Copyright infringement is rampant on Etsy; search for “Hello Kitty” or “Disney Cars” and you’ll find thousands of flagrant copyright violations. Many sellers willfully abandon any respect of copyright – after all, these items are in high demand even if they’re illegal. Some sellers just don’t know any better.
Educating yourself in the basics of copyright law can go a long way to avoiding any legal surprises when running a shop on Etsy.
What is copyright?
Copyright is automatic legal protection for creators of original works. The word itself is derived from “the right to make copies,” which is the most basic protection offered by copyright; the original creator has exclusive right to produce copies of the work. Copyright also prohibits anyone but the creator to create derivative works – anything that contains major parts of the original protected work.
The purpose of copyright law isn’t to make the creators rich, but to encourage creativity for public benefit. It tries to strike a balance between giving creators adequate protection, yet making the protection limited and temporary enough that the work can eventually be built upon.
The automatic part is important – as soon as a work is “fixed in a medium,” it has copyright protection. No registration required. The © copyright symbol was once required to receive copyright protection, but now serves only as an optional notice.
Copyright protection comes with an expiration date – in the U.S., copyright expires 70 years after the death of the creator. Nearly every country in the world participates in the Berne Convention, which offers a similar 50 year term after death. After copyright expires, the work is considered public domain and can be used freely – unless it’s trademarked.
What can be copyrighted?
Copyright is broad, but not all-encompassing. The law puts forth three requirements for a work to be eligible for copyright: fixation, expression and originality.
Fixation means the work must be locked in a permanent state. A song is copyrighted once it’s recorded on paper or released on a CD, but a live performance isn’t protected.
Expression digs at the core of copyright; the work must be expressed to be protected. Ideas can’t be copyrighted. J.K Rowling had the idea of a budding wizard named Harry attending Hogwart’s, but until it was expressed in the first Harry Potter manuscript, it wasn’t copyrighted.
Originality is fairly self-explanatory. Copies of someone else’s work can’t be copyrighted, nor can short phrases or common facts. The work must meet a base level of originality to be eligible.
Examples of protected works
The two examples from earlier in the article – Hello Kitty and Disney’s Cars – are protected by copyright and trademark; images of either appearing on unlicensed products are completely illegal.
Lyrics from any song released since the advent of the cassette or CD are still copyright-protected and cannot be used in unlicensed products.
Any novel, poem or other literary work published after 1923 is almost certainly still copyright-protected, since works before 1978 benefit from a 95-year copyright afforded by the shuffling of copyright law in the 70s.
Trademark protects works indefinitely, so long as the owner continues to use the mark. Mickey Mouse is still protected by copyright due to the 95-year exception, but even after his copyright expires in 2023 you still can’t use Mickey on products due to trademark law. Similarly, use of brand names, college and professional sports logos, and other trademarked works in products is illegal.
Copyright infringement on Etsy
It’s easy to find copyright laws being broken daily on Etsy; the amount of illegal products is staggering. Sellers often operate under the faulty assumption that it must be allowed since it’s so common. The reality is that Etsy doesn’t police listings for copyright violations – they take shelter under the DMCA. Etsy will immediately remove any item that’s requested with a DMCA notice and terminate the accounts of repeat offenders.
DMCA notices must be issued by the copyright holder. Lately, Disney and other large companies have taken more notice of the world’s largest handmade marketplace. DMCA takedowns are the most likely legal recourse you’ll encounter if you violate copyright, but serious violations can also be taken to the courtroom and suffer punishment of jail time and serious fines.
It’s depressingly common for sellers to have a double-standard when it comes to copyright. I’ve heard sellers complain about others stealing their designs while at the same time plastering unlicensed Disney characters or Dora the explorer on their products. Imagine if one of your creations suddenly became famous – it’s featured in a movie, or recommended by Oprah. Do you suddenly have less right to protect your creation just because it’s bigger?
It’s unethical to use copyright-protected works without a license – even those from big companies that you imagine won’t be hurt by it. I’m proud to be a member of Etsy because I see wonderful, original handmade creations every day. It’s sad that so many amazing artists are being undermined by a site filled with copyright infringement.
The safest route for Etsy sellers is simply to make original creations without using images, names or products that aren’t your own. Let the creativity flow.
Wondering how you can protect your own work from copyright infringement? Stay tuned for upcoming articles about protecting your works from infringement.
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Hello. I don’t know where to go to find help.
Recently I have developed a WatchFace (for google smart watch) that is for personal use. The main theme is Iron Man, however the idea(of it’s function) is actually unique.
All graphics were made and designed by myself. Can you please tell me my rights in regards to distributing and/or selling this on the Google Play store for other Android watch users can purchase and/or download? Or point me in the direction for more information? Thank you.
Roger, I cannot really speak to your rights in regards to distributing or selling your WatchFace, as I am not a lawyer. I’d recommend that you get in touch with Marvel Comic’s licencing department. Some companies are flexible in terms of working with distribution of fan art.
I work in a copy and print shop, it is amazing how many people I have to turn away because of Etsy-made products that are copyrighted. Most of the time when I tell them that an image of Iron Man or Hello Kitty cannot be used without written consent, they all point to “its says right here on my order…”
“You can print these at any local print shop (OfficeMax, Office Depot, etc).” And I have to say again, “I’m sorry however, this Etsy user is actually breaking the law and I can’t print these materials for you. 5 out of 7 days I have a customer absolutely lose it that I can’t print their invitations or placemats for their child’s birthday. It is SO frustrating!
Thanks for adding your perspective. I can imagine how frustrating this must be for you. This is an interesting point – that even Etsy sellers that “get away with” selling these items on Etsy might be creating very upset customers.
What do you mean invitations? So I can’t even draw a picture of iron man, design the birthday card invitations with my own skills and paid software, and have it printed and distributed to a few friends, to invite them to my house?
Roger, you can certainly design and print invitations for your own personal use without issue. If you sell the invitations, that is where you would run into problems. Hope that clears things up.
I have recently found an Etsy work that is a derivative of my original work. This led me here to this article. I plan on following up with some kind of action once I get clarity on the steps required.
I was wondering about this the other day. If something like a quote from a movie or tv show is used, is that a copyright violation? For example, I love funny cards or shirts that have sayings on them. The other day I searched the movie Mean Girls on Etsy and found so many things! They have iPhone cases that look like burn books and so many of the character’s quotes, are things like this okay to use?
It can be a copyright violation, but as with many copyright questions the answer is an unsatisfying “it depends.” Short phrases from copyrighted works have been cleared from copyright infringement in the past, but the legal waters get murkier if the phrase is easily recognizable as being taken from that movie. If the phrase was used in promotional material for the movie it may also fall under trademark. It’s possible that the sellers have a licensing agreement with the copyright holder; licensing fees for entertainment can run 9-10% of the product sales price.
For a more long-winded explanation, this Avvo answer has replies from actual lawyers more qualified to answer than myself. I wouldn’t personally sell those items without a license. Hope that helps!