As the largest online craft retail store in the world, Etsy.com has become the website for aspiring artists to showcase and sell their handcrafted goods. With an easy to use and easy on the eye platform, it is no wonder why artists are lining up to join the Etsy community. But for all the good Etsy does for the underdog artist, many are unaware of the potential legal ramifications they could encounter by using Etsy. This is especially true with copyright infringement. In fact, Etsy is filled with examples of copyright infringement. As Pablo Picasso once said, “Good artists copy, great artists steal.” The problem is, when Picasso said these words he neither anticipated nor did he live in the world we live in today where websites like Etsy have opened up greater opportunity for artists to sue other artists for copyright infringement.
A copyright is a form of intellectual property that gives an owner exclusive right to produce copies of original creative works. Specifically, it acts to prohibit anyone to reproduce, distribute, display or make derivative works of that artist’s creation without the permission of the copyright owner. What complicates the issue of copyright infringement is the fine line between infringement and fair use. The doctrine of fair use is a defense to copyright infringement. It stands for the idea that a non-copyright owner should be allowed to reproduce and use a copyrighted work under “fair use” circumstances, such as for criticism, comment, news reporting, teaching, scholarship and research. However, a quick glance at Etsy reveals many of its members are unaware of exactly what fair use of another’s copyright means.
Whether your use of a particular item constitutes copyright infringement is really a question of what type of license you have. Often times when an artist purchases materials they plan to repurpose, they are given a non-exclusive license allowing them to sell such repurposed items for profit. There are, however, instances where purchasing materials does not give you the right to sell your repurposed items. One such example of this is where you buy fabric that contains a University’s logo from your local fabric store. At first glance, it would seem the ability to purchase this fabric at a nationally recognized chain like Joanne Fabric and Craft Stores would entitle you to repurpose the fabric and sell it to others without the University’s consent. However, this is not the case and if you look closely at the bolt you purchased the fabric from, you will see licensing information stating you are purchasing the limited right to use the fabric for your personal use. In other words, by repurposing the fabric and selling the repurposed items on Etsy you are no longer using the fabric for personal use, but for commercial use. As a result, your use of the fabric would constitute copyright infringement.
Another problem many Etsy users often face are issues of trademark infringement. A trademark differs from a copyright in that a trademark protects the name, terms and symbols that are used to identify of the source of a product. Trademark infringement can arise in a number of different situations. Turning again to the fabric example above, use of the University’s logo on a pair of pajama pants would also constitute trademark infringement. By using the fabric with the University’s logo, such use has the risk that the buyer believes the University has endorsed and stands by the quality of this product. However, this belief would be false and the use of the fabric would constitutes trademark infringement.
If you are currently using Etsy to sell your artwork or handmade items, chances are you have either received or are aware of the Etsy Copyright Infringement or Trademark Infringement Notice. It is important that you take these types of notices seriously and to determine what your rights are from someone knowledgable in trademark and copyright laws. Depending on the allegation, Etsy generally gives you time to remove the item before deciding to shut down your store. However, in some instances where the copyright infringement is flagrant Etsy may not even give you notice of your violation and shut down your store immediately. For many who rely heavily on their Etsy sales, this is simply not an option. It is therefore imperative that you know your rights.
If you have received a notice from Etsy informing you that you have infringed on another person’s copyright or trademark and wish to know what your rights are, contact The Law Firm of Sausser & Spurr, LLC for a free consultation.
Published August 26, 2013 by Alex Spurr.