that would be an even weirder angle for them to pursue, since Fox didn’t design the hat. :/

  • http://twitter.com/humeruswares Humerus Wares

    You’re an IP attorney? I’d like to discuss this with you, could you email me at bethany /humeruswares.com? I’m an Etsy seller who has been affected by this.

  • http://twitter.com/humeruswares Humerus Wares

    The C&D was sent to Etsy, who then deactivated the listing along with sending over the text of the C&D to the seller. That’s what happened to me, at least.

  • http://twitter.com/travelingheidi heidi(8)

    Those terms aren’t copyrighted – they may be trademarks of FOX, though. However, the laches defense might apply for sellers who’ve been selling the hats for years, because a trademark holder who sleeps on its rights will lose them.

  • http://www.facebook.com/profile.php?id=1347062702 Siací Ross

    Fox: the same people who somehow managed to get CafePress to BLOCK the search terms “serenity” and “firefly” — much to the dismay of zen designers and insect-lovers.

  • http://www.facebook.com/esmepoms Heather McKim

    How about the fact that they are willing to pick on every little fan of the show yet won’t make a second season or movie. cheapskates.

  • http://www.facebook.com/mloach69 Matt Loach

    From the pic at the top of this article, the hat looks like traditional hats worn by natives of Peru, in S.America. There’s probably enough there to claim that hats “of this type” are a preexisting item, and can’t be copyrighted.

  • http://www.facebook.com/people/Natasha-Rodriguez/5015052 Natasha Rodriguez

    “Write it. Shoot it. Publish it. Crochet it, sauté it, whatever. MAKE.” – Joss Whedon

  • http://twitter.com/Mikarts Mikarts

    I was sent a takedown notice through Etsy for a 1.25″ button I designed from scratch. The only ‘infringement’ was using the word “Shiny”. A $2 button isn’t worth getting a lawyer over but it’s bollocks all the same.

  • http://www.facebook.com/ghostchilde Spooky Davis

    They hit my etsy shop for making firefly inspired jewelry (that said “Shiny”, because apparently, they own that word, too)

  • http://www.facebook.com/ghostchilde Spooky Davis

    Same here, even with the jewelry that doesn’t have any “expressions” or “quotes” or what have you on them

  • http://twitter.com/anarushka Anar Kamalova-Davis

    You know what, you are correct. I wore the hat of exactly the same design when I was a child and so did my mother. It was a part of growing up in a former soviet (in her time soviet) union’s cold weather. I am not sure if the color combination can be copyrighted but that design is definitely nothing new.

  • http://www.facebook.com/profile.php?id=525304301 James Brochey

    Push them out the airlock…..

  • http://twitter.com/Vaelentine Kelly Mueller

    Might not work, but I know that some people have been able to get around copyright laws by outright stating that the product is a ‘parody’. Not sure of the rules on that/if it will work in this case, but I’ve heard of times where it’s worked in the past (with Blizzard items and so on). Would be worth looking into, at least, if you are one of those who sold these hats

  • http://www.facebook.com/beth.rippen Beth Rippen

    Etsy doesn’t want a lawsuit so they remove products. Individual sellers can take their issues to court. If they’re using the names Jayne Cobb or Firefly then they are at fault. I say this as a seller of kitty hats that sometimes puts bows on them. Sanrio asks to have my stuff removed and Etsy removes it. They only remove stuff that has Hello Kitty in the tags or title.

  • http://www.facebook.com/ckrickett Kristin Frenzel

    I’d buy the HELL out ofsome Foxy Candycorn

  • http://www.facebook.com/daniel.outhier Dan Gerous

    They’re just now realizing, over a decade after its cancellation, that it’s lucrative?

    It beggars the imagination. I guarantee you the franchise is less valuable now than it was 10 years ago, or even 5 years ago.

  • http://www.facebook.com/ckrickett Kristin Frenzel

    can I join the list of OMG I have questions.

  • http://www.facebook.com/daniel.boggs.372 Daniel Boggs

    Fox has a right to issue C&D’s (maybe) but I definitely have a right to A) Boycott Fox for being corporate douches, and B) Boycott Etsy for _banning_ those making a product heretofore not available via “license”. The Esty action is a completely spineless %&^$@# move.

  • http://twitter.com/LizAdeniji Liz

    Fans could keep making them, giving them away for free and saturate the market.

  • http://www.facebook.com/Ettegoom Nomes Left

    If people just list the hats as orange and yellow pompom hats with earflaps, can they still sell them? Browncoats would just need to be a bit more creative to get around the problem. But ultimately it sucks bigtime and is just another example of big business ruining things for the little people

  • http://twitter.com/The_Kodu Jimmy Page

    I’d suggest listing them as “Serene Bobble Hats” as they it’s almost a link to the series without infringing upon a copyright. I mean what will fox do, claim they own a copyright on the word Serene or the design of the bobble hat ?

  • dave

    All they have to do is change the listing from ‘Jayne hat’ to orange, red and yellow knitted hat and they are good to go.
    The think geek hats are kinda crappy compared to the others ive seen, I think that was the real problem.

  • Anonymous

    Wow, that’s crazy! And people wonder why I don’t like Fox…

  • Anonymous

    FOX can’t hold the rights to that hat. That hat is a pre-existing garment that has existed for more years than FOX executives have been on this earth. This is utter bullshit. All the purveyors of these knit caps have to do is remove any reference to Jayne or Firefly, and FOX can’t touch them.

  • Anonymous

    So when does a Kickstarter project to raise funds for a “mass legal defense / case action suit” go up?

  • http://www.facebook.com/profile.php?id=2224405 Kevin Hayden

    I have a small time concern doing stuff like this and this approach to copyright has always pissed me off. These things aren’t hurting Fox or anyone else. In terms of harm done, there is zero net effect to Fox. But there’s a ton of harm in ruining the livelihood of an Etsy seller by shutting down their entire shop. These corporations need to be stopped. “Shiny”? “That’s what she said?” They didn’t even create those things, but claim the right to own them through sheer legal muscle alone. They’re stomping on people who they KNOW can’t fight back. It’s BS.

    I’m glad the fandom is getting outraged about these assaults on creatives. On the Etsy forums, it’s a huge taboo. We’re a filthy gang of criminals to them.

  • http://www.facebook.com/profile.php?id=2224405 Kevin Hayden

    Just bought a *fan-made* Jayne hat and I shall wear it proudly. If Fox is so concerned about the show, maybe they shouldn’t have aired it out of order and then cancelled it. Gorram jerks.

  • http://www.facebook.com/Angahran Lee Bassom

    All we need is to find someone who had one of these hats BEFORE it appeared on Firefly, then countersue Fox.
    I’m sure that someone out there knitted an orange and yellow wollen hat with a bobble and earflaps long before Jayne made them popular.

  • http://www.facebook.com/ralene.bell Ralene Miller

    I’ve been selling the hats for a while now on Etsy, and I received one of the letters. I removed all reference to Jayne Cobb, Firefly, etc as a result. What really bothers me is the number of Jayne hats still listed on etsy using the same terminology I had in my previous listing. There doesn’t seem to be any sort of rhyme or reason behind what is pulled and what isn’t.

  • http://www.marnen.org Marnen Laibow-Koser

    > Fox licensed its copyright (or what it believes it owns via copyright) to this company to make it, who then sublicenses the right to sell it to ThinkGeek.

    Sublicenses the right to sell it? Is ThinkGeek Ripple’s exclusive distributor? I just figured that Ripple’s hat was being sold by anyone who cared to do so.

    > But then you’ve got multiple people on here saying they’ve just made red & yellow hats that have been shut down, without attributing anything to it being a ‘Firefly hat’ or ‘Jayne’s hat.’

    Yup, and going that far is silly. Some of this sounds more like Etsy overreacting than Fox.

    At the same time, if you only look at the words, it’s a little too easy to be disingenuous and create an infringing clone without calling it one…

    > and you can’t come after someone who independently creates a hat that looks a lot like yours, you actually have to prove infringement.

    Sure, that makes sense.

    > I suppose you could start applying substantial similarity tests if you argue that it’s a part of Jayne’s character, but then you again I believe you’d get stymied by certain elements of the test.

    For infringement, do you need to argue that it’s a part of Jayne’s character, or simply that it’s a derivative work of the show? The former argument seems like it would be much harder to win than the latter.

    > At any rate, if you license something you don’t actually own, then the whole contract ends up being invalid.

    True, of course. But if Fox really does own the hat — as seems likely if it was indeed created for Firefly — then surely they can license it as they choose.

    > Are you a person who views the purpose of copyright to be a sword or shield? Is it meant to protect or attack?

    I don’t think that’s an “or” question. Copyright/patent/trademark law is meant to protect, sure, but that protection doesn’t mean very much if there’s no effective enforcement. It seems to me that no “shield” regulation is worth much without a “sword” to go with it.

    I also don’t really see how this question is all that relevant to the discussion. Care to elaborate?

    > Here, Fox is using it to attack, but the problem is that it might not even own what it is purporting to own.

    For the sake of argument, suppose it was crystal clear that Fox owned the rights to the hat. Would that actually change much of the argument here? If not, then it’s probably a red herring.

    > Even the RIAA can actually prove it owns what it owns when it sends C&Ds to illegal downloaders.

    Nitpick: the RIAA doesn’t own that material. Its members do; it’s just representing them.

  • http://www.facebook.com/people/Marc-Shakter/1116649835 Marc Shakter

    Shouldn’t the point here be if they will kill off a franchise and not support it, why should they have any rights to it still? THEY killed Firefly, not the fans!

  • http://www.facebook.com/john.burkhart.31 John Burkhart

    Firefly is still a FOX trademark, and they have to protect it. That’s what they’re actually protecting here.

    You can’t copyright clothing.

  • http://www.marnen.org Marnen Laibow-Koser

    Unlike patent and trademark, you don’t need to file for copyright. Anything copyrightable is automatically copyrighted from the moment it’s created (or at least from the moment it’s put into a fixed form). As Red Angry Bird said, registering copyright merely increases the amount of damages you can collect in case of infringement.

  • http://twitter.com/NealKristopher Neal Kristopher

    MY cover artist, who had his “SHINY” switchplate pulled renamed a few of his other items to stay on the safe side that weren’t Firefly related, but he says the views have gone down dramatically, over 40%. If the fans cant find it, they cant buy it. He’s also opened shops on Zibbet and Goodsmiths now, though I don’t think he’s moved the Firefly themed switchplate. I think he’s just hedging his bets in case Etsy decides to shut his shop down for a different item. I don’t know how many strikes a shop gets.

  • http://twitter.com/NealKristopher Neal Kristopher

    Yeah, my cover artist has a shop on Etsy and he was selling a copper switchplate with the word Shiny on it. They pulled that. All hand applied and painted, no official imagery, just the word Shiny.

  • http://www.miseryXchord.com Misery

    Erica, I looked at the tags you used on your perfume listing on the Google cache copy of the page Etsy took down… it wasn’t deleted because of the line ‘Leaf on the Wind’, it was because you tagged it with “serenity” and “firefly” (you also threw in “whedon”, altho FOX doesn’t own him ;), and that constitutes using their trademarks to sell your product.

    If people use things like Firefly, Serenity, Jayne Cobb etc to TAG their items, they should expect they might be deleted for trademark infringement. You can’t use their trademarks ANYWHERE on your listing, even the tags.

  • http://www.miseryXchord.com Misery

    Did he have anything Firefly related in the tags for that item? Using their trademarks in the tags to promote the item would still get an item pulled, even if the item itself carefully avoided the use of their intellectual property.

  • Anonymous

    Hey Fox. I’ve got this nice bucket of dicks right here. Feel free to fuck yourself with it, right before you eat it.

  • http://twitter.com/NealKristopher Neal Kristopher

    Naturally, it included tags that would lead it’s intended consumer to the product, that’s kind of the point of selling something inspired by a show, I would think. That’s the same thing as being cited for reviewing an episode of Firefly, using the tags and getting ad revenue from viewers reading the review. It’ smy understanding that trademarked infringement occurs when said item is implied to be included in the registered trademark, not when an item is inspired by a trademarked property. But what do I know? I’m just a bear!

  • Julie Ann Grasso

    I like you.

  • http://www.facebook.com/laura.truxillo Laura Truxillo

    I kinda like “Fearless Bobble Hat” my own self.

  • http://www.facebook.com/laura.truxillo Laura Truxillo

    Wowzer. The browncoats at Dragon*Con are gonna look mighty sad this year.

    Oh…snap. I wonder if the tea shop is okay?

    And I wonder if we’ll see any more nifty t-shirts now? Most of the originals were…weaksauce.

  • none none

    But if you use the words Firefly or anything else related to the show in the description, they’ll get you.

  • none none

    Etsy is the fifth ring of hell. There’s no rhyme or reason to the way they do things. As a loyal follower of Regretsy, I have seen some of the most ridiculous crap go on there and yet, the resellers still reign supreme.

  • none none

    The only reason why this is happening now is because Joss is back on the network and bringing his legion of fans with him. Fox didn’t give two shits til now.

  • http://www.facebook.com/profile.php?id=1268246718 Chad Smith
  • alk

    Are you effing kidding me, Fox?

  • http://www.facebook.com/rea.chandler.1 Doc Rea

    Do they really have a standing on these hats? That design of hat has been around for many years, long before Firefly, and probably before Fox, so surely they only have a right to the names!

  • http://www.facebook.com/mark.malekpour Mark Malekpour

    I got my own Jayne Cobb (hero of Canton!) hat knitted by some delightful people in the US and shipped to the UK.
    F*ck Fox.

  • http://www.facebook.com/l.andrew.spencer Leonard Andrew Spencer

    Huh. I thought clothing designs couldn’t be copywrited, which is why clothing companies put trademarked brands on their stuff since those can be protected.

  • http://www.facebook.com/josh.russell.92505 Josh Russell

    Fox are aware that you can’t just claim copyright for an item that has pre-existed their IP for years? Firefly didn’t invent this style of hat; they just featured it in the show. That doesn’t give Fox the right to threaten to sue any individual that makes them, only those that explicitly use the show to promote them.

  • http://www.marnen.org Marnen Laibow-Koser

    Fox could potentially license cross-stitching if they were approached — in fact, if they had any business sense, they would do so. So you really don’t know that Fox isn’t losing any money over this, even if Fox itself would not actively try to merchandise cross-stitch pieces.

    I suspect the amount of money Fox stands to make isn’t really worth their fighting for, true. OTOH, as a creative artist myself, I kind of object to selling a derivative work of someone else’s creation without proper licensing even if little money is involved — it’s just a matter of principle for me.

  • http://www.marnen.org Marnen Laibow-Koser

    No. They still own the rights (at least they think they do) and are still in a position to pursue licensing deals should anyone care to approach them.

  • Alicia

    Yeah, I see that and generally agree — however, what I like about fanart and fandoms is the collaborative nature and cross-inspiration, and if I were to license the cross-stitching rights, say, I would then be the only person able to use them, and I’m pretty sure I’d have to police other patterns and finished works (or Fox would still be doing that) rather than being able to continue sharing those abilities as fans.

    There’s also a strong culture to this kind of crafting and sharing in cross stitch, historically…meaning you don’t like to see outright stealing, but collaborative efforts can be within the norm pretty easily.

    In addition, while the amount of money being made doesn’t make a difference in principle, it does make a difference in the ability to actually pay the licensing costs. None of those Jayne hat sellers individually could have run a self-sustaining business after buying those rights. And if many individual sellers were able to band together to buy those rights as a collective, that would be fine, but it doesn’t seem like the system is set up that way.

    I just don’t see a legal outlet for fanart in current copyright law; and other creative works are awesome, but they’re just not the same thing. Right now the only way to make fanart “legal” is just for the rights-owning entities to turn a blind eye to it, which they’re legally obligated NOT to do in some cases, and that seems silly and ultimately confusing and unpredictable.

  • http://www.marnen.org Marnen Laibow-Koser

    I agree that a big part of the problem here is the status of fan art in copyright law, and I don’t know how I feel about that. On the one hand, there seems no logical reason *not* to let fan art happen, while on the other hand I believe pretty strongly that derivative works should be properly licensed or not made at all. (This may be a place where something like Creative Commons can fill the gap.)

    However, calling a Jayne hat replica fan art slightly begs the question. IMHO. Does a simple replica really qualify as fan art, or is it just, well, a copy?

  • http://www.marnen.org Marnen Laibow-Koser

    Oh…that last paragraph was a bit inapt. I see that you were still talking about fan cross-stitch.

    One more thought: I’m not sure *you’d* have to police licensing. Wouldn’t Fox do that? And anyway, what’s wrong with policing the integrity of a duly executed agreement?

    This is beginning to sound very much like Richard Stallman’s journey toward making GNU free, in particular the part where he got upset that a colleague who had some Xerox printer driver source code couldn’t share it with him due to NDA. Interesting…

  • http://www.marnen.org Marnen Laibow-Koser

    A couple more thoughts:

    > None of those Jayne hat sellers individually could have run a self-sustaining business after buying those rights.

    How do you know? Do you know what sort of deal they would have been offered? I sure don’t.

    Anyway, if they can’t keep themselves in business for a particular product, perhaps that’s the voice of the market telling them that they shouldn’t attempt to do so.

    > And if many individual sellers were able to band together to buy those rights as a collective, that would be fine, but it doesn’t seem like the system is set up that way.

    I *think* it would be possible for a collective to negotiate a licensing deal, then sublicense to its members. Callerlab sort of did that for its members (square dance callers) with respect to BMI and ASCAP music licensing…

  • Alicia

    That replica vs. fanart question is one I’d love to see approached with a less-bludgeoning tool than current copyright and DMCA, definitely.

    I like the idea of Creative Commons, and I wish there would be a way for fans to “get” those rights, somehow — either by purchasing the rights from the owners and being allowed to open those up to creative collaboration in particular media, or by somehow making it revenue-effective for the original owner to extend those rights. Unfortunately I have no idea how individuals would go about doing that, so it’s just a pipe dream.

  • Matt Day

    Firefly is dead people. Can’t you fools just move on to something else that isn’t so cliched?

  • http://twitter.com/SciFi4Me SciFi4Me.com

    Baldwin was at Planet Comicon over the weekend here in Kansas City. There were two hats made by a woman on staff. They were not store-bought.

  • http://www.facebook.com/nylanfs Paul Grosse

    Or they could market them as “Fuck Fox Hats” :) of course that also probably violates Etsy’s TOS.

  • Red Angry Bird

    We can keep going with this as long as you like, but I can see right now we’re not ever going to agree on it. When I brought up the sword or shield argument, it was a way to wrap it up without continuing this back-and-forth. The sword vs. shield argument is actually a classic legal theory in IP law; it’s something we discussed in my advanced copyright law seminar in detail during law school, and there’s lots of law review articles written about it. Many court opinions refer to the legal theory as well Here’s an example of a blog discussing it in layman’s terms: http:// lawandequity.com /2011/11/30/ copyright-sword-not-shield/ [take the spaces out]. There is a tension between two; obviously both exist in some form due to the rights involved and the ways to enforce them, but some people are more aggressive about it than others. That’s what I was referring to. I believe that Fox is being too aggressive; you don’t. That’s fine. I just feel that people need to stand up for themselves here.

    As to your first point, I never said ThinkGeek was an exclusive distributor. You can have exclusive licenses or non-exclusive licenses. All I said was that Ripple Junction was sublicensing its distribution rights to ThinkGeek. They obviously have A license though, since Fox hasn’t come after them.

    Secondly, Etsy is also overreacting, but I assume their way of complying with the DCMA is to just shut it down completely. After all, they’re looking at an awful lot of liability themselves if they don’t eradicate all traces of copyright infringement. That’s why I look at it as Fox being overzealous, because they’re obviously coming down on Etsy to take anything and everything that it believes is infringing its rights.

    Thirdly, it is easy to try to circumvent the specific words “Jayne” or “Firefly” or “Serenity”. Then the person would most likely be arguing it was an independent creation, and Fox would refute that, saying they were copying the hat. That’s why a court would apply the substantial similarity test. I’m sorry if I didn’t make this clear enough before.

    That also goes into your fourth point. If Fox flat-out really did have someone knit this hat specifically for the show, then they own the copyright to the pattern, and you don’t even need to go the derivative rights route. If it’s less clear than that, then you do need to argue that it’s part of their derivative rights from the series, and, in order to do that, you’d need to prove that it’s an inherent part of Jayne’s character. Otherwise, it’s just a piece of costuming, and while they could sell hats like it themselves, they couldn’t prevent other people from doing so There’s other tests in copyright law built around this (like Rocky, or the Maltese Falcon), and then you would use the substantial similarity test to prove whether or not the allegedly-infringing hat is infringing.

    Fifth, they may own the rights to this particular hat in one way, but they might not have all of the ownership rights they believe they have and have been acting upon. They might not be able to exclude other people from making it (especially since there is a Scandinavian culture that’s made these hats for a very long time.) My whole point is that this isn’t crystal-clear like you’re making it out to be.

    Sixth, it is an “or” question when you’re choosing to be this aggressive with it. They waited an awfully long time to go ahead and sell these hats. It’s 2013, and Firefly has been off of the air since 2002? Exactly. But that goes into the legal theory I discussed above, which you might not have known.

    I hope this helps you understand the legal theories involved. I’m sorry if I wasn’t clear enough before. I just don’t think it’s cut and dry. Fox has a history of misappropriating others’ work, yet here it is trying to be obnoxiously aggressive about something that it might not even own the rights to. What’s the next step? Is it going to say that fan fiction is a derivative work and shut all of that down? In a parallel, the sports leagues (like the NBA) have tried to claim that they own the copyrights to even the scores of the games, which has been shut down by the courts, but only because people took those cases to court and didn’t bow down. That’s why I think these independent artists shouldn’t just bow down to the C&Ds they’ve received.

    At the end of the day, you have your opinion, and I have mine. I don’t have the time to quibble any more over this, so hopefully we can just let this go now.

  • http://twitter.com/Kartos Heather

    American companies are crap about merchandising.

  • http://twitter.com/Kartos Heather

    Generally speaking, if it’s a one of a kind, can’t be mass produced item, (like a painting), most artists considering it not being an infrigement. I’m not sure how well you could hold that up in court, but it’s certainly not cut and dry.

  • http://www.marnen.org Marnen Laibow-Koser

    > We can keep going with this as long as you like, but I can see right now we’re not ever going to agree on it.

    Why do you say that? I’m certainly open to having my mind changed by a good argument…

    > The sword vs. shield argument is actually a classic legal theory in IP law

    I wasn’t aware of that. I’ll certainly look at the blog post you recommended.

    > There is a tension between two; obviously both exist in some form due to the rights involved and the ways to enforce them, but some people are more aggressive about it than others. That’s what I was referring to. I believe that Fox is being too aggressive; you don’t.

    I’m not sure I *don’t* believe that Fox is being too aggressive. I do believe that they have a right, and probably a duty, to go after those who infringe their copyrights. Whether the Jayne hats actually infringe, and whether Fox is being draconian if they do, is IMHO what’s at issue here.

    I *do*, however, think that even if Fox is being too aggressive, those targeted for infringement are in no position to complain, if the infringement is genuine.

    Let me turn the question around. You’re an IP attorney; you obviously know far more about this area of the law than I do. Why do you think Fox is being too aggressive? I would have thought this was business as usual for IP law.

    > Secondly, Etsy is also overreacting, but I assume their way of complying with the DCMA is to just shut it down completely. After all, they’re looking at an awful lot of liability themselves if they don’t eradicate all traces of copyright infringement. That’s why I look at it as Fox being overzealous, because they’re obviously coming down on Etsy to take anything and everything that it believes is infringing its rights.

    That’s true, but other posters here have said that in similar cases, CafePress (for example) takes down the offending item only. I would think that Etsy could do the same, but chooses not to. If they could, they are IMHO more to blame for being overly aggressive than is Fox in this case.

    > If it’s less clear than that, then you do need to argue that it’s part of their derivative rights from the series, and, in order to do that, you’d need to prove that it’s an inherent part of Jayne’s character.

    Interesting.

    > Fifth, they may own the rights to this particular hat in one way, but they might not have all of the ownership rights they believe they have and have been acting upon.

    Agreed totally.

    > Sixth, it is an “or” question when you’re choosing to be this aggressive with it. They waited an awfully long time to go ahead and sell these hats. It’s 2013, and Firefly has been off of the air since 2002?

    Does that matter? Does a statute of limitations apply here?

    > I hope this helps you understand the legal theories involved. I’m sorry if I wasn’t clear enough before. I just don’t think it’s cut and dry. Fox has a history of misappropriating others’ work, yet here it is trying to be obnoxiously aggressive about something that it might not even own the rights to.

    Isn’t that just a *tu quoque*? How does it apply here? Unclean hands?

    > What’s the next step? Is it going to say that fan fiction is a derivative work and shut all of that down?

    Why shouldn’t they? I’d really hate to see that happen, but isn’t is actually derivative? Or is it?

    > In a parallel, the sports leagues (like the NBA) have tried to claim that they own the copyrights to even the scores of the games, which has been shut down by the courts, but only because people took those cases to court and didn’t bow down.

    Wouldn’t that be a case of common facts not being copyrightable?

    > At the end of the day, you have your opinion, and I have mine.

    I doubt that this is a matter of opinion. It seems to me like it’s a matter of fact, and of finding out what the facts (of the law, and of the case) are.

    > I don’t have the time to quibble any more over this, so hopefully we can just let this go now.

    I’m actually really enjoying this discussion and learning a lot. I don’t see it as quibbling, simply as trying to get to the facts.

  • Kristen Rengren

    What’s frustrating about this is that Fox’s aggressive claims may indeed be in the wrong – I find it hard to believe that one can trademark red and yellow hats, or the word “SHINY”, or even the name Jayne – but regardless of the validity of Fox’s claims, individual artists simply can’t afford to get into a battle with a giant and essentially bottomless-pocketed legal department. Fox could effortlessly outgun the legal help of virtually anyone who challenged their claim. Even if those artists were 100% in the right, and 99.9999% of their motions were thrown out of court, Fox could launch a fusillade of nuisance claims, one after the other, and essentially bankrupt anyone who challenged their overreach before they got anywhere. And that sucks.

  • http://www.facebook.com/people/Li-Yieh/1033713524 Li Yieh

    I’ve decided to sell GAYNE hats on Etsy. Feel free to use my description.
    Generic
    Adult
    Yellow
    Navel orange
    Earmuff hat

  • Kristen Rengren

    I should add that to a lesser extent, Etsy is probably facing the same kind of threat from Fox. As crappy as it is that Etsy is overreacting, the truth is that if they didn’t, Fox could grind Etsy into a fine powder by just gratuitously suing the crap out of them for facilitating trademark infringement. Maybe Fox’s claims would get thrown out of court eventually, but even winning the battle could be fatal for Etsy, if Fox decided to make it difficult and costly enough (and you totally know they would.)

  • Red Angry Bird

    I have to apologize if I’ve come off as snarky. My grandmother had a heart attack this morning, and I’ve been using this as a distraction. I wasn’t trying to be rude, and I might have misread your tone. I’ll look over your responses in a bit.

  • http://www.marnen.org Marnen Laibow-Koser

    OMG! I wish your grandmother all the best. And don’t worry, you didn’t come across as rude. I may have come across as a little harsher than I intended; if so, I apologize. I’m genuinely interested in what you have to say here, though, and I think it’s tough to know how to handle these cases with the appropriate balance between sensitivity and respect for intellectual property.

  • http://www.facebook.com/murfnik Nan Murf Bradford-Reid

    I guess Fox is going to have to take a few million Peruvians to court, too…since that’s where this hat originated.

  • http://twitter.com/random_tangent Drew Coombs

    The dilution of trademark is more complicated than just not defending it. Certainly a lack of protecting one’s mark could lead to trademark erosion if it’s being used generically by a large portion of the population.

    For instance, Adobe is trying really hard to show that ‘photoshop’ isn’t a verb (even though, yes it totally is now). Lots of people use the term generically.

    However, it doesn’t really apply here since the closest thing to a trademark being used here is “Firefly” or “Serenity” in the description of these hats.

    I suppose a case could be made that the etsy sellers were trying to imply a business relationship that doesn’t exist between themselves and Fox, but that’s a little shaky.

  • Red Angry Bird

    Here’s a stab at it. (My grandmother is off having some tests done, I don’t think it’s as bad as we originally were told.)

    “Why do you think Fox is being too aggressive? I would have thought this was business as usual for IP law.”
    You do need to be somewhat aggressive in protecting your IP. Lots of companies have paralegals or even young associates troll internet sites looking for infringement, or going into stores and buying counterfeits as evidence (Coach, for example). But, the reason I believe Fox is being too aggressive is because they are sending C&Ds or having people shut down for similar-looking hats that don’t reference Firefly in any way. Other people in this thread have their own examples of that. It’s a grey area in the law about how far “inspired by” goes, so I understand why they’re doing it, but personally, for my style, I believe they’re ruining their already-threatened good will with their fan base by seeking out these people in particular. Copyright isn’t the same as trademark where you have to protect it or its gone (like what happened to Thermos). Sometimes you need to make a business decision about what kind of personality you want your company to have, and this isn’t a great one (in my opinion). Perhaps Etsy is more at fault than Fox here, since you’ve pointed out that other sites allow people to simply remove the listing. I can see both sides of this. On one, the DMCA is onerous, and many Internet companies are afraid of being sucked into a lawsuit for it, and simply letting people alter a listing could still let them put infringing material back up in a slightly different way, leading to liability. On the other, it’s a nuclear option, and they risk alienating their customer base as well.

    “Does that matter? Does a statute of limitations apply here?”
    Copyright actions do have a statute of limitations of 3 years from when the infringement is discovered, or reasonably should have been discovered. There’s generally two schools of legal thought that define when the statute of limitations accrue, based on whether the injury occurred or when it was discovered. Different circuit courts of appeals use different tests. Unlike trademark law, you can’t argue laches (which is ‘you waited too long so you’ve abandoned your right to it), but some courts can use the lack of pursuit as a balancing factor in the back of the mind, and it can always be persuasive to the jury.

    “Isn’t that just a *tu quoque*? How does it apply here? Unclean hands?”
    Maybe it’s a tu quoque, but, as Lord Coke said in the 1600s, “No poisoned hand shall touch the pure fountain of justice.” It is still persuasive to juries/judges 400 years later, even if it’s not the best legal argument ever. If you can show that Fox is doing this for the wrong motivations, or that they too disregard rights, while it’s not the best argument (since you’re essentially admitting, hey, I steal things, but look at that guy over there!), it will still needle in the fact-finders’ mind. Maybe it won’t help you be found not liable, but it could definitely help when the damages (if any are awarded). It also helps create a story to thread your other arguments around (injustice, etc.)

    “Why shouldn’t they? I’d really hate to see that happen, but isn’t is actually derivative? Or is it?”
    Stephanie Meyer is actually considering a lawsuit (or so I’ve heard in legal channels, could be not valid this far removed) against the 50 Shades of Grey “author” for infringement. Fan fiction hasn’t really been litigated before this, because (IMO) (1) the works can be transformative enough that the characters and plots involved wouldn’t pass the substantial similarity test to make it worth it, and (2) one of the elements of parody (which is the counter-argument a fan fiction writer would make when sued against) is commercial success, and pretty much all fan fictions up until now haven’t made any money for it. Even without the parody argument, the amount of money someone makes from the infringing work helps set the damages in many instances, so if someone didn’t make any money, you’re just going to court for an injunctive order and maybe $1 in nominal damages. Now we’re entering a new era with 50 Shades and Beautiful Bastards, so it could start happening.

    “Wouldn’t that be a case of common facts not being copyrightable?”
    The case at issue here (which I failed to fully elaborate on, so my fault) was one where Motorola made a pager that would deliver the scores of games to you (back long ago before people could look it up on their ESPN Mobile App). The court there found that, rather than these being facts in the public domain, that instead a basketball game isn’t something that can be authored, like a book, etc. Now, that doesn’t really help in the regard that patterns are copyrightable, but what it does show is that while courts have allowed the NBA and other institutions to consider many, many things within the ambit of their ownership in protection, they haven’t been afraid to say, “Noooope.” It would be my hope that a similar thing could happen here, and say that Fox is just going too far. Not really a strong argument, but again, it’s the little things that needle the fact-finder.

    “I’m actually really enjoying this discussion and learning a lot. I don’t
    see it as quibbling, simply as trying to get to the facts.”
    I’m glad you’re enjoying it! I like answering questions, so I’ll stick around as much as I can.

  • Red Angry Bird

    But these can be trademarked, which is a different cause of action.

  • Red Angry Bird

    Although, one caveat: you can use a trademark as a comparison. I don’t know how exactly that would work here, because I’m tired, but, for example, Walgreens can sell ibuprofen and say, “Same as Advil(r), a registered trademark of BLAH.”

  • http://www.facebook.com/sarah.cliff87 Sarah Catherine

    I too was asked to take down listings. I had “Shiny” “Browncoat” and “I Aim to Misbehave” stamped on some leather cuffs, with “inspired by Firefly” and “would make a great gift for any Firefly fan” in the description/title. As far as I know, you can’t copyright names, short phrases, catch phrases and titles. And I doubt “shiny” is even trademarked. Not sure about browncoat. Is there anything I can do? Last thing I want to do is file a counter-claim without an attorney and bring more attention to myself.

  • http://www.facebook.com/sarah.cliff87 Sarah Catherine

    Quick! Everyone to their parents’ photo albums!

  • http://www.facebook.com/loanro33 Lois Cook Roberts

    It couldn’t have been decades ago, the show was only on 11 yrs ago.

  • http://www.facebook.com/loanro33 Lois Cook Roberts

    Browncoats, we hear your concerns about the cease and desist on Etsy Jayne Hat sellers!

    We weren’t involved in that process, but we have reached out to FOX and we’ve heard what you’ve had to say. As a result, we’ve decided to donate the profits from all Jayne Hat sales on our site to Can’t Stop the Serenity, a Browncoat charity dear to ThinkGeek’s heart that raises funds and awareness in support of Equality Now. We’ll continue making that donation until we run out of stock.

    We hope the Hero of Canton himself would approve.
    Well at least there’s this!!

  • http://www.marnen.org Marnen Laibow-Koser

    Certainly. If anything, this would make it easier for proper licensing to happen if it turned out to be necessary in this case.

  • http://www.marnen.org Marnen Laibow-Koser

    > (My grandmother is off having some tests done, I don’t think it’s as bad as we originally were told.)

    Glad to hear it. Good luck.

    > But, the reason I believe Fox is being too aggressive is because they are sending C&Ds or having people shut down for similar-looking hats that don’t reference Firefly in any way.

    Yes, that’s a good point. I was more or less confining most of my thoughts to those clones that *do* explicitly refer to Firefly.

    > for my style, I believe they’re ruining their already-threatened good will with their fan base by seeking out these people in particular.

    I tend to agree with you, but OTOH, these sellers are demonstrating that there’s a market in Firefly merchandise, and I don’t think it’s unreasonable for Fox to want its piece of the action.

    > Copyright actions do have a statute of limitations of 3 years from when the infringement is discovered, or reasonably should have been discovered. There’s generally two schools of legal thought that define when the statute of limitations accrue, based on whether the injury occurred or when it was discovered.

    I didn’t realize about the 3-year limitation; that’s good to know. OTOH, it probably wouldn’t be hard to find a seller who started making these things less than 3 years ago.

    > It is still persuasive to juries/judges 400 years later, even if it’s not the best legal argument ever. If you can show that Fox is doing this for the wrong motivations, or that they too disregard rights, while it’s not the best argument (since you’re essentially admitting, hey, I steal things, but look at that guy over there!), it will still needle in the fact-finders’ mind.

    I don’t find a tu quoque argument persuasive in the least — I care about what happened in the case under discussion, or perhaps one like it, not some other case that has no direct bearing on it. Were I a juror, I think I’d actually find it the opposite of persuasive: I’d think “gee, the attorney has no real argument to make, so he’s simply trying to throw dust in my eyes by saying bad things about the other party”. That’s both logically and morally questionable IMHO.

    > Stephanie Meyer is actually considering a lawsuit (or so I’ve heard in legal channels, could be not valid this far removed) against the 50 Shades of Grey “author” for infringement.

    I suspect Stephenie Meyer would find a suit tough going at this point, based on some of the sort-of-positive things she’s said about E.L. James’s success with 50 Shades. (BTW, why the quotes around “author”? As dreadful as 50 Shades is, E.L. James — or rather, Erika Leonard — certainly did write it.) Also, it seems to me that by the time 50 Shades hit publication, the labels had been filed off enough that it’s no longer really a derivative work of Twilight in the usual sense.

    [Sidenote: 50 Shades gets me furious for reasons having nothing to do with its abysmal writing or Twilight basis: it misrepresents an abusive relationship as a consensual D/s one. That does a huge disservice to kinky people and abuse survivors alike. But that's another rant.]

    > Fan fiction hasn’t really been litigated before this, because (IMO) (1) the works can be transformative enough that the characters and plots involved wouldn’t pass the substantial similarity test to make it worth it, and (2) one of the elements of parody (which is the counter-argument a fan fiction writer would make when sued against) is commercial success, and pretty much all fan fictions up until now haven’t made any money for it.

    My understanding is that when fan fiction *has* come to court in the U.S., the courts have usually found it to be derivative (see Anderson v. Stallone and, less clearly, Salinger v. Colting). I gather that the courts have not usually bought the parody/fair use argument, but you probably know more about this than I do.

    (I understand that Joss Whedon approves of people writing fan fiction in his world settings…)

    > what it does show is that while courts have allowed the NBA and other institutions to consider many, many things within the ambit of their ownership in protection, they haven’t been afraid to say, “Noooope.” It would be my hope that a similar thing could happen here, and say that Fox is just going too far.

    But why *would* such a thing happen here? If the Jayne hat was legitimate work for hire, then isn’t Fox acting properly here, if rather harshly?

    > I’m glad you’re enjoying it! I like answering questions, so I’ll stick around as much as I can.

    Thanks for your patience! It’s really great to be able to discuss this with an expert in the field.

  • http://www.marnen.org Marnen Laibow-Koser

    But note that those packages also tend to say “we are not affiliated with the makers of Advil®™©”.

  • http://www.marnen.org Marnen Laibow-Koser

    Maybe, but there’s no legal theory that I’m aware of under which that could work.

  • http://www.facebook.com/people/Marc-Shakter/1116649835 Marc Shakter

    I know, but realistically if a company kills off a franchise like that they should forfeit their rights to it.. There’s plenty of intellectual property that is killed off and left locked away for no good reason. This franchise just happened to get a cult following that keeps growing instead of sitting on a shelf collecting dust.

  • http://www.facebook.com/marie999999 Marie Premack

    I was going to open an Etsy shop , but I’m seriously rethinking that idea ! Gestapo tactics are not my cup of tea.

  • http://www.marnen.org Marnen Laibow-Koser

    Hmm. I had a conversation with my fiancée after I posted this in which she reminded me about the copyright difficulties with clothing and the unlikelihood of actually producing a reproduction that’s close enough to be infringing. So I’m not sure where that leaves me or my conclusions.

  • http://www.marnen.org Marnen Laibow-Koser

    I find it a bit ironic that now that Fox is taking an interest in the Firefly franchise — and even licensing merchandise — fans seem to be wishing they wouldn’t. Isn’t this simply part of what Firefly fans have been asking for all these years?

    > There’s plenty of intellectual property that is killed off and left locked away for no good reason.

    I agree with that. In the software world, it’s getting increasingly common for dead commercial projects to get released as open source so that others can maintain them. It might be nice to see something similar in the arts (Creative Commons, anyone?).

  • http://www.facebook.com/people/Marc-Shakter/1116649835 Marc Shakter

    It’s not ironic at all. The show had and still does have a solid steadily growing fan base. If Fox supported the show and let it keep growing instead of shelfing it and practically forcing the movie to resolve the series permanently the fans would have been more then happy to just buy the licensed products and watch the show continue. Buying the official products at this point is just adding insult to injury. It’s giving Judas his silver.

  • http://twitter.com/NealKristopher Neal Kristopher

    This has fascinated me and I’ve dug a little deeper. Etsy’s coming across looking pretty innocent in all of this, especially compared to Think Geek and Fox, but after doing some digging it’s starting to look more and more like Etsy volunteers listings to companies, then shuts the shops down if the company responds with a C&D request. Every spring, geek sellers that have gotten large over the holiday are hit. Not just firefly either. I spoke with almost a dozen shops that were tagged in the spring purges for Harry Potter, 50 Shades of Gray and Lego as well. Unless spring is when corporate copyright lawyers come out of hibernation, then Etsy has to have a rather large knitted hand in this.

    http://www.nealkristopher.com

  • http://www.facebook.com/people/Curt-Cansler/100000864092253 Curt Cansler

    So can Fox get retroactively sued by every kid who was embarrassed because their mom made them wear that same hat in the 70′s?

  • http://minortechnicality.deviantart.com/ Jess

    ^ They said “a decade”, so it could’ve.

  • http://www.facebook.com/jerrad.wohlleber Jerrad Wohlleber

    Oh, now Fox cares about this show.

  • http://www.facebook.com/Ertrov Trevor Mullins

    There are still a few on Etsy. I’ll be buying one soon from there rather than Thinkgeek, partly just to spite Fox.

  • http://melancholywise.tumblr.com/ Sophie

    Cuts on clothing cannot be copyrighted full stop, otherwise you could copyright the t-shirt shape and make a lot of money. The particular colours and design can be, but it tends to not be enforced very heavily. If the hat was made for the show then it’s technically their right to enforce the copyright, though doing so in this manner does not speak very well of them.
    The issue of selling fan things on sites such as etsy is very legally grey right now. The truth is that the current laws aren’t really equipped to handle fan made things, or the way that the internet is changing the meaning of copyright. Unfortunately right now the law is made to most benefit big conglomerates rather than small creators.

  • http://twitter.com/ohlauren lauren

    The original creator of the hat was Shawna Trpcic – https://twitter.com/trpcic

  • Anonymous

    ThinkGeek donating proceeds from the sales of their “official” hats is a nice gesture, but that’s all it is.

  • Anonymous

    Actually that knit pattern has been around for a very long time. Someone who published it eons ago should sue Fox for copyright infringement or something.

  • Anonymous

    Whatever rights they had went unenforced for nearly 10 years… I’m not a lawyer, but under trademark law, and even copyright law, to not enforce for that long a period of time would render said “rights” null and void – thus, unenforceable. Go knit all the hats you want, in a variety of colors and styles, and put them all up for sale. Just call them something else and tell the lawyers to get a life.

  • http://www.miseryXchord.com Misery

    Using trademarks in the tags (which drive sales to your product) is exactly the same as using trademarks elsewhere in your listings.

    Tags are still a part of your listing. Several people have said they made no mention at all to the show in their listings but still got deleted, but if you pull up a Google cache copy they’ve got their items tagged with things like”Firefly” “Serenity” “Jayne Cobb” “Jayne hat”.

    It’s NOT the same as a reviewer posting a review about Firefly while having ads on their blog, unless by doing so the site gave people the impression it was affiliated with or officially sponsored by Fox.

    Trademark infringement occurs when use of a mark(s) has created a likelihood-of-confusion about the origin of the goods or services, which could lead people to believe the item is somehow associated, affiliated, connected, approved, authorized or sponsored by the intellectual property owner.

    In the case of the hat, since there is an officially licensed one for sale, a court could very well decide having identical unlicensed ones (using any of Fox’s trademarks to identify them to fans) also for sale online at the same time creates a likelihood-of-confusion. (not to mention ruining the licensed one’s SEO by burying it under Etsy listings when they’re on Google trying to find a source for one).

    However, a lot of things depend on exactly WHAT intellectual property Fox licensed to Ripple Junction (who had to be told how to make the hat properly afterwards). If it’s a trademark issue, how long Fox has held the trademark(s), what is the scope of the mark, have they ever used it in the past, and whether they’ve lost trademark protection from non-use/not protecting it. If they just NOW are trademarking something like “Jayne’s Hat”, or a hat with orange-yellow stripes, there’s basis to have those trademarks denied due to it already being in common use.

  • http://www.facebook.com/james.s.nimmons James Spasticus Nimmons

    THey cant stop the production of hats like this..they dont own the design. they dont own the colors..they own the NAME..lose the name..and the alliance can sell their hats..and i implore any true fans of the show to knock the commercial sweatshop hats off the heads of anyone they see and tell em not to buy hats form the alliance..;)

  • http://www.facebook.com/paul.harpham -Paul ‘Half-orc’ Harpham

    just refuse to buy them from think geek dont give FOX the cash. luckily I got mine made for free buy my wife who for legal reasons made me a 3 coloured hat with flaps and pom pom that by coincidence are similar colours to the Jayne Cobb hat. no money exchanged hands, just love.

  • http://twitter.com/ripcrd ripcrd

    I would think the IP was considered abandoned if they did not defend for 8 years. Also, not good enought to run for more than one season, but you DBs will keep merchandising? Nice move douche.

  • Elise Krueger

    Sigh… this happened a couple of years ago with Doctor Who fandom. Such money grubbing.

  • http://twitter.com/urbansuburbia Marie

    Boo. Much as I love etsy.

  • Guest

    Actually, there’s been at least two recent cases that ruled against meta-tags being infringement, after the Axiom case that had decided that they were. Here’s a link to one – http://blog.ericgoldman.org/archives/2008/04/court_says_keyw.htm

  • http://www.facebook.com/diane.ullman Diane Ullman

    I don’t think Fox has any legal ground. That knitting pattern has been around since at least the 1920s and is in Public Domain. Hell, I had one in 1955 when I was 7. The sellers don’t have to put Jayne’s name on it. Firefly fans will know what it is.

  • Gregory Williams

    They can do the “required by law” thing without banning/blocking a person – some of the victims also engaged in legal and legitimate commerce.

  • http://www.facebook.com/MercXXII Jeffery Lander

    Correct me if I’m wrong, but copyright doesn’t apply to peoples “artistic” creations which draw “inspiration” from mainstream media. I think this is Fox et.al.bullieing those individuals simply because they can, and people don’t know the law or won’t be willing to fight back