Can someone legally use a copyrighted image for a craft if the item is not for sale?

I’m not a lawyer.
Yes you could be taken to Federal court for using a copy of the image that is copyrighted on a FB page or you could be banned from FB. The court may or may not agree with the copyrighted images being infringed, but you will have the possibility of going to court. If it was a Disney or other large company they have “spiders” looking on the web for their images.
I have been at a craft show where someone was selling items with NFL logos, police confiscated all the item and issued a citation.

I’ve dealt with this issue many times in my work. It’s inadvisable to use copyrighted images—period. You may never be called to task if you do, but Facebook, that most public of Internet sites, is trolled constantly for copyright infringement, as are many such sites. Now the worst that could happen would probably be only a cease and desist request—but in some cases, fines could be imposed.

@Tropical_Willie: In the example you gave about the craft show, the items were being sold. I am referring to making crafts for personal use, not for sale.

I mentioned Facebook in reference to posting the photos of the items.

My question was more in reference to copyrighted images that are on crafts that are not for sale.

Do you mean, for example, if you were to incorporate an image of Mickey Mouse into a sweater you were knitting for a child? or painting Disney’s version of Cinderella’s face onto a ceramic plate for your own use? And then, let’s say, taking a picture of the item you made and posting it to your Facebook page?

@Jeruba has a good question.
I did not mean that the items you made would be for sale. But Disney does pay for a search of any of their images. on the web. FB will throw you out if they think you infringed on a copyright image. even if it is not for sale.

You can’t legally use an image unless you have written consent from the copyright holder. And good luck with that from the vast majority of copyright holders. Disney is a fierce defender of their copyrights.

But the chances that you using an image, keeping said image off of Facebook, and having someone come after you are slim to none.

@Jeruba: Yes, exactly.

Short Answer

While it is unclear whether or not your intended use of Mickey Mouse falls under the Fair Use doctrine, you are unlikely to get into any trouble over it.

Long Answer

First things first: just about any prediction of how a particular copyright case will turn out is at best and educated guess because copyright law is still largely untested within the courts. There are safer and riskier bets, of course, and there a few settled areas. In general, however, it is a vast legal unknown. Groups like the RIAA use copyright law as a big stick to intimidate people into settling out of court, but many experts consider their claims to go beyond the actual law.

In any case, whether or not something is for sale is only one factor in determining whether or not it falls under the Fair Use doctrine. There are commercial uses where the use of copyrighted material is allowed, and non-commercial uses where it is prohibited. The four factors taken into consideration are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

That your use of Mickey Mouse is non-commercial is a point in its favor, though personal use is not quite as favorable as educational use would be. It is also likely that your use will not affect the potential market for Mickey Mouse products. Any moderately clever lawyer would argue that you might have gone out and purchased a Disney product had you not made a copy of Mickey for yourself, but that would only be plausible if Disney sells a comparable product to the craft you are making.

The other issue here is trademarks, which are not the same as copyrights. Intellectual property holders tend to be quite concerned with two things: keeping their trademarks intact, and not losing revenue due to infringement. The second is covered above. The first, however, is a major driver of intellectual property lawsuits. If Disney turns a blind eye to someone’s use of Mickey Mouse, they could wind up losing their trademark for failure to enforce it. This gives them a reason to care about the infringement even if they otherwise would not.

Not just any usage of Mickey Mouse is a threat to their trademark, though. The usage has to be reasonably public (otherwise they cannot be expected to know about it), and the violations must be either multiple or ongoing. Moreover, trademarks have to do with trade. UPS has a trademark on Pullman brown, but that trademark is only enforceable against other delivery companies or against non-delivery companies attempting to take advantage of UPS brand’s reputation. Your craft is no threat to the trademark.

In short, your use of Mickey Mouse—even if you take a photograph of it and put it on Facebook—is unlikely to get you into trouble. Could it open you up to prosecution? Yes. Then again, just about anything can. I’m a terrible artist. If I draw a picture of Jerry and it just so happens to look like Mickey due to my incompetence, I could be opening myself to prosecution by Disney despite the fact that Jerry is property of MGM!

The case is unlikely to be successful, however, and thus probably wouldn’t be filed in the first place. The same goes for your Mickey Mouse craft. The likelihood of a lawsuit being worthwhile is incredibly low both because it’s not clear that Disney would win, and it’s unlikely to be worth Disney’s time. Assuming your Facebook picture is not easily accessible to all the world, then, you would probably be in the clear. So just make sure to check your privacy settings!

Standard disclaimer: I am not a lawyer. The above is based on seminars I’ve taken on copyright law and discussions with colleagues who have studied and/or practiced copyright law. The information may be out of date or based on a misunderstanding. It is always advisable to speak to a practicing lawyer.

The Fair Use doctrine that @SavoirFaire mentions above is relatively broad. Of course, the simple fact that your use comes under the Fair Use umbrella does not mean you can’t be hit with a cease and desist notice or even a lawsuit. If Disney sues you, you will either have to spend hundreds of thousands of dollars on a legal defense, or lose the lawsuit. Is it worth the risk?

Like @SavoirFaire I am not a lawyer and not a copyright specialist. I am, however, a Web developer who routinely generates computer graphics for use on Web sites. In 17 years of practice, I have never been sued of even had a cease and desist order. I manage that by never pushing the envelope of Fair Use. I might grab a very generic image like a picture of the moon or a leaf if I plan to do a great deal of editing to it in Photoshop. I only do that when the end result is more my work than the original work, and even the copyright holder would not recognize it as their work. If enough of the original image will remain that it’s recognizable, I’ll use a licensed stock photo, or negotiate a license for the intended use with the copyright holder.

Companies are required by law to defend their trademarks or else they lose trademark status, so even if you’re not perceived a threat you can still be targeted just because they have to.

I wouldn’t place a ton of faith on being to small to notice. I once used some html formatting from a different website that I heavily modified for my school’s marching band website and i still managed to get nastygrammed. Apparently threatening 14 year olds was in style before the RIAA even thought it up.

@sinscriven They are required to protect their trademarks only from certain kinds of infringements. It is quite unlikely that @jca‘s craft would count. As for the HTML, anyone can threaten anyone for anything if they want. That doesn’t mean the threat has any legitimate basis. People roll over to these things way too easily.

@SavoirFaire True, but being cautious doesn’t hurt, it catches attention of legal departments when things go viral and nobody wants to be on the bottom of an organization of someone like Disney who is more popular and richer than God – Even if the law is behind them for fair use.