Legal Risks in Do-It-Yourself Crafting and Alterations

Someone recently asked about the legal implications of altering something yourself, such as piece of furniture, of selling the altered furniture in person, of selling the altered furniture via the Internet, of making a copy of the furniture, of instructing others on how to perform these alterations. In the current vernacular, some people call these efforts, a hack or a “mod” (as in modifying) or a “dup” (as in duplication).

Whether a person may hack, mod and dup an object depends on whether the creator of the object retains rights against another person engaged in the hack, mod or copying the object. Intellectual property law covers most of these rights.

Sales Contracts May Include Replacement and Refill Requirements

Numerous companies have over the years included in their sales contracts for patented articles a requirement that a buyer purchase replacement parts or refills solely from the seller. Not too long ago, the U.S. Supreme Court said a company could not require purchasers of patented articles to buy non-patented supplies from the seller. That case allowed people to make, refill or modify non-patented supplies for patented articles.

Manufacturers then sought to contractually prevent other people from refilling or modifying patented supplies, even though lower court cases had said that the sale of a patented item ‘exhausts’ the patent owner’s rights to prohibit others from re-selling, fixing or using a legally made and sold patented item. So, earlier this year, the U.S. Supreme Court said that without exception, when a patent owner sells a patented item, the patent owner forfeits all patent rights in the item.

Hacking or Modifying vs. Duplicating or Copying Objects

These cases do not, however allow a person to make or copy (dup) a patented item. Patent law still gives the patent owner rights of control over making, selling, and offering to sell a patented item, as well as right over the use over an unauthorized copy. Therefore a person may hack or mod a legally made and sold patented item, a person may not dup (create or copy) a patented object.
Even so, a person engaged in hack or mod activities needs to be aware of whether the hack or mod would result in a patented object. While utility patent protect technology, design patents protect many everyday objects, including furniture, shoes, home improvement items, pallet movers, dressing aids, wine barrel sculptures, bottles, necktie holders, and more. Thus, a person engaged in a hack or mod of something so commonplace as furniture or home improvement items should ascertain whether the hack or mod would not violate a patent owned by IKEA, QVC or another person.

Other Copyright Considerations for Modifying Art, Sound and Architecture

There are other rights a maker might retain. Copyright prohibits the copying of (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Copyright also prohibits making a derivative work of a derivative work. In other words, while exhaustion of rights by sale also apply to copyright, exhaustion in copyright applies only to re-sale of the whole of work. A person may not hack or mod a work protected by copyright unless the hack or mod creates a transformative work, otherwise the creator retains derivative rights. A person may not, for example, paint a copy of a copyright-protected picture on a tile, though a person could create a mosaic using small copies of many pictures with the small copies serving as pixels of color for the mosaic.

Copyright also includes what are called moral rights for artists of certain visual works. These rights, called VARA in the U.S., prohibit misattribution and grants the artist the right of attribution and or to have a work published anonymously or pseudonymously, and to prohibit the destruction or damage of qualifying works. These laws assure artists against someone injuring the reputation of the artist through misrepresenting a visual arts work as that of the artist. Other rights also apply. Thus, if a person made and sold a work protected by VARA, a buyer could not legally hack, mod or copy the work.

Trademark Law Protects Against Counterfeit Products and Services

Trademark law also applies against the hack, mod and dup of an object, although for a different purpose and in a different way. Trademarks serve to protect the public against counterfeit products and services. While a person could make and sell furniture or any other item not protected by patent or copyright, a person cannot make and sell something showing or using the trademark of another company and without permission of the trademark owner if public would believe the other company make the product.

With regard to instructing others on how to hack, mod or dup an object, if a patent or copyright protects a product, then a person commits contributory infringement by providing instructions or tools for the illegal making, selling or offering of sale of a patent or copyright-protected product. Similarly, a person could commit inducement of infringement by encouraging (inducement) the illegal making, selling or offering of sale of a patent or copyright-protected product.

Hack and Duplication Laws Apply to Everyone

These laws apply to every person in the supply chain, regardless of whether a sale is in-person or online. Patent law would apply to punish a person, who might, for example, instruct another person on how to violate a patent, while copyright law would apply to punish the owner of a work of the visual arts directing a contractor to damage the VARA-protected work.

Contributory infringement and inducement of infringement also pertain to trademark law, such as the person ordering the unauthorized trademark, the person making the unauthorized trademark, the person applying the unauthorized trademark, as well as the person selling the product with the unauthorized trademark.

So, before seeking to hack, mod, dup or sell an object or provide instructions or encouragement to hack, mod, dup or sell an object, make sure you either legally purchase or make the object you start with, and make sure the final object does not infringe a patent, copyright or trademark.