Copyright laws are an absolute minefield, and much easier to break than you imagine.
I recently came across this enlightening and informative article by Sonia Payne of Balloon Biz Academy, who has kindly shared it with the Very Best Balloon Blog. I believe that you will find this an extremely interesting and helpful read!
When one does a quick flick through Facebook looking for balloons, It doesn’t take long to stumble across countless acts of copyright theft! Yes, I did say theft… because ultimately when you use another person’s work for your own commercial gain, that’s exactly what it is! It is an industry-wide issue, and hands-up it is something I have been guilty of before in my business! I saw so many others doing it across the entire industry, so I assumed it must be okay… but having looked further into what you can and can’t do, I am here to tell you why it's wrong.
One of the biggest myths in our industry is that as a small business, many of which are operating from home, you don’t need to worry about too much. As the majority of businesses only have a few thousand followers on social media, many of which are local customers, how will anyone find out you are breaking the law? Well, I hate to be the bearer of bad news, but there are numerous ways your business can end up being investigated!
This can happen when: a trading standards officer stumbles across your online shop, a disgruntled customer decides to report you, Your competitor dobs you in, your neighbours get fed up with customers collecting and parking in front of their house every weekend, or corporate investigators doing a search find your balloons (and yes these investigators do exist – Disney has whole teams scouring social media and the internet!).
Another industry myth is that if caught you will get a cease and desist letter, and then they will simply stop once you do! Whilst cease and desist letters are commonplace in copyright infringements, there is no due process that requires this to be done initially, and they can and will decide to prosecute straight away. The consequences to your business (and personal life) can be big if you are found to be flouting the law!
I can’t tell you how many industry myths there are to try and justify the wrongdoings of others in the industry. As a balloon business owner, you may hear things like; hand-crafted items don’t count, if it’s not available as a balloon already it’s fine, we are too small for them to even worry about, everyone else is doing it and they can’t take all of us down, non-profit companies don’t worry about copyright, and so it goes on. Let me be upfront and tell you none of these things will stand up in court should a lawsuit come knocking on your door… Neither will “I didn’t know!” Ignorance is no defence in the eyes of the law. It’s your responsibility to understand the laws your business trades within…
Small home-based businesses do get prosecuted!
A lady from Sutton, UK, who was making and selling bows from counterfeit ribbon, found herself in court resulting in a criminal record and a huge £4100 fine! Sutton trading standards made several test purchases from her online shop posing as a customer before raiding her home address and seizing her products and computer. The lady was found guilty of 10 offences under The Trade Marks Act 1994, the Consumer Protection from Unfair Trading Regulations 2008, and The Fraud Act 2006 for the sale and possession of counterfeit goods, engaging in unfair commercial practices, and carrying on a business in a fraudulent manner.
In the balloon world specifically, Disney issued many cease and desist letters to several balloon artists in Orlando in the past. Many, many balloon artists have had their Facebook pages or other social media accounts shut overnight due to trademark and copyright infringements, and found themselves having to start from scratch as years 'worth of work building their businesses just vanished in a split second!
So what mistakes could you be making in your business related to copyright?
1. Using other people’s Logos and images – Just because you own a vinyl cutter does not mean you can cut or print stickers of designs from TikTok, Fortnite, Disney, football club badges, or other logos or characters. It doesn’t matter that you can’t buy balloons with these designs on and that your customers want it. It doesn’t matter that you are not directly taking money away from the company because there isn’t a balloon alternative you could use – you still must not do it! It also doesn’t matter if you bought the cut file of another person who was breaking the law first – By using the image on your balloons for commercial use, you too are still breaking the law and you can get in trouble for it.
2. Making Balloon Parodies for Sale - Making twisted Mickey's, Minnies or any other cartoon character for sale can mean that you are breaking copyright laws. No one can stop you practicing your twisting skills at home in creating popular cartoon representations (this would be deemed fair-use) But as soon as you put that item up for sale, you are opening yourself up to potential legal consequences. Some twisters have tried to get around this by describing them as 'parodies,' but to create a parody there must be an element of social or comical satire or criticism within the work. Simply creating a copy of a cartoon character in latex and calling it a parody will not suffice. There is a fascinating article by Todd Neufiled, a balloon artist and a solicitor, on Balloonhq.com exploring this subject further. You can read it here: https://www.balloonhq.com/faq/parodylaw.html and I do recommend reading this, as I learned so much from this article - in fact, I wish that I had found this article years ago!
3. Fabric and Ribbon – There is a lot of counterfeit fabric on the market, but did you know that even the genuine Disney fabric is sold for personal use only! That means you are not allowed to use the fabric to make and sell items. Printed on the material itself, of all genuine Disney material, it states it is for personal use only. When purchasing fabric and ribbons to use in your designs, it is your responsibility to check that you are allowed to use it for commercial gain!
(This also applies to other licensed items such as stickers! You would think that this would be a safe way to use a licensed design on a balloon, however, the same rules apply, as these are also sold for personal use only!)
4. Fonts – There are numerous sites online offering free fonts to decorate your foils and bubbles using your vinyl cutter, but did you know that the majority of them are for personal use only? By using these fonts to make items for sale, you are infringing copyright. You are far better to purchase fonts with a commercial license via the font marketplaces, such as creativemarket.com, but even then you need to make sure you read the terms of the license. They often dictate how you can use them, the types of products you can make with them, and how many you are allowed to sell under the terms of that license.
5. Song Lyrics – While song lyrics generally don’t fall under copyright regulation, many song titles and phrases within songs are trademarked, which means they can not be used on balloons. The more unique the title or phrase, the more likely it is to be trademarked. Check before you cut vinyl to put on your balloons!
If you would like to learn more about this topic visit: Copyright & Trademark Concerns for Crafters: Song Lyrics
6. Words and Sayings – Following on from song lyrics, there are thousands of words and sayings that are trademarked. Elf on the Shelf is probably the biggest one that has affected the balloon industry over the past few years. Many balloon business owners woke up to discover they had lost their Facebook and/or Instagram accounts because even though they were using genuine elf balloons, they had described their product as an elf on the shelf and this term is not only trademarked but fiercely protected by its original creator. Facebook and other social media platforms are not interested in the fact it is a genuine mistake on your part – they don’t want their platforms blemished with bad representation or lawsuits, so they will simply remove your account without getting notice or discussion! Do not expect your account to be reinstated – I haven’t heard yet of anyone who has been able to get Facebook to change their mind!
7. Counterfeit stock – With Amazon, eBay, and the likes of Alibaba all selling cheap balloons there has been an influx of counterfeit balloon products into the marketplace. Not only do many of these balloons fail to meet CE standards, they also of very poor quality, placing your customers and yourself at risk. Many also do not have a license to produce them. Purchasing counterfeit stock and then selling it as part of your portfolio of products is illegal, and doing so can land you in hot water for many reasons. Make sure you only purchase your stock through a professional balloon wholesaler to prevent yourself from falling foul of the law.
8. Music used in your marketing – This is another little known area where your business can end up in trouble. Using backing tracks to your social media stories or videos can land you in hot water. You need to use only royalty-free music, or you can find your social media account shut down for infringement simply by adding a song as background music
9. Using other people’s images without permission – It can be difficult when you're first starting your business and you don’t have a supply of good quality photos of your work. I see this all the time in the Balloon Biz Community Facebook group, with new businesses asking how to build their portfolio. It can be tempting to take a couple of images off google and put them on your social media and website to “get you started”. I STRONGLY urge you NOT to do this. It is theft! In doing so, you are not only breaking copyright laws, as those images belong to the original creator, but you are also creating a major social blunder in the balloon world! In the sharing, caring world of balloon professionals, one thing that is never tolerated is photo theft. You will quickly find yourself called out on this. Not only will you get so many comments on your social media from enraged professionals telling your customer this is not your work, you will also find yourself shunned from all social media groups! It really isn’t worth it! If you are starting out – check out the Starting a Balloon Business Ultimate Guide, where I have a whole chapter on building your portfolio, plus a masterclass on how to build your portfolio when you don’t have photos. You can find the link below! Click HERE or visit https://balloonbizacademy.vipmembervault.com/products/courses/view/1022245
Here lies the dilemma… Your competitors are doing it, and half the industry seems to be doing it! At the beginning of this article, I was upfront and honest and put my hands up to say I, like so many other business owners in the industry, have been guilty of copyright infringement in my business. I am not here to tell you what to do in your business, merely to educate you and let you make your own decisions.
I should also be clear that I do not have any training in the formalities of copyright or trademark law. This article is simply provided for educational and informational purposes based on the research I have done on the subject. You use this internet site at your own risk, and I always recommend seeking legal advice in your business from those qualified to provide it.
My advice is, put yourself in the shoes of the person you are stealing from. Just say you come up with a design or product tomorrow, you spend hours and lots of money refining it, for it to become so popular it takes the world by storm. The revenue from that idea could change your life and your family’s life. How would you then feel if every balloon artist, in every town in the country stole your idea and began flouting it cheaper than you could! I am guessing frustrated wouldn’t cover it in the slightest – they didn’t just steal your idea, but they stole your dream life too! Just because you don’t enter the home of the person who owns something, pick it up and walk out with it does not mean you aren’t stealing… Equally just because the person you are stealing from is a business doesn’t change the fact it is theft…
You also need to consider the risks of whether your business and your families lifestyle could cope if the next knock on the door was an expensive lawsuit!
I hope you found this article useful, I know for some people it may not be information that brings joy to their ears, it may not even make me very popular for raising this industry-wide issue. My mission is to help you grow a profitable and sustainable business so you can get paid to do what you love every single day for many years to come! In doing so, I sometimes have to discuss difficult subjects with you, so you can do what you need to do to protect your business and grow.
Until next time… Stay amazing!
Sonia x
To find out more about Balloon Biz Academy and read more of Sonia's great articles visit https://www.balloonbizacademy.co.uk
I hope that you have found this article as interesting and informative as I did! A huge thank you to Sonia for sharing this post!
Happy Ballooning!
Sue
www.suebowler.com
Follow me @suebowler
