Another big problem with copyright infringement comes into play when something has the potential to be confused with official, licensed merchandise authorized by the intellectual-property owner, as stated in U.S. trademark regulations. In the case of the Jayne Cobb hat, It wasn't necessarily the hat itself that posed the issue, but rather the fact that Lucas, Jessa, and so many other Firefly crafters called these hats "Jayne Cobb hats" using trademarked names and references to the show.
"Clarity on official merchandising is big," Tushnet says. "A person referencing Firefly is different from thinking [the item] came directly from Fox."
But using names isn't necessarily exclusive to trademark owners, either. "As long as artists are making it clear that [the item] isn't from Fox, trademark law should not prohibit [the language used]," Sunder says. This type of speech is protected, as it is considered nominative use, according to Sunder. If the only way to identify something is to call it by its trademarked name, then the name is okay to use.
The case of the hat is particularly interesting because of the item itself. According to Tushnet, clothing designs themselves cannot be copyrighted, only the pattern for the design. It's possible that Fox now owns an official pattern to the Jayne hat, but Tushnet doesn't think the design of the hat itself is protectable.
"There's no such thing as copyright on a pom-pom hat," Tushnet says. "This is America. You can make any sort of terrible intellectual-property claim you want, but it doesn't mean it's right."
In general, it is unlikely that a copyright holder will come after fan-art creators unless the fans are profiting from selling protected materials. Sunder believes that companies will leave fans alone if they can, because they don't want to receive major backlash from the fan community.
Still, fans can run into trouble even when they're not trying to make a profit on their creations.
Graphic designer Sarah Buczek encountered legal difficulties when she tried to screen-print a scene from a Harry Potter tale onto a pair of Keds sneakers. She drew the image by hand, and uploaded her design to Zazzle under the name "Harry Potter Shoes." Zazzle is different from Etsy—it's an online marketplace for users to upload their original designs and create their own products, from shoes to mugs to iPhone cases. She had no intention of selling these shoes—she insisted that they were a gift for a friend, and placed an order for only one pair. Still, Zazzle refused to print them, claiming that the image was protected under copyright laws.
"I explained that they were my drawings—hand-drawn by me with Sharpie, scanned into Photoshop, and then repainted—but I was shot down," Buczek told TechHive.
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