So, after some not so good attorney advice, I have made a new friend that is helping me. She has been thru this crap many a time and has a VERY informative website that y'all should visit. It's http://www.tabberone.com/. So I got a bit more calmed down with my new friends help and advice and sent a much more civilized letter to Mr Pan. It is as follows:
Licensed fabric means the fabric is licensed by the rights owner to be manufactured and sold. It does not mean the fabric is licensed at the time it is sold. A license on the use of the fabric requires the person buying it to agree, usually in writing, to conditions on the use of the fabric before paying for the fabric.
When someone releases fabric into the stream of commerce they effectively have relinquished control over the uses of that fabric.
While the pattern on the fabric may be copyrighted, the actual fabric itself is not. The pattern may include images of registered trademarks, such as the logo of the New York Yankees or a John Deere logo, etc. Licensed fabric means fabric that has been licensed by the rights owner to be manufactured and sold. It does not mean the fabric is being sold with a license. Disney licenses Springs Industries to manufacture, distribute and sell fabric that contain images of the Disney characters. That is where the term "licensed fabric" originates. For something to be sold with a license there has to be agreement between the seller and the buyer concerning the terms of the sale. Even though the selvage may make a statement that the fabric is for "non-commercial home use only", that "restriction" is not enforceable primarily because the purchaser does not have agree to the terms before purchase.
Copyright law applies to the use of licensed fabric in the application of the first sale doctrine. Bear in mind, the term "licensed fabric" legally only refers to the fact the manufacturer of the fabric has a license to use the images on the fabric. It does not mean the fabric is "licensed" to the purchaser. "Licensed" products require an agreement between the owner of the product and the potential purchaser. Fabric is not "licensed"; fabric is sold.
In Precious Moments vs La Infantil, 1997, the federal court invoked the first sale doctrine in denying Precious Moments attempts to block the use of its licensed fabrics. Since then, M&M/Mars, Disney Enterprises, Major League Baseball, United Media (Peanuts fabric), Sanrio (Hello Kitty fabrics), among others, have been sued when these companies tried to block the eBay sales of items hand-crafted from their licensed fabrics. Every one of them settled rather than risk losing the issue in court.
"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INT'L, INC. (96-1470), 98 F.3d 1109, reversed.
Copyright Law, Title 17 Chapter 1 §113(c), specifically states:
In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
Before you ask, my attorney agreed with everything that was brought up to him about the content of tabberone's website.