Asked in Copyright and Intellectual Property for Colorado

Q: Is taking back someones property because they haven't used it in months, without refunding legal?

hello i just wanted to clarify for someone about stealing and they wont listen to my and i need your help!

Theres a business going on where this account sells character for money, but there is a problem!

Their rules arent right, they're forcing people to agree to the rules before they can by and the rules are : "if your purchased character goes unused for more than four months, the original seller has the right to take back/resell the character" - it is like selling a table to someone and go to their homes just taking them back without any refund which is pretty much stealing. i tried to convince them that its illegal and they state they break no laws by doing so. Ive told them that when they sell a character they sell every right to it and its not their property anymore.

Is it legal or not?

2 Lawyer Answers
John Espinosa
John Espinosa
  • Lowell, MA

A: The key here is whether the item in question is tangible or intangible. If it is tangible, like a book, painting, or the table in your example, then they can't restrict your right to that particular tangible item when they sell that item to you. However, if it is intangible like the rights to use a character, then you merely have a license to use the copyright which can be restricted and revoked by the owner. Here is a helpful resource that explains the difference:

Peter D. Mlynek
Peter D. Mlynek
  • Intellectual Property Lawyer
  • Moorestown, NJ

A: A couple of points:

(1) If your friend is making money by making and selling characters, and will be selling them to many people (especially across the state or country lines) your friend really needs to talk to a lawyer to have the lawyer draft or review the sales or licensing agreement.

(2) I don’t know the specifics of your friend’s case, but there is nothing inherently wrong with the rule that requires the purchaser to use the character. Your friend may call it a “purchase”, but it may be more accurately described as a license. The purchase may not necessarily transfer all rights but may transfer only some rights. What is the point? Well, there may be economic reasons. For example, if your friend’s sales agreement makes the purchaser give your friend royalties stemming from the use of the character, then your friend has an economic interest in having the character be used. Or, if a character is used, its popularity may drive more business to your friend.

(3) Although there are differences between a transfer of copyright ownership and transfer of ownership of other property, there is no reason why a tangible property cannot be restricted the same way as in your friend’s contract. The type of restriction with the table that you mentioned, happens all the time. It may not be done as much on the retail end, but it is very common in the business to business sales. The purchaser needs to agree to use the product only in a certain manner. Why does the seller insist on such a restriction? Because unauthorized use may expose the seller to liability, such as due to personal injury or patent infringement. I can certainly see a sale agreement for an operating table restrict a hospital from using it improperly.

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