Seller Handbook

Advice and inspiration for successfully running your Etsy shop

4 Legal Terms You Should Know

Etsy's in-house attorney breaks down confusing legal language, including patents, trademarks and copyrights.

By Sarah Feingold Jun 10, 2008
Photo by SWEETandEDIBLE

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.

Here 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 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 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.

Learn more about trademarks here.

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.

Author

Sarah Feingold

Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.

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