The Most Highly Debated Handmade Controversy: American-Made Handmade

by Daniel Grant

Courtesy of Handmade Business

It's good when we all speak the same language--you dig? Every profession has its own insider jargon, which sometimes gets in the way, such as the legal profession's Latinisms. For example, a fortiori, meaning even more so, ab initio, meaning from the beginning, and the sports world's slang word juice--also known as steroids.

The art world has its own insider vocabulary where terms may seem a bit comical, such as houseable--the artwork fits in a normal-sized living room, and occasionally contradictory--objects in a museum may be on "permanent" loan. Auction houses take chandelier bids, which are bids that no one actually made or were seemingly made in order to get the price higher, while artists and art galleries sell "original" prints.

Many of us wish to be good stewards of the environment and look to buy all-natural, sustainable, or organic products. Unfortunately, those terms do not have clear-cut definitions and, in fact, tend to be defined by whomever is using them. Domino's promotes artisan pizzas, and Dunkin' Donuts offers artisan bagels, which give the impression of something individually prepared rather than mass-produced.

Undoubtedly, customers would be displeased if the pizzas or bagels they had bought really tasted any different than those they had purchased previously. The term "artisan" isn't literal, but just to suggest that someone in the company cares about taste or quality.

Handmade by two--or more--hands

The term "handmade" often becomes contentious in the arts and crafts field, particularly when more than one person may be involved in the production of an item. The rules of the Ann Arbor Summer Art Fair state: "All work must be the original design of the artist; the essential work required to make each finished piece must be done by the artist. The artist is expected to be the major contributor of the time required in the essential production of the work."

Helpers or assistants do not replace the artist in the production of a piece. They are permitted to assist in the non-essential and more mundane processes that go into the production of a finished piece, or when elements of an item--such as beads on a necklace--are imports or just manufactured elsewhere.

What about mostly handmade?

Made in USA According to the rules for entry into the Belleville, Ill., Art on the Square, "Items that are mass-produced, made in workrooms or factories, machine-made from molds, pre-fab forms, patterns, or from commercial kits are not allowed."

Not every fair makes hard-and-fast rules. Rick Bryant, executive director of the annual Central Pennsylvania Festival of the Arts in State College, noted that "handmade may be an issue for some of our customers, but it isn't one of our criteria for selecting artists. Many people use commercially available materials and buy from catalogues." He added that the festival "used to require that t-shirts being sold by the artists be made in America, from cloth produced in the United States, but we no longer care."

The term "handmade" is not used in the Central Pennsylvania Festival of the Arts prospectus, but the concept remains: "All work exhibited must be original artwork produced by the artist. Work that has been produced from commercial kits, patterns, plans, prefabricated forms, or other commercial means is not permitted."

The online crafts marketplace, Etsy, takes a more expansive view of the term, according to its Dos and Don'ts page: "On Etsy, the term 'handmade' can additionally be interpreted as hand-assembled or hand-altered." A company blog adds: "We recognize that artists and artisans are imaginative and resourceful with varying skills, expertise, and aesthetics. We don't want Etsy to be in the business of regulating or defining the limits of creativity. There is room in our community for a broad range of creative expression and techniques."

For most artists and craftspeople, "handmade" is a promotional term, rather than a legal concept, although the Federal Trade Commission (FTC) has rules about its use. "It is unfair or deceptive to represent, directly or by implication, that any industry product is hand-forged, hand-engraved, hand-finished, or hand-polished, or has been otherwise hand-processed, unless the operation described was accomplished by hand labor and manually-controlled methods which permit the maker to control and vary the type, amount, and effect of such operation on each part of each individual product."

So, who cares?

The people who are most apt to bring a complaint about an artist's or craftsperson's unfair use of the term "handmade" are other artists participating in a fair, bringing their sharp eyes to bear on the booths of their competitors. "There is a lot of self-policing at fairs," Bryant said, likening participants to children in the back seat of the family car. "They don't want others to have a perceived commercial advantage," Bryant added.

At times, however, artists do correctly identify competitors as cheating, which would be brought up before a fair's standards committee and may lead to a participant being told to leave. Bringing a legal claim for deceptive advertising may be difficult, as a California district court's 2015 decision in favor of Maker's Mark Distillery reveals. Maker's Mark, which is owned by Jim Beam, had included the terms "handmade" and "handcrafted" on the labels of its whiskey, which was challenged by a group of consumers who claimed that the process of making its bourbon "involves little to no human supervision, assistance, or involvement," and instead is reliant on a "mechanized and/or automated production process." The court concluded that no reasonable person could understand the term "handmade" to mean literally by hand and that substantial equipment was not used.
Hand Made

There is no case law regarding works of art, though the use of digital photography, foundries, and print studios make it clear that artists increasingly are team leaders or designers, rather than one-man bands. "I think using a foundry in Asia would make the statement 'Made in America' inaccurate," said Nicholas M. O'Donnell, an art lawyer in Boston, Mass., but no lawsuits have been filed to date. Again, the issue is less how the objects are produced and more how they are marketed to the public.

American made--or not?

Another phrase that is defined by the FTC is "Made in America"--or, more properly, "Made in USA." Most visitors to arts and crafts fairs in the U.S. commonly assume that items for sale are American-made, unless the artist or craftsperson is a foreign national.

"Locally sourced matters to many people," said Karen Delhey, executive director of the Guild of Artists and Artisans, which sponsors the Ann Arbor Summer Art Fair, "but it doesn't disqualify someone if what they are selling was not made or assembled in America."

Similarly, Linda Post, director of the Paradise City Arts Festival, stated: "Where materials are sourced is not of paramount importance to the visitors to our festivals, or to us when we select artists. We look for creativity, imagination, and technical proficiency." Artisans might only find themselves afoul of the law if they promote their creations as "Made in USA" when they were not.

According to the federal agency, "For a product to be called Made in USA, or claimed to be of domestic origin without qualifications or limits on the claim, the product must be 'all or virtually all' made in the U.S. The term 'United States,' as referred to in the Enforcement Policy Statement, includes the 50 states, the District of Columbia, and the U.S. territories and possessions.

Defining American-made

As standards of what is and is not allowed, the FTC offers some examples, such as a propane barbecue grill that is wholly produced in Nevada with the exception of the knobs and tubing, which are Mexican imports. A "Made in USA" claim is acceptable because the knobs and tubing make up a negligible portion of the product's total manufacturing costs, and are insignificant parts of the final product.

On the other hand, a table lamp assembled in the U.S. from American-made brass, an American-made Tiffany-style lampshade, and an imported base could not be identified as "Made in USA," because the base forms a significant part of the final product.

Of particular interest to jewelry makers is the potential adoption by the FTC of new rules prohibiting them from labeling their creations as "Made in USA" if the precious stones were sourced outside of the United States and its territories. However, if jewelry is not labeled as such, or claimed to be "Made in USA," there could be no action for marketing deception.