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The Bernie Meme & Etsy Copyright Infringement

Etsy copyright infringement is a finicky thing.

Copyright laws themselves are confusing at best, but Etsy’s take on what plagiarism is and isn’t only makes the area murkier. To make matters worse, copyright laws vary from state to state and country to country.

Bernie Sanders’ recent attendance at the presidential inauguration took over the country by storm with a huge wealth of memes, and many Etsy sellers are cashing in on that. Although what seems like such a small fad of an idea can actually create a niche culture that really sells (as proven by the Sold Out product line and 4-8 week backorder at the time of writing this article). While it may seem like a great business strategy, by jumping on fads like the Bernie meme to sell merchandise with his likeness, you’re really playing with fire when it comes to copyright laws.

Because ultimately, that photo is the property of the photographer.

Crediting the owner of the photo when you use it is one thing – making money off a trend that’s been created as a result of the image, well, that’s a gray area at best. And of the list of things on Etsy you should never do, infringing on the copyright of others is right up there at the top.

Yup, that’s our very own Jade from Marmalead! And yes, she already owned the gloves… 🤣

In this article, we’ll take a look at Etsy copyright infringement, how to avoid it and what to do if you spot it.

DISCLAIMER: None of us at Marmalead are trained, legal professionals. What you’re about to read is for your entertainment only.

Bernie and Etsy Copyright Infringement

Yup, you read it right, that photo of Bernie sitting in his foldable chair, has an owner:

Brendan Smialowski, a photojournalist for Agence France-Presse (“AFP”).

To legally use the photo in anything, you have to license it from Getty Images. Then, according to a contract between yourself and Getty, you can use the image as many times/where/when/how as you want without having to pay royalties. However, if you plan to use the photo for merchandising, you have to give Getty more specific information about how you plan to use it, including circulation quantities and licensing duration.

If you don’t buy licensing to use the photo, you legally have to pay royalties (a small percentage of each sale) to Getty images for using their product (Bernie’s photo on his chair). And if you don’t buy specific licensing for merchandising, you may be under even more legal fire 🔥

If you don’t pay Getty royalties, they have every right to press charges and demand payment. Bernie himself does, too, as you’re illegally using an image of him to profit, without his consent.

Note: Should you decide to sell stuff using the Bernie image, expect your store to get shut down by Etsy, no questions asked.

But this is just one image that’s currently trending. What about other gray areas of Etsy copyright infringement?

Copyright vs. trademark

Before diving too deep, you must know the difference between copyright and trademarks. Both can be infringed upon, even when selling on Etsy.

A copyright protects original works of creativity, such as books, articles, songs, and so on.

A trademark protects a word, sign, symbol, or other elements used to distinguish the source from the world of another.

For example, using Bernie Sanders’ image on a T-shirt without paying for the license is copyright infringement.

Adidas filed a lawsuit against Forever21 recently as they used a 3-stripe design in a new range of clothing. A fine example of trademark infringement.

Common Etsy Copyright Issues

That’s why Etsy encourages users to report stores that are blatantly ripping of clearly trademarked or copyrighted goods. Inevitably, some things do slip under the radar.

However, it can get pretty murky when one Etsy seller starts to sell something similar to another Etsy seller, primarily when no copyrights or trademarks exist. It’s hard to tell “who had it first.”

To help clear up this messy situation, one can claim “intellectual property.” Without going into the nitty-gritty, this is an elegant way of saying “it was my idea first.”

Etsy makes it easy to file reports on any of the following:

  • Intellectual property infringement
  • Trademark infringement (on you or a third party)
  • Copyright infringement (on you or a third party)

FAQ

Rather than spell out Etsy copyright infringement, it’s more effective to answer some common copyright infringement questions we get here at Marmalead.

But there are loads of [insert illegal use of a licensed product here] already on Etsy!

There sure are.

And many of them get away with it by using the word “inspired” in their product descriptions. Using this word somewhat acknowledges that something else has heavily influenced a product’s design but doesn’t admit to ripping it off completely.

Combine this with the fact that Etsy isn’t out there policing every listing, and that’s why you’ll continue to see lots of examples of blatant copyright infringement. It’s important to note that there’s no way of finding out which listings are removed for copyright infringement.

What’s there today may be entirely gone tomorrow.

What happens when Etsy finds an infringement?

Any Etsy employee that finds something they deem as infringing on a trademark or copyright will immediately take down your listing. You can either challenge the claim and “explain” yourself (which isn’t worth it) or accept the ruling and move on.

How many infringement notices do you get before your store is taken down?

This is a tricky question to answer as it seems to vary case by case. If your Etsy store is brand new and every single product is a blatant rip off of something to do with Star Wars, expect your entire store and payment details to be barred from Etsy indefinitely. If you have 2 or 3 strikes over several years, there shouldn’t be many repercussions. However, the ratio of infringement notices to banning is not a ratio worth testing.

Someone else contacted me and said they own the copyright to what I’m selling. What do I do?

Ask them for the proof and evidence of their copyright, and get a lawyer. With Etsy being so competitive, many sellers get a bit sensitive and decide to report anything remotely similar to their own. Others have every right to call you out. In most cases, it may be an honest mistake that you’ve copied someone else’s product. But in any case, always get proof.

In Summary

  • Don’t use photos that you didn’t take (or purchase through a royalty free service)
  • Don’t use images that you didn’t design
  • Copyright or trademark your work (check your state laws on how to do so)
  • Ensure you’re not infringing on someone else when launching a new product
  • Report anyone that you feel infringes on you
  • Know your rights at a local, state, and federal level.

Over to you

There’s no clear and concise way to explain copyright infringement, as it varies from product to product.

The safest way to protect yourself is to do market research before launching a product, copyright/trademark any unique idea of your own, and do some regular policing yourself.

 

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2 replies on “The Bernie Meme & Etsy Copyright Infringement”

Generic ETSY Search Results:
NFL: 182,174
MLB: 67,385
NHL: 36,098
Nintendo: 118,386
Sonic: 14,194
Disney: 951,897

1,370,134 total items found.
Highly doubt 5% of these listings have purchased licensing fees.

ETSY will not take these items down because the direct trademark holders have not found and reported them to Etsy.

“Etsy is a marketplace comprised of individual third¬-party sellers who run their own shops, create their own policies, and are responsible for their inventory, shipments, and complying with the law…. Sellers are responsible for ensuring they have all necessary rights to their content and that they are not infringing or violating any third party’s rights by posting it.”

Basically ETSY is today’s Napster by letting 3rd parties sell whatever copyright infringement items they want and looking the other way because they make too much money off of those products.

They are completely encouraging wholesale infringement and promoting the ‘third-party’ stores that do so with ‘Bestseller’ / ‘multiple 5-star review’ badges and their forced Google Ads.

Protect yourself cause ETSY doesn’t care how they make money from you, as long as no one complains and you offer free shipping.

It is discouraging to see just how much copyright infringement there is on Etsy. Not just the name brands you mentioned, but countless items from TV shows and movies. Type in Stranger Things and there are 16,590 listings! Dr. Who — 21,773 listings.
There are also thousands upon thousands of listings of people selling stock photos that they purchased. While not a copyright infringement, it’s certainly not original or handmade.

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