I’m gonna kick this off by stating the obvious. Profiting off someone else’s intellectual property is illegal unless it falls under fair use. Now I’m not going to get into the complexities of what counts as fair use but it can mean a whole bunch of things. Fair use allows other people’s intellectual property to be used if its a parody, used to inform or educate and doesn’t take away profit from the original owner. Honestly there’s so much scope just read this article if you want it explaining for you.
Now that you’ve brushed up on intellectual property law it should be pretty clear that some bookish merchandise isn’t technically legal under certain circumstances unless the license to merchandise has been bought or permission has been given by the author.
So you’re probably wonder how the hell shops like mine even exist?
Well let me tell you and I think the Holly Black situation is a great example to explain this. Holly Black recently sold the license to merchandise based on her books to a small company called TopatoCo. She included in her statement that all unofficial merchandise will be stopped. Contrast this with Leigh Bardugo who did the exact same thing with her licensing but also stopped cease and desists being sent to small shop selling Grishaverse merchandise.
Confusing no? One author is like get off my property (which she is totally allowed to do btw that is not what I’m debating) and another is happy for people like me to continue as far she is allowed to say this.
And this is the problem. Many authors don’t get involved in licensing, they don’t sell merchandise and it’s usually only when their books get very big or made into a tv series that they may have a problem with small business owners. So small business have been allowed to exist and thrive and even if they aren’t selling the licensing to their merchandise they could easily tell us to stop but don’t.
So why not?
First of all I believe small business owners fill a void that authors and publishers have been unwilling to fill. I’m willing to bet 99% of bookish merchandise is not licensed and I’d bet good money that every book box is not asking permission from every author they include in their boxes either.
Authors have been known to comment on and share bookish merchandise and have never said a word. Is this because they lack the legal backing to stop every shop or because they just don’t care until they are looking to get into the merchandise game themselves?
I believe it’s the latter only because the book community is hugely respectful and shops like mine only exist because people love the authors works so much. So if authors as a whole did not like bookish merchandise I feel like they could say something and we would respect their wishes.
As with Holly Black as soon as she announced she wanted unlicensed merchandise stopped everyone started discounting and removing products for sale. No protest.
The arguments and drama only started when the alternative merchandise being offered was vastly more expensive and someone at TopatoCo started being rather rude to people commenting on their Instagram.
As a small shop owner myself I want to be fair and I want to be legal but there isn’t any simple or existing process to get the authors permission and licensing can be expensive. If I am working with a £1 per item profit margin and I have to pay even £50 for a license I’d have to sell 50 of one product to break even.
I’m not saying authors shouldn’t be allowed to profit from their work but I do wish there was an existing process for us small shop owners to be legitimatised without breaking bank.
Shop owners at the end of the day only exist because there’s a huge market that wasn’t being catered for and we do have a value. I’ve seen many people say they have been introduced to books through fan merchandise and that’s marketing they didn’t have to buy. They didn’t have to spend their money on merchandise or artists or supplies. We do all that and we do it because we love books and we love creating.
Maybe that’s my own naive outlook but I think we do have a value and I’d love to see in the future a way for authors and small shop owners to co-exist. Nobody wants to steal money from someone else and that’s not why I started selling.