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.
The 94th Academy Awards seemed like any other Oscars event… right up until Will Smith took to the stage to slap Chris Rock for making a joke aimed at Smith’s wife. Almost immediately after, social media blew up.
It’s not often that a meme-worthy event takes over the internet like this (the last time this happened, it was Bernie Sanders with his cozy mittens). But when it does, you can be sure that people will work quickly to capitalize on the controversy. Even Etsy sellers.
And while it may seem like a great business strategy to jump on fads like the Will Smith slap to sell merchandise with his likeness, you’re really playing with fire when it comes to copyright laws.
Because ultimately, selling products with someone’s likenss without their consent (especially celebrities) is risky business. Not to mention, any content aired during the live event is likely licensed by The Academy or ABC, the network that aired it.
Still, there will be Etsy sellers looking to make a quick buck and likely breaking copyright laws in the process.
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.
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.
Don’t let Etsy copyright infringement slap your business
Yup, you read it right, that photo of Bernie sitting in his foldable chair has an owner, and likely so does any content with Will Smith slapping Chris Rock…
The photo of Bernie Sanders is owned by Brendan Smialowski, a photojournalist for Agence France-Presse (“AFP”).
To legally use that Bernie 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 a license 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 Bernie and Will Smith are just two examples of trending memes. 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 Will Smith’s 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 off clearly trademarked or copyrighted goods. But 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)
Etsy Copyright FAQ
Rather than spell out Etsy copyright infringement, it’s more effective to answer some common copyright infringement questions we get here at Marmalead.
Q. But there are loads of [insert illegal use of a licensed product here] already on Etsy! Why aren’t they taken down?
There sure are.
And many of them get away with it by using the word “inspired” in their product descriptions, or Etsy simply hasn’t noticed yet.
Using “inspired” 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.
Q. 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.
Q. 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 shop 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.
Q. 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.
- 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.