As a marketplace, Etsy serves, on the one hand, as a place where people come to buy and sell, but on the other hand, it’s also a place where ideas and inspiration flow. Sometimes this is in a friendly way, and sometimes in a not so friendly way, and sometimes in a misinformed way. In any case, there’s a lot of anxiety on the part of sellers about copyright and rightly so. The Storque and Sarah, Etsy’s in-house attorney, got together to come up with some information about what U.S. copyright is and what it means for artists in the U.S. right now. Etsy does have international sellers, but we just cannot provide info for each and every country where Etsy sellers reside. But it would be great if international sellers can add useful info in the comments below.
Below you’ll find the rationale behind the way Customer Support and Sarah deal with copyright issues on Etsy, as they come up between corporations and sellers, as well as between sellers. We hope that this post gives sellers a good picture of Etsy’s role in copyright disputes and what sellers can do if they find themselves in a sticky situation.
Etsy takes intellectual property rights very seriously. Under United States copyright law, only the legal or beneficial owner of an exclusive right under a copyright can take action against possible infringement. That means that it is up to the copyright owner, and not a concerned third party, to decide what can or should be allowed. Why is the law written that way? That third party person may not know all the details about the copyright or if there is a licence agreement. A third party might not have the whole story. Also, misrepresenting an infringement may result in legal costs. (For more information, see related Storque article, Etsy, I See Copyright Infringement.)
If you have an intellectual property related issue on Etsy, there are a few ways you can choose to respond. For example, you may decide to contact that person directly, as in you can privately convo them or email them. Don’t air your complaints on the forums or call someone out publicly! You want to be careful about accusations, because it’s possibe to make things worse when you really mean to make things better. Etsy wants to hear from you before things get sticky! Communication can head off a lot of further troubles! Sometimes the issue is a simple misunderstanding and you’ll benefit from talking it over. Or you may want to talk to an attorney and get some advice or do some more research.
Here’s how to report an intellectual property issue to Etsy:
1) Flagging
If you see an item on Etsy that does not comply with Etsy’s Terms of Use or other site policies, please report it here.
2) Formal Infringement Complaint (following Etsy’s Copyright and Intellectual Property Policy)
Etsy’s Policy covers allegations of copyright infringement as well as other intellectual property infringements (for example, trademarks and patents). It also requires a physical signature (by fax or regular mail – not by email, except by prior agreement). The policy is consistent with Digital millennium Copyright Act (DMCA).
A complaint according to Etsy’s Copyright and Intellectual Property Policy is a serious matter. You may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity infringed on an intellectual property right. In fact, in Online Policy Group v. Diebold, Inc. a company that sent an infringement notification agreed to pay over $100,000 because the materials were protected by the fair use doctrine. Our point in writing this article is to explain that the policy and the U.S. copyright laws exist to make sure that claims are legitimate. Taking a claim to this formal complaint stage is pretty serious business.
If you are not sure whether the material on Etsy infringes on one of your intellectual property rights, please contact an attorney first or go the route below as a next step.
Each intellectual property issue is different. The best option for you depends on the circumstances. Please check out www.copyright.gov for more information on U.S. copyrights, www.uspto.gov for information on trademarks, and http://www.etsy.com/copyright_policy.php for Etsy’s Copyright and Intellectual Property Policy. Also, check out my other Storque articles on this subject. Please talk to a lawyer if you have specific questions.
SarahSays is Etsy’s inhouse attorney. She has recently published an e-book Copyright for Artists and it’s available through her Etsy shop, AttorneySarah.
This information is for educational and informational purposes only. The content should not be construed as legal advice. The author and Etsy, Inc. disclaim all responsibility for any and all losses, damages, or causes of action that may arise or be connected with the use of these materials. Please consult a licensed attorney in your area with specific legal questions or concerns.
Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.
22 comments
Sign in to add your ownterryann says:
this comment is really a question for sarahsays... Is there a "test" per say... Something that would help an individual decide if something they created is either/or Copyright worthy or more ... need of a patient... something that would benifit from a tradmark... or just a creative way of doing something that is already out there... I invision a list of questions.... If/Then type of matrix.. with an answer at the end of the process... I am wrestling with this myself, and each bit of info seems to lead to more questions. OK.. not to heavy I hope.
4 years ago
stereoette says:
sarah - yay! so clear, so concise. Hopefully this series will continue and will be clear to everyone.
4 years ago
soapbythesea says:
What was the Diebold case about? Why did they end up paying $100,000? Was it because their complaint was found to have no merit? More info, please!
4 years ago
eclipse says:
"Alternately, there are three ways to report an intellectual property issue to Etsy: 1) Flagging If you see an item on Etsy that does not comply with Etsy’s Terms of Use or other site policies, please email flagged@etsy.com. " But any time you flag an item (for any reason), the autoreply says at the bottom: "If you are reporting Copyright Infringement, or require a reply, please email abuse@etsy.com." So those auto-emails are telling people that flagged@etsy.com is *not* the correct email to use for intellectual property issues.
4 years ago
3sevensmoon says:
I just got a response email from an authored bead artist. I had sent her an email and asked if I could make some of her designs from one of her books and sell them as long as I gave her full credit for the design. She graciously said that it would be fine. I design many of my own items but some friends have asked me to do some designs they've seen while browsing through my books and magazines. I certainly can't do them for free, hence the letter to the artist. I firmly believe in thwarting copyright infringement but also feel that open communications with the original designer is good and friendly business. BUT, the original artist MUST be given full credits if they are okay with it.
4 years ago
DustandClay says:
Sara, I would like to know if the use of this avatar and selling of this Mug constitutes infringement? If I am allowed to sell it- fine. If not, that is also- fine. I just want to know if I should take it down, or go on with business as usual. I have had it as my avatar for quit awhile and have sold several. It is no big issue with me- I will gladly remove it if there is a problem. I just don't want to be contacted later that there is a problem. Just inform me what I should do. If there is a form I should sign for permission where would I find it? Bettye
4 years ago
SarahSays says:
terryann, intellectual property law is pretty complicated and sometimes the decision on whether to copyright, trademark or patent a work is a business decision. I hope to use this column as a way to discuss certain issues. Check out the links in the article for more information. You may also talk to an attorney about a specific question. soapbythesea, in the case I mentioned, the court found that Diebold’s blanket cease-and-desist notices were a blatant abuse of copyright law. The facts of the case deal with online content and publishing the content. The case shows that if a company makes false allegations, the company can be held responsible. Also, it shows that a venue (similar to Etsy) is often in the middle of these types of issues. 3sevensmoon, thanks for sharing your story! Communication is very important. If you see an item that does not comply with a Site policy, you may flag it. There are times where an item may violate more than one Site policy. Eclipse is right: if your concern is *only* about an intellectual property issue, please do not flag it. Instead, use one of the other methods for notification. DustandClay, I think you’re referring to Etsy’s up and coming trademark program, concerning Etsy’s trademarks. The forms are not available yet.
4 years ago
executeme says:
Good information. Thank you, Sarah!
4 years ago
switchywitchydj says:
I was told that if you purchase something copyrighted (like a piece of fabric) you have paid for that copyright use. If you make something else out of this, whether for selling or for yourself or a gift, this is not considered copyrighting since they have no control over what you do with the fabric afterwards. Also, you have paid for the use of this when you purchased the fabric. have I been misinformed?
3 years ago
Lunatiger says:
Great information thanks!
3 years ago
annsjewelrydesign says:
Thanks for the help. It is difficult as I have heard forever that there is nothing new under the sun. Ann
3 years ago
rctees says:
Sarah, Thanks for this much needed info....... I have read and will go back and re-read the information given (a little too much to take in at once) : ) I'm relatively new on Etsy (starting actually selling Feb. 09) and still have much to learn! I appreciate the information! toni
3 years ago
ddemarAZ says:
I am now listed in your Shop Local Directory located here in Phoenix, Arizona. I have several items listed on Etsy for the holidays and for everyday use. I am in north Phoenix, & am available to sell any of my hand made items at your convenience. All my items are ready to sell & are described accurately. Contact me first, since I live in a gated community. Looking forward to more Christmas sales.
2 years ago
simplicityisbliss says:
HI Sara! i was wondering if you could help me out with some advice. I currently bought a coat from someone on etsy and i need to resale it because it does not fit( no bid deal) but the problem is i am using her photos she used to post the coat originally. although I did credit her in my description am i still in the wrong? what should i do? How should i handle this. I need to sell the coat and i cant do so with out those photos? thank you and i hope you can get back to me. -simplicityisbliss
2 years ago
GatheringSplendor says:
Marking
2 years ago
TutusChic says:
It would be nice to see some tips as to how to prevent copyrighting since this topic is not allowed in the forums! For example, ways to help shop owners be vigilant like Google Alerts for similar products would be an example. How about a way to list offenders? I know you all are afraid of legal implications but something to help creative artisans not be taken advantage of on your site would be marvelous! I agree that legal fees are expensive, that you are a third party and that it is best to handle it ourselves. But since we are a community is there a way to work together in solidarity against thieves? Taking our photos is an obvious offense for example and easily proved with a screen shot! What are your ideas Etsy?
1 year ago
aowcannon says:
OK so what are the things I need to do when someone has STOLEN an image that is MINE..of My daughter...wearing a costume I made?? what is the steps for that???? She stole the image off of my Myspace, Facebook or Blog Im sure...
1 year ago
majababy says:
I would like scan and use scrapbook paper for my banner background and use the scanned paper for baby announcements and christmas cards that I want to sell. Is scanning scrapbook paper for these uses copyrighted?
1 year ago
nellyvansee says:
Thanks for the information! I have a question, is it only on my computer or my shop is featured in the little geolocator picture example? Or it does that for all the shops?
1 year ago