Search results (tags) for: "legal info for artists"

Etsy, I See Copyright Infringement

Thu, 24 Jul 2008 20:17:00 -0000

What's flagging? It's how Etsians can report items to Etsy admin. People flag for many reasons. Copyright infringement is just one example, and SarahSays will be discussing this below.

Another example: if concerned members of the community spot someone selling a mass-produced item on Etsy, they can notify the Etsy admin (without the suspected seller knowing who the reporter is) by clicking the link to "Report this item to Etsy." Then the matter is up to the Etsy admin to investigate in a way that doesn't involve calling sellers out in public.

However, concerned Etsians may not understand what qualifies as copyright infrigement and Etsy's role in the process, and as a result flag too much. In this article, SarahSays will explain copyright infringement and the role of the copyright holder.

Concerned members of our community often flag items due to the appearance of infringement. For example, a member may flag a handmade t-shirt with a silk screened image of an iconic cartoon character. Later, the member may become frustrated, disappointed or confused when the item remains on Etsy.

Intellectual property rights are very important to Etsy. When Etsy receives a complaint from a copyright owner, Etsy, as a venue, attempts to remedy the situation. Etsy treats all complaints seriously, whether the complaint is from a well known company, an individual, or from an Etsy member.

However, under United States copyright law, only the legal or beneficial owner of an exclusive right under a copyright is entitled to take action. In other words, copyright owners are responsible for policing their own rights and bear the cost of policing.

In the case of the silk screened t-shirt, the owner of the copyright of the cartoon character has the right to decide how to proceed. If copyright owner believes that the use is infringing, the owner might ask a seller to stop selling the items. Alternatively, the owner might ask the seller to enter into a licensing agreement. The copyright owner could like the t-shirts and the publicity; the owner might choose to allow the use. It is not up to Etsy or a community member to decide what use of a character should and should not be allowed.

Also, an Etsy seller may have permission to use a copyrighted image in their handmade items. Some Etsy sellers have licenses with companies to use certain intellectual property. In fact, certain Etsy sellers have entered into agreements with other Etsy sellers for the benefit of both parties.

Let me know what you think about this topic!

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.

NOTE: This was originally published on October 30, 2007. We changed the timestamp to bring it up to the top for a refresher!

Another Perspective on Inventions and Patents

Tue, 08 Jul 2008 19:38:00 -0000

Although SarahSays is an attorney licensed to practice law in the State of New York, she is *not* a patent attorney. However, she does understand patent law a bit better than most of us. This article examines U.S. patent law and provides some fun examples from the entrepreneurial and creative field of U.S. patents.

The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads: “Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As I mentioned in a previous article, a U.S. patent gives an inventor the right to exclude all others from making, using, importing, selling or offering to sell the invention for up to 20 years without the inventor's permission.

That means that for a limited time the owner of a patent is entitled to make and sell the invention, free from competition. The owner of the patent can also license the patent, so that someone else can make the invention or the owner can go to court and ask a judge to stop another person from making or selling the invention that is defined by the claims in the patent. In effect, a patent can be a powerful legal tool which allows the patent owner the sole right to a competitive edge in the market for the term of the patent.

U.S. patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained. In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law.

Some patents have protected historical or famous inventions like Eli Whitney’s Cotton Gin or Thomas Edison’s Flying Machine.

However, there are many patents that may not have such historical significance (thanks patentoftheweek.com).

Sick of your ordinary toilet? How about a mouth-shaped urinal or a toilet tank aquarium.

And don’t you just hate it when you have to blow out those pesky candles on your birthday cake? Good thing in 1964 Paul Bosak patented his birthday cake candle extinguisher! And, of course, the next time my computer is on the fritz, I’ll be sure to thank the inventor of my computer repair kit.

Sure, I’m smiling as I read over some of these patents, but remember, each patent represents a lot of time and effort (not to mention money) put into the invention. And it’s likely that the inventor will police their patent for the term of the patent.

For more information on U.S. patent law, check out the United States Patent and Trademark Office’s website. If you want to search for a patent, try Google’s Patent Search.

What do you think about patent law? Please share any interesting patents in the comments below!

You be the Judge: Naked M&Ms

Tue, 01 Jul 2008 16:01:00 -0000

I’ll admit it: as Etsy's in-house attorney, I love reading legal disputes and thinking about what important issues each side should stress. I especially like to analyze pending copyright, trademark, and patent cases. I daydream about what points I would argue if I were the lawyer for each side and then I put on my imaginary judge’s robe and make a decision.

Well, here’s your chance again. If you were the judge, what would you decide on this real-life on-going legal battle? (Remember, this issue hasn't gone to court yet).

Robert Burck (aka the Naked Cowboy), clad only in underpants, boots, a cowboy hat, and a strategically placed guitar has entertained New York City Times Square tourists for over ten years.

Mars, Inc., which makes M&Ms, and Chute Gerdeman Inc., an Ohio advertising agency, released two Times Square billboards and print ads showing an M&M strumming a guitar, dressed in a white cowboy hat, cowboy boots and underpants, alongside views of New York.

Recently, Burck filed a lawsuit alleging that the ads violate his right to privacy and infringe on his trademark by “using his likeness, persona, and image for commercial purposes without his written permission and falsely suggesting that he endorses M&M candy.” Burck is seeking up to 100 million dollars in punitive damages plus attorney’s fees.

According to a CNN article, Mars would not comment on matters of litigation. The Wall Street Journal reported that Mars removed the billboard after the lawsuit was filed.

So what do you think? Are the advertisements confusingly similar to Mr. Burck’s trademark, in relation to similar products or services? In general, the court will look at eight elements to measure likelihood of confusion including the strength of the Naked Cowboy’s mark, the degree of similarity between the two marks, and the proximity of the products. In the comments below, you be the Judge!

Check out your previous judging opportunities here and here!

Legal Mumbo Jumbo: What's SarahSays Saying?

Tue, 10 Jun 2008 15:51:00 -0000

Sometimes lawyers (like myself) use words and phrases that should be reserved for a legal brief, a law school exam, or Black’s Law Dictionary.

But why? Why do lawyers get all wordy with these words? Maybe because of tradition, or maybe because (apparently) attorneys used to charge by the word, and now many lawyers charge by the hour.

In this Storque article I hope to shake some of the lawyer training out of my head and explain four legal concepts in artist-friendly, non-lawyer speak. Of course, my definitions only provide a brief overview of these rather complex legal theories.

[Intellectual Fruits by ThumbelinaCardCo]

Intellectual Property
Before discussing intellectual property, let’s look at tangible property. Tangible property exists in real-life form, like an apple or a stop sign. Intellectual property cannot be touched; intellectual property is intangible. Intellectual property includes mainly ideas and designs. Tangible property, like an apple, cannot be used once it’s gone, but intellectual property can still be copied and distributed without using up the original.

Think about it this way: Leonardo da Vinci spent time, effort and creativity to produce his famous Mona Lisa painting. But prints of the work can be reproduced without much effort and without touching with his original art. The painting itself is tangible property, but the design is the intellectual property.

Copyright
U.S. copyright law is grounded in the U.S. Constitution, which states “the Congress shall have power...to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Congress enacted the first federal copyright law in May of 1790, and the first work was registered within two weeks. (Find out more about this here.)

U.S. copyright is a form of intellectual property protection for creative expression like literary works (books), musical works (songs), pictorial, graphic and sculptural works (for example, advertisement, collages, dolls, jewelry designs, mosaics, and photography). Copyright does not protect, for example, ideas, discoveries, facts, short phrases, or symbols.

The holder of a copyright has many exclusive rights, including the right to make copies of the work and to prepare “derivative” works based on the work. A “derivative” work usually has some kind of transformation, like a book made into a movie.

I could go on and on about the many facets of copyright law. In fact, I wrote a book on the subject. For more information on U.S. copyright, please check out www.copyright.gov. For a government site, it’s very user friendly. Also check out Etsy’s Copyright FAQs. You might also be interested in learning about Creative Commons licensing.

Trademark
Trademarks have their roots in the arts. Ancient Greek and Roman potters marked their wares and medieval paper makers watermarked their papers.

Today, in the U.S., a trademark is a word, logo, symbol, or design that identifies the creator of a product. Trademarks are associated with a particular quality and character of goods, which is why companies and individuals work so hard to protect them. For example, the Coca-Cola® wave logo distinguishes the soft drink from other brands, so that no matter where a bottle of Coca-Cola is purchased, you will know what to expect of this product.

A trademark can be registered in a specific state or across the United States. A company that operates solely in one state with no plans for expansion may benefit from state registration. Ownership of a mark can be lost if the trademark is deemed abandoned or if a mark becomes “generic.” In fact, “cellophane” used to be a brand of plastic wrap, but because it was so widely used to identify all forms of plastic wrap, the courts decided the mark was no longer valid.

For more information on U.S. trademarks, check out www.uspto. Also, check out this article about how to search the trademark site.

Patent
According to the U.S. Patent and Trademark website, the first U.S. patent was granted in 1970 to Samuel Hopkins of Philadelphia for “making pot and pearl ashes” a cleaning formula used in soapmaking.

A “utility patent” protects how or the way an invention works. This includes processes, machines, and products that are manufactured. A “design patent” protects the appearance of things like jewelry, toys, clothing, and furniture, rather than the way these things work. A U.S. patent gives an inventor the right to exclude all others from making, using, importing, selling or offering to sell the invention for up to 20 years without the inventor's permission. In order to acquire a U.S. patent, the inventor must file a patent application with the United States Patent and Trademark Office within one year of the first date on which the invention was in public use or for sale. Patents can be time consuming and costly to obtain.

For more information on patents, visit www.uspto.gov.

Any legal words, phrases, or concepts you want me — Etsy's inhouse attorney — to clarify in a future Storque article? Let me know in the comments or shoot me a convo!

You be the Judge: Vuitton and Darfur

Tue, 06 May 2008 18:41:00 -0000

Well, here’s your chance again. If you were the judge, what would you decide on this real-life on-going legal battle? (Remember, this issue hasn't gone to court yet…and it will likely be decided in a Danish — not U.S. — court).

Nadia Plesner is a Danish artist. According to her website, the illustration “Simple Living” was inspired by “the media’s constant cover of completely meaningless things. My thought was: Since doing nothing but wearing designer bags and small ugly dogs is enough to get you on a [magazine] cover, maybe it is worth a try for people who actually deserve and needs attention.” One hundred percent of the profits from the Simple Living t-shirts and posters will be donated to Divest for Darfur.

In February, 2008 an attorney for Louis Vuitton Malletier (“Louis Vuitton”) sent Plesner a letter asking that she discontinue making and selling the Simple Living products. According to Louis Vuitton, the illustration infringes on the company’s intellectual property rights, in particular the Louis Vuitton Monogram Multi-Color Trademark, to which it is confusingly similar.

Plesner responded to the letter, arguing freedom of expression. She said she will continue her Simple Living campaign in order to raise money for the victims of Darfur. Louis Vuitton sued her and according to torrentfreak.com the company demands $7,500 for each day she continues to sell Simple Life products. Plesner found a lawyer to represent her free of charge.

Although this is likely a question for the Danish court, what do YOU think? Is there risk of confusion? What about the fact that Plesner is raising money for charity? Feel free to discuss Louis Vuitton and any other people or companies that may also have issue with Plesner’s illustration. In the comments below, you be the judge!

Read Sarah's previous post in the series Apples to Apples and all her Legal Info for Artists pieces.

You be the Judge: Apples to Apples

Tue, 15 Apr 2008 18:30:00 -0000

Well, here’s your chance. If you were the judge, what would you decide on this real-life on-going legal battle? (Remember, this issue hasn't gone to court yet).

GreenNYC is New York City’s campaign for environmental sustainability of the air, land, and water. The GreenNYC logo shows a sweeping letter “N” forming the shape of an apple with a stem and a leaf. This logo can be found all around The Big Apple, including on bus shelters and hybrid gasoline-electric taxicabs.

Apple, Inc. is popular technology lifestyle brand that, among other things, designs and makes computer products and personal electronics (aren't we all familiar with it?). Apple’s logo is the shape of an apple with a simple leaf and a bite out of the right side.

NYC & Company applied for a registered trademark for the GreenNYC logo, but Apple filed a formal opposition on January 16, 2008. Apple argues that GreenNYC’s logo is very similar to the famous Apple logo, in appearance and commercial impression. Apple also claims that certain GreenNYC goods are identical, or highly related to goods and services Apple has offered. Therefore, GreenNYC’s logo will likely cause dilution of Apple’s marks and consumer confusion.

According to a Wired.com article, the City believes that Apple’s arguments lacks merit and no customer is likely to be confused.

As I explained in my previous trademark article, U.S. trademark law is meant to protect consumers from being confused about where a product comes from. So what do YOU think? Is the GreenNYC logo too close to the Apple logo as to cause a risk of confusion in your mind? In the comments below, you be the judge!

Team Tips: Know Your Contest!

Mon, 07 Apr 2008 17:03:00 -0000

Team Tips are a weekly series of tips and ideas from the Etsy Teams. You can find more Teams Guides and Resources at team.etsy.com.

Many Teams get very excited about contests, challenges and competitions as a way to promote their Teams. Etsy admin love a good challenge and we've held some great contests, as well, but it's important to make sure you're abiding by local laws for your contests, no matter how big or small your Team. Before your Team gets ahead of itself in offering up a prize, check out this Storque article about Contests on Etsy from SarahSays (Etsy's legal counsel) and sarawearsskirts (Etsy Teams Coordinator).

For more team tips, please check back each week! We'll be posting tips here in the Storque, as well as on the Teams Resource page. You can also keep up with Team Tips, news and ideas by signing up for the Etsy Teams email list! Keep up the great work, Etsy Teams!

How-to Research Trademarks

Tue, 01 Apr 2008 17:41:00 -0000

The next time you’re eating a candy bar, a bag of chips, or even breakfast cereal, take a closer look at the packaging. You may see various symbols following the brand name or the logo. What do these symbols mean?

Some of these symbols may have to do with trademarks. The symbol TM (for trademark) and SM (for servicemark) may indicate that someone is claiming the identifier as a mark but it has no legal significance. The ® symbol is an international symbol to show that the mark is registered at the national level (in the U.S., that’s on a federal registrar). However, a mark may be protected even if it is not registered at the national level.

As I explained in my pervious article, a trademark is a word, phrase, design, or other feature that primarily serves to identify the source of a product or service. These symbols may indicate that someone is claiming a mark as a way to identify the source of a product. If a mark is descriptive and weak, using the TM symbol will not improve its status.

The United States Patent and Trademark Office (USPTO) website has a free database of all marks that have been applied for, including those that were refused. Navigating this site can be confusing! So try the following steps:

1) Go to www.uspto.gov. Click on the “Trademarks” link on the left hand side. Then select “(3) Search TM database (TESS).”

2) Choose “New User Form Search (Basic).”

3) Type in your inquiry in the “Search Term” field and click “Submit Query.” You can also narrow the search by using the advanced features. Once you have viewed the results of your search, click on your Internet browser’s “back” button to search again. Remember, this database only contains marks with current or expired federal United States trademark registrations. It does not contain registrations from other countries or US states (state registers only record marks used within that state).

Remember, if you search the USPTO website and find no matches, the mark may still be protected. This is because the United States has no centralized national register: a mark may be registered in another country, a mark may be registered on the state level, and a mark may be protected even if the mark is not registered anywhere.

So put down your snack (just for a second) and take a closer look at the symbols on the packaging. And remember, some business names, product names, or brand names are also registered trademarks. If you wonder whether a word or phrase is a registered trademark in the U.S., try doing a trademark search on the USPTO. It's a good place to start in your research!

For more articles by SarahSays, Etsy's inhouse attorney, check out her Legal Info for Artists Featured Column. You can ask general questions below or suggest article topics in the comments. But don't ask any personal business questions (best to keep that stuff private, y'all!).

Etsy Trademark Permissions Program: This ain't no Cease and Desist

Fri, 21 Mar 2008 18:45:00 -0000

*UPDATE* This article was originally published on January 22, 2007. Since that time, a bunch of awesome Etsians have sent their information to trademark@etsy.com. Thanks so much for understanding why we have this program and thank you for your patience. Starting April 1, 2008, Etsy may approach members who have not contacted us about using trademarks on products. So if you currently use the name “Etsy” or another Etsy trademark in a product for sale in your Etsy Shop, please read this article and contact trademark@etsy.com with the necessary information.

SarahSays is Etsy's in-house attorney, and she spends much of her day translating Legalese into plain English. She previously posted a Storque article about the history of trademarks and how they work today. Below, she's introducing an Etsy program that will effect some sellers: it's a way for the larger Etsy company and its thousands of sellers to cooperatively and collectively use the Etsy trademarks. But here's the thing: we have to communicate with each other about it! And below, Sarah details what we need to do.

I am always amazed by Etsy’s dedicated and creative community. Many sellers and buyers have expressed a personal connection to Etsy by using the word “Etsy,” its logo, or other Etsy Marks on products, in running a website, in hosting an event, and in creating promotional materials. This use may seem like a win/win situation: the member uses the Etsy name to promote their shop and all of Etsy benefits from this promotion.

However, the name Etsy, and other Etsy graphics, logos, designs, page headers, button icons, scripts, and site feature names are registered trademarks or trademarks. What does this mean for the Etsy community and the Etsy marketplace? How can we reconcile all the legal stuff with our inclusive and proactive community? These are tough questions for us Admins, and we've been discussing it with you in the forums. Here's the background, in a nutshell.

If Etsy allows just anyone to use marks similar to Etsy’s trademarks in any way, without permission, Etsy could lose its trademark rights. If Etsy loses its trademark rights, Etsy will be unable to stop others from using the Etsy trademarks. Imagine if you discovered a product with the word Etsy on it. Imagine that this product was for sale at a very un-Etsy place. Not only that, but the product was mass-produced in the most terrible of conditions. Well, Etsy does not want things like this to happen. To prevent situations like this, Etsy must have a permissions program in place so Etsy can protect its brand and stop this sort of misuse.

Therefore, Etsy is instituting a trademark permissions program. Through this program, members will describe how they'd like to use Etsy’s trademarks. Applications will be reviewed, and in most circumstances limited permission to use the approved trademarks will be granted, for free. So long as you comply with Etsy’s Terms of Use, Dos and Don’ts and other site policies, this process will be easy to walk right through. Etsy's community and marketplace benefits from your creative uses of Etsy’s trademarks, and we're not trying to put a damper on your creativity or your expression! Keep in mind, however, Etsy will not grant permission to use the Etsy name in a drop shipped and mass-produced product.

This program will take time to implement, as each request will be reviewed individually and each approved member will be asked to follow some instructions and sign an agreement. We expect a bunch of requests all at once, so please be patient. After the program goes into effect all uses of the trademark similar to that belonging to Etsy, must be pre-approved.

Through the trademark permissions program, both Etsy’s trademarks and your use of Etsy’s trademarks will be protected. Thank you for your creativity, thank you for your patience, and thank you for your personal connection to the Etsy!

Do you want to apply to use the Etsy trademarks in a product?
For example, do you want official permission to silkscreen the Etsy logo on a handmade bag or paint the word “Etsy” on a mug? Please email the following information to trademark@etsy.com:

Your contact information: Etsy shop, full name, email address, address, phone number.
What trademark you want to use? (Do you want to use the Etsy name, the rectangle logo, another Etsy trademark? Lets us know.)
Information about the items: What will you make? How will the items be made? How will you use the Etsy trademark?
Information about the quantity: How many of the items will you make each year? (This can be an estimate).
Information about selling the items: Where will the items be sold?
Image of the product.
Any other relevant information.

For permission to use the Etsy trademark in a product, please email trademark@etsy.com with all of the above information. Please make sure you include all requested information. Any incomplete applications will be returned. If you want to use an Etsy trademark in any way other way (for example, in a domain name), email trademark@etsy.com with as much information as possible, including description of use and the domain name. We will review the request and get back to you.

Please check out the FAQs for more information.
Thanks!
Sarah

Etsy Trademark Program FAQ

Q. I am already selling an item with the Etsy logo or just the Etsy name on it, what should I do?
Don't panic. Email the information to trademark@etsy.com for official permission to use the Etsy Mark. For products listed on Etsy, unless the product violates an Etsy policy, Etsy will not start removing items for using Etsy marks until we all feel we’ve reviewed the first wave of requests.

Q. Do I still need permission if I change the Etsy logo?
Yes. You will still need permission. In fact, changing the logo could cause confusion.

Q. What types of products will be accepted?
Handmade goods that comply with Etsy’s policies will be accepted. Dropped shipped or mass-produced goods that do not comply with Etsy’s policies will not be accepted.

Q. How long will it take to hear back about my application?
Initially, we anticipate a large number of applications, so please be patient. In the meantime, you can continue selling your Etsy logo products until reviewed.

Q. What happens if my application is accepted?
You will be asked to sign a contract. The contract will let you know that we have an agreement in how to use the trademarks, limits on using the marks, language to use in your item posting, and other legal information. This contract will help Etsy keep track of your use. You will also get an official TAG for your products to use on Etsy. The email that accompanies the contract will explain, in plain English, what you are asked to agree to.

Q. When do I need request permission by?
Please request permission as soon as possible. For products listed on Etsy, unless the product violates an Etsy policy, Etsy will not start approaching members using our marks on the site until April 1, 2008. For all other uses, Etsy reserves its trademark rights to the fullest and may ask you to comply with certain terms at any time.

Q. I want permission to use the Etsy trademark in a domain name / event / promotion / other use. What should I do?
Email trademark@etsy.com with as much information regarding your plan, including description of use and the domain name or name of the event.

Q. I have a blog that includes the word “Etsy” in the url. What if you do not grant me permission?
Please email trademark@etsy.com with as much information about your blog as possible, including focus or type of content written on the blog and domain name.

Q. My domain name does not use the word Etsy, but I mention Etsy in my site. What should I do?
So long as it does not seem as if you are pretending to be an Etsy employee or other similar situation, you may use the word Etsy to describe where you buy and sell all things handmade. For example you can say "I found this awesome shirt on Etsy," or "visit my Etsy shop." Also, you may have a section of your blog, for example, "Daily Etsy picks." You do not need to fill out a form for these types of uses. When in doubt, email trademark@etsy.com and we’ll be happy to talk you through it.

Q. What about promotional materials such as business cards, flyers, etc.?
If your business card simply contains the name of your Etsy shop or your shop’s URL (for example, www.yourname.etsy.com), there is no need to fill out a form for permission. If you are using Etsy's trademarks in any other way, please email trademark@etsy.com with as much information as possible about your use of the trademarks.

Q. I am putting on a craft fair in my town with other Etsy sellers, do I need permission?
If you are using the Etsy trademark in your promotional materials (other than URL of your Etsy shop) or if you are using the name “Etsy” in the name of the craft fair (for example, the "Etsy Small Town Amazing Craft Fair") then yes, you need permission. If the name of the fair does not contain the Etsy mark (for example, the "Buy Cool Stuff Craft Fair") then you do not need permission.

Q. What about Etsy Teams?
There is no need to email us right now. We’re still working on this and we will be in touch. We anticipate few changes, so not to worry. We love our Etsy Teams and will work with you about using Etsy marks at a later time.

Q. I thought I could use the Etsy trademark in anyway I wanted. Why are you doing this?
Although Etsy has not publicly policed its trademarks in the past, if we do not do this now, Etsy could lose its trademark rights. That means, if we let our members use our trademarks without case-by-case permission, we will have no recourse if a no-good, environmentally unsound manufacturer produces an inhumane product under the Etsy brand! This will harm our brand, our site, and our community. We don’t want to risk this.

Who do I contact if I have a question about this program?
Email trademark@etsy.com.

These FAQs may be periodically updated. Questions about trademarks and the content of this article? See the associated forum thread. If you have a specific concern about your item, you may want to talk to Sarah about that privately. Email her through trademark@etsy.com.

Selling Your Edibles on Etsy

Tue, 18 Mar 2008 16:40:00 -0000

The term “handmade” encompasses a wide range of items on Etsy...and some categories of handmade items have specific business and legal concerns. Fortunately, Etsy has an amazing community to serve as a resource. Tiffany and Chris of Organidog are here to share some important information about selling edibles online in the following article. This is important information for those Etsy sellers who make and sell handmade food.

Hi! Our names are Tiffany and Chris, aka Organidog here at Etsy. As a former pastry chef and culinary instructor, as well as purveyors of organic dog treats, we have spent many an hour in the realm of all things eaten. Between designing wedding cakes and teaching culinary classes, we have become seasoned in the “Dos & Don’ts” of selling food for profit.

In the last fifty years, the once innocent concept of selling brownies or jellies has evolved into a legal obstacle course. For those of you taking the plunge into a delicious business adventure, we will address some of the most frequently asked questions.

Do I need a license to sell edibles on Etsy?
According to Etsy's Terms of Use, it is up to each seller on Etsy to abide by the appropriate laws, statutes, and regulations relating to your business and selling your products. However, many laws vary from country to country and from state to state. For example, many states require that all items intended for human consumption are stored, prepared, labeled, and packaged in a licensed kitchen. Other states require notifying the local health department and filing the respective paperwork for a food permit. Alternatively, a seller may have to secure a licensed kitchen with yearly inspections and a state approved food handlers. The state may even limit what you can legally produce for sale on and off the Internet. Your first step is to contact your local health department or department of agriculture depending on where you reside.

What if my local health department says I have to prepare everything in a licensed facility?
Obtaining a licensed kitchen may be easier than you may think. There are many companies who specialize in commercial kitchen rentals or shared/ co-op kitchen rentals. These are usually the easiest and most costly options available. For those on a budget, churches, day care centers, even your local VFW, may offer kitchen rentals. It is important, however, to make sure that the prospective facility has the appropriate licensure. Some facilities that are licensed to serve their own members are limited to what may be prepared on site, or do not permit the sale of edibles in excess of a specific dollar amount per year.

I also strongly suggest taking a tour of the facilities before signing a contract, however formal or informal the arrangement may be. From our experience, a few licensed kitchens have been a breeding ground for insects. You certainly don't want to worry about shooing away roaches while whipping up a batch of Grandma Lu's prize winning marmalade. Once you have located a potential space, you'll need to ask some important questions.

What questions should I ask about the licensed facility?
Can I rent by the hour, day, or month?
Will I have any storage space including refrigeration space?
Can I use the kitchen’s address as my actual business address?
What if I need more or less than my scheduled time?
Can I get deliveries and/or pick ups?
Will anyone else have access to the same kitchen when I am in it?
Am I obligated to clean up after myself?
Do I need a food handler’s permit?

You may also want to ask if you are covered by the licensed facility’s insurance policy. Although most facilities for rent are insured, many renters are not covered by their own coverage. If you are a homeowner, your homeowners insurance may offer the option of placing a rider on your policy to cover your business. I purchased one a few years ago to the tune of a couple of hundred dollars and it was money well spent. Renters, don't fret; similar coverage may be available with renters insurance.

Do I need to label my goods? If so, what needs to be on the label?
The Food and Drug Administration (FDA) has clear cut guidelines on labeling your items. The Fair Packaging and Labeling Act provides a detailed account of what is required to include on a label. Additionally, the FDA has a helpful illustrated Q&A guide regarding the requirements when listing your ingredients. Again, the kind folks at your local health department will be able to guide you through the specifics.

Is there anything special I need to do with my listings on Etsy?
When selling online, make sure your potential consumer knows what is in your product. Your Etsy item descriptions should contain the same list of ingredients found on your label. I also find it helpful to inform customers with allergies and/or food sensitivities of common products that I use that may be of concern to them, ie; wheat, dairy, nuts. Better to lose a sale than to gain a lawsuit!

One final and equally important topic is for the pet lovers who have an itch to sell pet treats. Pet treat bakers are required to comply with their appropriate laws for the manufacturing of pet food. Some states regulate this through their health department, others through the department of agriculture. Many require a feed license as well. But one thing that they all require by federal law is a “guaranteed analysis.” The Association of American Feed Control Officials (AAFCO) has cracked down on this in recent years due to mass pet food recalls. A “guaranteed analysis” is simply the minimum percentage of what various ingredients are contained in those treats and is performed by a chemist and who may be appointed by your state or privately contracted. AAFCO has a plethora of information regarding what is required regarding what is permissible for sale in the United States.

Further Resources:

www.fda.gov/opacom/laws/fplact.html
www.cfsan.fda.gov/~dms/lab-ind.html
www.fda.gov/default.htm
www.nrfsp.com
www.packaginglaw.com
www.aafco.org

Legal Info for Artists: Dog Eat Dog Legal System

Tue, 04 Mar 2008 23:48:00 -0000

There are so many cases of the big dog scaring the little dog that it’s refreshing to find an educational and entertaining tale where the bigger dog’s bark is worse than its bite. Disclaimer: upon reading this case, I couldn’t help the dog puns. So throw me a bone!

Haute Diggity Dog is a puppy-sized business in a big dog world that sells a line of pet products whose names parody high-end brands of products such as perfume (Chewnel No. 5), cars (Furcedes), shoes (Jimmy Chew), and wine (Dog Perignonn). Haute Diggity Dog’s “Chewy Vuiton” chew toys resemble miniature Louis Vuitton handbags and are a similar shape, design and color.

Louis Vuitton Malletier S.A., the pedigreed designer of luxury handbags, growled at the “Chewy Vuiton” squeaky toys and wanted to send Haute Diggity Dog to the doghouse. Louis Vuitton filed a law suit alleging, among other things, copyright and trademark infringement.

Well, Haute Diggity Dog did not run away from this law suit with its tail between its legs. In a dogfight appellate case decided in November 2007, the U.S. Court of Appeal for the 4th Circuit found that the chew things were protected parodies because the toys conjure up the famous Louis Vuitton marks but at the same time communicate that they are not Louis Vuitton products. The court determined that the parody was “sufficiently blatant and that a consumer encountering a ‘Chewy Vuiton’ dog toy would not mistake its source or sponsorship on the basis of mark similarity.” The court held that Haute Diggity Dog’s products were unlikely to cause confusion with those of Louis Vuitton and therefore there was no infringement.

It can be intimidating to receive a legal notice concerning an allegation of infringement. And even a win in court may result in legal fees. It’s up to you to decide what is best for your business and it’s ultimately up to the court, and not the big dog, to determine who is right.

Safety First: California's Lead in Jewelry Law

Tue, 12 Feb 2008 17:00:00 -0000

Safety issues, laws, and consumer protection: these are serious matters, and Etsy, as a venue, advocates that all Etsy sellers go above and beyond to make sure that their items are safe for buyers. We can help here at the Storque by shedding some light on these issues, because awareness will benefit both buyers and sellers and the marketplace as a whole. Lead in jewelry is one such safety issue, and below SarahSays outlines how this might affect your businesses.

SarahSays, Etsy's in-house attorney, writes a series for the Storque called Legal Info for Artists. You can find all her pieces by clicking the featured column to the left.

Laws, laws, laws. There are so many laws! And every day we are all affected by these laws. Thank goodness most laws exist for good reasons. The intent of many laws is to promote the health and safety of society or to help society function more smoothly.

When you sell things on Etsy or on other online marketplaces, you need to make sure you comply with a number of laws. And I’m not just talking about the Etsy policies (like Etsy’s Terms of Use); I’m also talking about state or country government laws. For example, each Etsy seller must comply with the laws of their local area in addition to the laws regarding the actual items made. It can be overwhelming, to say the least, to keep up to date with these laws. And an even more overwhelming thought: laws tend to change.

In my Storque column, I will feature laws that are relevant to the Etsy community. For this article I will examine California’s Lead-Containing Jewelry Law. In order to help protect children from exposure to lead, which can cause many health issues including behavioral problems, learning disabilities, organ failure and even death, California enacted the Lead-Containing Jewelry Law. This law intends to limit the amount of lead in jewelry, including children’s jewelry and body piercing jewelry. The law is effective for children’s jewelry as of September 1, 2007 and for all other jewelry March 1, 2008.

Basically, this law says a person must not manufacture, ship, sell, or offer jewelry for retail sale in California unless it is made entirely from one or more of the materials specified in the law (“jewelry” includes earrings, pins, rings, chains, beads, and pendants). It provides a laundry list of materials that are fine for jewelry. The law states that children's jewelry, for example, must be made out of nonmetallic "class 1" or "class 2" material and matallic material must contain <0.06% (600 ppm) lead by weight. Adult jewelry must be made of "class 1" materials like stainless or surgical steel, gold, sterling silver, platinum, natural or cultured pearls, glass, ceramic, bone, coral, feathers, fur, horn leather, shell, wood, ribbon, rope, string or gemstones. Adult jewelry may also contain "class 2" material like electroplated metal. If the adult jewelry is not made from accepted material, it cannot contain over .06% (600 ppm) lead by weight. For a full list of material allowed for jewelry, check out the links below.

So, what if you have an antique treasure and you’re not sure what material it’s made out of or if it contains lead? According to the Lead-Containing Jewelry law, you should use EPA Test Method 3050B or 3051 to test for lead. Check out the California Department of Public Health's list of accredited laboratories. I contacted California's Department of Toxic Substances Control for information about testing kits, but as of yet, I have not heard back from them. I will post a comment below when if I receive additional information.

Who is affected by this law? This law applies to people who manufacture, ship, sell, or offer jewelry for retail sale in California. That means, if you offer your jewelry to Californians, this law affects you.

For additional information, please visit the California Department of Substances Council website, or check out this Fact Sheet or these FAQs. According to the fact sheet, contact Ann Hanger or Nancy Ostrom with any questions.

When Etsy, as a venue, receives a notice from a governmental entity, we will act on it. And while we know you mean well by keeping the "neighborhood watch" for the Etsy community, please don't call other sellers out if you suspect lead is in their items. It's not a good idea to jump to conclusions concerning another seller and violations of this or any other law! If you have serious concerns about another seller's work or your own, please convo me at SarahSays.etsy.com.

If you know of an important law regarding your craft and you think I should mention it in an upcoming Storque article, please comment below or convo me!

All about Etsy FAQ Series: Legal Info

Tue, 22 Jan 2008 21:38:00 -0000

In this installment of the All About Etsy FAQ series, SarahSays will explain Etsy's stance on our involvement in the legal issues of Etsy users, as well as the answers to the most pressing FAQs. Sarah is Etsy’s in house lawyer, as well as a jeweler. She writes a Storque column which addresses legal issues for artists.

Before I worked at Etsy, I was an attorney in a regular law firm. I had some extremely talented and creative clients. In general, my clients would only contact me with problems. They would never email me or call me or even stop by to shoot the breeze when things were going well (maybe it was because the law firm charged the client for my time). No, when you really need to talk to your lawyer, there's usually an issue.

Now that I am here at Etsy, Etsy is my one and only client. Although I wish I could provide everyone on Etsy with the advice and guidance they may desire, legally, I cannot. This is more than just a legal issue: it’s a practical one. Only an attorney who spends time with a client, and time doing appropriate research, can determine whether which detail is important to a given issue. And practically, there are just too many Etsians, and too few hours in a day.

Even so, I am often contacted by Etsians with questions. Although I cannot provide legal advice, I can provide general legal information, and hopefully this information is helpful. In fact, I write Storque articles to help our community. Here is a list of the most frequently asked questions that I receive.

1)    What do I do? I got a Cease and Desist letter.
First and foremost, breathe. Then sit down and carefully read the letter. You may want to contact the other party to discuss the situation. You never know: the issue might be a simple misunderstanding. You may also want to talk to an attorney. If the letter has to do with the name of your shop or an item in your shop, you may choose to contact Etsy.

2)    What do I do? Someone is copying me on Etsy.
First, please examine the situation. Think about what aspect of your work may have been copied. Remember that, in general, ideas are free for everyone. Please do not discuss this situation on Etsy (in the forums, the Storque or in any other public forum) in a way where someone else can figure out who (or what) you are talking about. That is “calling out.” You may choose to respectfully contact the other person to discuss the situation. Also, you may choose to notify Etsy (as outlined in Etsy’s Copyright and Intellectual Property Policy). For more information, please check out this Storque article.

3)    Can I use ____ in my art?
Many artists wonder if it is legal to use found materials to create art. For example, a collage artist may want to use magazine pictures or images from a website, a bag maker may question using licensed fabrics, or a graphic designer may wonder about the legalities of utilizing a famous photograph. Unfortunately, there is no general answer to the general question of creating art using the work of others. And, in fact, even judges and attorneys may disagree regarding a specific situation. Usually an answer requires research, depending on the specific circumstances. So if you have a specific question, you may choose to ask the owner of the image (or the intellectual property) for permission to use the work. You never know: that person or company might be thrilled about the free publicity. You may also want to talk to an attorney.

4)    What if someone says I am infringing on their trademark?
The logo on your can of soda, the brand symbol on your t-shirt, and your car’s hood ornament are all examples of trademarks. The name of your Etsy store may also constitute a trademark. A trademark includes any word, name, or symbol use to distinguish a product. United States trademark law exists, in part, to protect consumers from getting confused from the source of a product. But what if someone argues that your Etsy store is using a trademark unlawfully? First, calmly think about the situation. You may want to discuss the issue with the other person or with an attorney. If necessary, please email abuse@etsy.com.

5)    Someone said I copied them!
If you suspect a forum post is “calling out,” please email community@etsy.com. You may choose to discuss this issue with the other person. It may be a simple misunderstanding. You may also consider speaking with an attorney. If the problem has to do with your Etsy shop, you may email abuse@etsy.com.

6)    How do I know if I’m following the correct laws for my Etsy business?
It’s up to each seller on Etsy to abide by the appropriate laws, statutes and regulations relating to your business and selling your products. In fact, by signing up for Etsy, you agree to follow such laws. Please research and keep up to date on these matters as laws may change. For questions, please consult an expert.

SarahSays: Trademarks

Tue, 15 Jan 2008 18:17:00 -0000

So you’re sitting in a cafe and you're online with your laptop —you know, the one with the cute little fruit logo. You're buying handmade items from that web site with the orange and white brick rectangular symbol on every page. You suddenly get a craving for a hamburger from the golden arches and a soda with the red and white wave writing on the can.

Based on these quick descriptions, can you guess the name of the web site? What brand of computer do you own? Where do you want to buy your burger and what is the name of the beverage you crave?

Sure! The Etsy logo, Macintosh’s apple, McDonalds’s arches, and CocaCola’s red “spencerian” script are all easily identified with just vague descriptions. That's because they are all trademarks — or brand names. And they are meant to instantaneously communicate to you, dear potential customer, which company made that product.

Trademarks actually have their roots in the arts, which Etsians might find interesting. Ancient Greek and Roman potters marked their wares with symbols to show quality and ownership, and medieval paper makers watermarked their papers. These markings represent the history of what would become trademarks.

[Old World Map Serving Tray by wildwood]

Today, trademarks serve a similar purpose to their ancient predecessors. They convey to the buyer the maker of the product and symbolize the quality for which that maker is known. So, trademarks and reputation go hand in hand. For example, if I discover the Etsy logo on a product in a craft store, I will associate that symbol with what I already know about Etsy, the company, the culture, and the community (hopefully good things!). Since I am familiar with Etsy, I might decide that I don't need to research this trademark brandishing item. By looking at the logo, I know the brand. My opinion of Etsy will help me decide whether to buy the product.

But, what are trademarks and why are they so important?

According to the United States Patent and Trademark Office, “a trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.”

The customer is not the only one who benefits from trademarks. Trademarks also help assure that the company (and not an imitating competitor) reaps the financial and reputation-based rewards associated with their brand. Therefore a company like Etsy is encouraged to continue to act responsibly and produce excellent products and stear clear of "things that will harm the brand." Etsy is then rewarded by this with loyal customers and good publicity. Also, Etsy can put an end to imitating competitors who might damage the Etsy name. So at the end of the day, our legal system and society developed trademarks to serve both buyers and sellers.

U.S. trademark law protects consumers from being confused about where a product comes from and from frauds. The law rewards companies for maintaining their product's quality by protecting that brand from imitators.

Check back for more SarahSays articles about Trademarks! Comment below! We'd love to hear your thoughts on Trademarks: which trademarks you think work well and why...

Etsy’s Copyright Policy

Tue, 18 Dec 2007 12:44:00 -0000

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 email flagged@etsy.com.

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.

The Ins and Outs of Consignment

Tue, 11 Dec 2007 17:47:00 -0000

Success!

After gathering up every ounce of confidence, and samples of your work, you finally get a gallery or shop owner to sit down with you. And she wants to sell your work! Suddenly visions of fame, fortune and crafting dance around your head. And then the owner suggests a consignment.

But what exactly does consignment mean and how do you know if it's a good deal for you? Wholesale means the artist sells the product directly to the retailer at a bulk rate. With a typical consignment, the artist supplies the store with products for free. When an item sells, the artist will receive the proceeds of the sale minus a commission. The commission is usually around 40 to 60 percent of the sale price (whether wholesaling or consigning, please price your work accordingly (see this article on wholesaling from Beth's Art of Pricing series). That means the artist will not get paid until the work sells. If the work does not sell, the retailer may return the work to the artist.

A consignment deal may benefit an artist. A consignment might make it easier to get items in many outlets. Also, consignments can be ideal for new or risky work, and an artist might be able to pull back items or switch a line during the run. But there are some tricks to the trade that you should watch out for.

Before you agree to sell on consignment, consider the following:

Do research and use common sense. Unfortunately, retailers come and go. You don’t want a retailer to come and go with your art, without paying you. Before you place your work in a retail establishment, you might want to ask for references or lists of other artists exhibiting there. Ask the references about their experiences. When in doubt, avoid large orders until you have built a level of trust.
Get all the retailer’s details. You might want to ask for tax IDs, full names, addresses, email addresses and phone numbers. Ask for financial or credit information. That way you will be prepared to contact the retailer if necessary.
Get all the details of the agreement. You will benefit from a written consignment agreement. The agreement should cover (for example): the full inventory, the retail prices, the length of time of the consignment, payment information, the store’s responsibility for damage or theft, the store’s fees, return policies, display policies, shipping responsibilities, promotional responsibilities, insurance, legal fees, termination, discounting, and any obligations to post a sign regarding the consignment. Both parties should sign this agreement. You may want to use your own consignment agreement. If the retailer supplies you with a consignment agreement, make sure you agree to each clause before you sign it. Do not be afraid to negotiate!
Stay in contact with the retailer. Regular communication may alert you to any problems with the retailer and it can also help you prepare for success. For example, if you know the retailer is running low on your most popular item, you will be prepared for a re-order.
Know when to quit. It’s up to you to decide if a relationship is not working out. If you experience late payments or suspect financial problems, you may want to take your work back and move your talents elsewhere.

There are few guarantees in business. Some artists have had amazing successes by selling on consignment and some have had unfortunate experiences. If you receive a convo regarding a consignment that seems suspicious, please email abuse@etsy.com.

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.

SarahSays Copyrights: Register for U.S. Copyright Online

Tue, 20 Nov 2007 16:16:00 -0000

As Etsy's in house attorney and as a jeweler, I was so exited to hear this news I'd been waiting for for a long time. The United States Copyright Office announced that it is conducting a beta test of its web-based registration system. The public can request to participate in this test. Beta testing covers basic registration for visual arts works which includes, for example: commercial prints, collages, dolls, toys, fabric, games, greeting cards, jewelry designs, mosaics, photographs, and sculptures.

According to the U.S. Copyright Office, applicants will be selected in the order that requests are received and based on the type of work, the type of samples of the work submitted, the frequency of registration, whether the work is published, whether an individual or a company is submitting the work and based on the type of payment. Participants will file basic copyright registration claims online at a reduced fee ($35 instead of $45). If you want to be considered for beta testing, you will need to complete a short release form.

I see this move as a long time coming. And I am very excited to see what happens after the beta testing is complete. I know the Etsy community will benefit from the convenience of online filing and the lower fee.

Further Resources
The US Copyright Office beta testing announcement.
For more information about U.S. Copyright visit www.copyright.gov.

If you are selected to participate in the beta testing, please let me know how it goes in the comments below!

Pull My Finger Fred

Tue, 16 Oct 2007 15:45:00 -0000

Sometimes a court case comes along that really affects my life. And sometimes a court case just makes me laugh and want to share it with the world. JCW Investments, Inc. v. Novelty, Inc., 2007 WL 817673 (7th Cir., March 20, 2007) is entertaining but also illustrates an important copyright question: where is the line between an idea and expression?

“Pull My Finger Fred” is a doll manufactured by Tekky Toys. Fred is characterized as “a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a tank top and blue pants” who makes farting sounds and tells jokes when his finger is squeezed. In 2001 another company, Novelty, introduced a similar doll, “Fartman.” Fred and Fartman both feature crooked smiles, balding heads with black hair, large protruding noses, blue pants and white tank tops. Two of Fartman’s seven jokes are the same as Fred’s. In 2002, Fred’s manufacturer filed a U.S. copyright infringement action against Novelty and the court determined that Novelty had infringed upon their copyright. Novelty appealed.

According to the court, the idea of a farting doll is not protected. However, Novelty took more than the idea; Novelty took the expression. According to the court, “Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an armchair, and be wearing shorts rather than blue pants.”

Artists should remember that ideas are generally free for all, while expression may be protected with U.S. Copyright. Use your best judgment when creating art inspired by an existing work. Also, be careful about alleging copying when a work utilizes a similar idea. If Fartman had a blond mullet and wore flannel, the case might have been decided differently. Unfortunately, the line between an idea and expression is difficult to locate and thus must be decided on a case-by-case basis.

Sarahsays Copyrights: Creative Commons Licensing

Tue, 09 Oct 2007 09:04:00 -0000

You're walking through an art museum and see an amazing work of art. It's inspiring. Maybe you feel compelled to knit a sweater with its crazy color combo. Or maybe you just want to keep a personal scrapbook of your tour through the museum. Or maybe the fluid lines of the artwork hit you with the creative impulse: you have the urge to translate its forms into a unique piece of jewelry to sell in your Etsy shop. You whip out your camera to take a photo of it and Hey!!! a museum guard rushes up to prevent you from taking the photo. Why? Because the artwork is under copyright.

It's a puzzling moment many of us have experienced. Perhaps you weren't intending to make money off your image of the artwork. Perhaps you were only intending to "remix" its features into a new work. At moments like these, many of us heave a sigh and balk at the litigious constraints in which our society has cloaked creativity.

But then again, many of us have been on the other side of such situations. Perhaps you've found that others are making exact replicas of your truly unique work and selling it for profit, without giving you any credit or attribution.

Is there any in-between? There are new alternatives: artists and craftspeople now have options to share some of their ideas if they choose to do so. This is somewhere in between folk art — where artistic expression moved freely through cultures, the predecessor of public domain — vs. complete individual control — where the artist or copyright holder can prevent any sort of copying. Below, SarahSays gives us a breakdown of Creative Commons Licensing, a set of licenses developed for those instances in-between.

This is incredibly important information, and very relevant in the digital age. Replication of artwork is quick and easy, but so too is viral marketing. As artists and web entrepreneurs, we find ourselves tailoring copyrights to our individual needs more and more. The open source movement has been promoting the idea of sharing information and computer code for the greater good and betterment of society for some time now (some say since engineers first invented the internet, though 1998 is the date for when the term was coined. See Wikipedia's entry on open source). The key concept here is that new works (and therefore the stuff that makes up our culture) build upon the works of the past, as Lawrence Lessig puts it. Creative Commons, a non-profit organization founded in 2001, brings more choice to the issue of copyright for artwork. Please read on for Sarah's article.

— Vanessa

Generally and according to U.S. copyright law, when an artist creates a piece of art, the artist can prohibit others from reproducing, adapting, or distributing copies of the work. Some people argue that "All Rights Reserved" — the default copyright — is too broad and lasts too long, and as a result, U.S. copyright law stifles creativity. In order to allow others to use the work and to encourage further artistic expression, an artist may choose to loosen some rights under copyright law.

Creative Commons is a non-profit organization dedicated to providing an easy way to share information. An artist can choose which rights to retain and which rights to license to others. The aim of Creative Commons is to increase the sum of raw source material online and also to make access to that material cheaper and easier. According to the group “a single goal unites Creative Commons’ current and future projects: to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.”

The copyright owner may use Creative Commons licenses to grant some or all of their rights to the public while still retaining other rights. The Storque is written with Creative Commons licenses.

There are many benefits from Creative Commons licenses. A photographer can choose to post a photo on the web and still express a preference of how the work is used: the photographer doesn't mind if people repost his image on their blogs, but they must credit him, for instance. A musician may legally sample and be sampled, without the hassle of clearing copyright and obtaining permission. New artists may benefit from increased exposure.

The following is a list of the Creative Commons licenses along with the icons:

Attribution: You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give you credit.

Noncommercial: You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only.

No Derivative Works: You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike: You allow others to distribute derivative works only under a license identical to the license that governs your work.

Public Domain (No Copyright Attached): The work is available for use in any way by anyone.

The following is a list of combinations of Creative Commons licenses:

If you select “Attribution Non-commercial, No Derivative” you are granting others permission to copy your work and share it, but the person must give you credit and link back to the work, the person cannot change the work, and the person cannot make any money off of your work. This is the most restrictive Creative Commons License.

If you select “Attribution Non-commercial Share Alike” you are granting others the right to copy or share your work, change or build upon your work, but the person cannot make any money off of your work and the person must give you credit and link back to your work. All new work based on your work will carry the same license, so any derivatives will also be non-commercial in nature.

If you select “Attribution Non-commercial” you are granting others the right change or build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

If you select “Attribution No Derivatives” you are granting others the right to redistribute the work, the person must give you credit, the person can make money off of your work, but the person cannot change the work.

If you select “Attribution Share Alike” you are granting others the right to remix, tweak, and build upon your work, even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. New works will also allow commercial use.

If you select “Attribution” you are letting others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of the Creative Commons licenses offered.

Further Resources:

For more information on Creative Commons and to learn how to select a license visit www.creativecommons.org.

For more information on U.S. Copyright Law visit www.copyright.gov.

Lawrence Lessig's Free Culture book.

Students for Free Culture.

Electronic Frontier Foundation.

SarahSays' column is not legal advice, but shared legal information. If you're in a situation where you need to take the issues addressed here further, please talk to your lawyer!

Using Fabric in your Creations: Not All Fabric is Created Equal

Tue, 25 Sep 2007 07:06:00 -0000

SarahSays will be writing a series on Using Fabric in Your Creations.

I have seen a lot of forum debate on the use of fabric in creations. I hope to shed a little light on this complicated topic.

*Not all Fabric is Created Equal:*
When discussing United States copyright and fabric, usually someone brings up the fact that if fabric is covered by copyright, then every piece of fabric clothing, and every fabric pillow, bag, and headband violates copyright. This argument is simply not true.

According to U.S. Copyright Law, in order for a fabric pattern to qualify for copyright protection it must “rise to the level of artistic design.” For example, a drawing or photograph printed on cloth would likely meet this test but a simple white sheet is probably not eligible for copyright protection.

However, where is the line? When is a piece of fabric just barely eligible for copyright protection and when does it fall short? There is little case law on this subject and both legal scholars and judges may disagree. Ultimately, this becomes a question for the court to decide.

In conclusion, not all fabric is created equal. Before you use of the fabric you must examine the fabric itself because not every fabric pattern is entitled to copyright protection.

I will examine other issues associated with using fabric and creating art in subsequent Storque articles. Please stay tuned. For more information on U.S. Copyright Law visit www.copyright.gov.

Poor Man's Copyright

Tue, 18 Sep 2007 16:09:00 -0000

When discussing United State's copyright law it never fails that someone will bring up the poor man’s copyright as an alternative to U.S. copyright registration. For those of you who are unfamiliar with the poor man’s copyright, this is the practice of mailing a copy of your work to yourself and not opening the envelope when received.

Surely the cost of the stamp is a lot less than actual copyright registration. Not to mention there are no forms to fill out. The myth: someone alleges that you infringed and in a dramatic courtroom moment you whip out the unopened envelope, point at the time stamp and upon opening the envelope, to the horror of the opposing party, you will prove that you did not infringe. Case closed. You win. And the crowd goes wild.

The poor man’s copyright is not an alternative to U.S. copyright registration. First, there are many benefits to U.S. copyright registration and the poor man’s copyright does not bring with it these benefits. U.S. Copyright registration is currently only $45 (fees subject to change), you will probably be able to register a GROUP of work at the same time, the form is easy to fill out, and you don’t need any lawyers.

Second, copyright protection attaches as soon as the work is created. Generally in the U.S. you do not need copyright registration in order to have copyright protection. However, registration has major benefits. For example, if you have registered within five years of publishing your work, then the courts will find this as excellent proof of a valid copyright. Also, to bring a case to court, you need U.S. copyright registration first (and a poor man's copyright does not count as registration).

Third, I have never heard of a poor man's copyright success story. If you know of one, please let me know. Plus, the poor man’s copyright could be easy to fake.

The poor man's copyright is simply not an alternative to U.S. copyright registration. This is your business, take it seriously. And really, $45 (fees may change) is pretty cheap for insurance. Go to http://www.copyright.gov/, fill out the appropriate form for your work, send it in, and do things right. The copyright website also has lots of FAQs and you can call the office with questions. You worked hard to create your works, take the same time and effort to protect them. It’s not that hard. You can do it!

About Us: SarahSays, Etsy's Legal Counsel

Mon, 03 Sep 2007 23:00:00 -0000

As a child I was always creating things. My supportive parents signed me up for classes at our local art gallery. I remember having visions of glue and glitter in my head as I walked with my mother to the art classroom. Out of the corner of my eye I saw the metalsmithing studio. I caught a glimpse of the torch, the anvils, the saws, and the metal. I knew I had to join this class.

The gallery’s rule was that a student must be at least twelve years old to take a metalsmithing class. And so I waited. I completed classes in ceramics, painting, and drawing, but on breaks, after a visit to the vending machine, I would find myself wondering over to the jewelry studio window wishing that I were older. The moment I turned twelve, I was signed up for my first metals class.

Although I loved jewelry making from the very beginning, I knew that this was not my career path. My passion for art led a curiosity of the legalities of creating art and, to be honest, a slight paranoia concerning my own intellectual property rights. I was intrigued by all things which combined law, art, and helping artistic and entrepreneurial people. To address these interests I decided I would become an attorney. However, my art was too important to me to lay dormant while I completed my legal education. I chose Skidmore College for my undergraduate degree because I could take metalsmithing classes without majoring in studio arts. I chose Syracuse University College of Law for a similar reason.

I believe life presents two types of opportunities: opportunities that are earned, and opportunities that are created. My final year of law school I created an opportunity to combine my passion for art and my passion for law. I wrote a book on intellectual property rights of jewelers as an independent study with my favorite professor. I submitted the book to two publishers; one publisher actually loved my concept.

After I graduated law school and my brain thawed from the dreaded Bar Examination, I entered into negotiations with the publisher. In my eyes, the publisher wanted too much control over my book. And then I had an epiphany: I did not need a publisher to publish a book and help artists.

The book I wrote in law school has transformed into my current book “Copyright for Artists.” This book contains information on U.S. intellectual property protection options and step-by-step U.S. copyright registration instructions. The book is specifically tailored to visual artists—written in plain English—and it contains many examples, frequently asked questions, charts, and links to forms. Much of the book is influenced by Etsy forum threads. I will sell my book in PDF form on Etsy as soon as it is complete.

I also write articles and speak on the topic of intellectual property rights of artists. My most recent article is in August’s Bead&Button Magazine. Click here to read the article.

The purpose of my Storque column is to address intellectual property issues. If there is a topic you want me to address, submit the idea through the Storque. Please understand that I cannot provide legal advice concerning a specific situation. If you need specific advice, consult a licensed attorney in your area. However, I can provide general legal information concerning an issues.

I’m very excited to have this opportunity to combine my passions for law and art and to help the amazing artistic and entrepreneurial community of Etsy.