Copyright law is a broad and often misunderstood topic; the Etsy forums are rife with sellers confused about copyright infringement. I don’t blame sellers for being naive – I’ll be the first to admit that researching copyright is rather dry reading. I covered the basics in my Are You Violating Copyright article, but I want to dive deeper and debunk the most common copyright myths.
Myth 1: Fan art is not copyright infringement
Artists drawing characters from a show or book in their own style often believe their work is protected under copyright law. This myth is perpetuated by many copyright holders allowing or encouraging fan art, and by the sections of copyright law that seem to apply; the fair use doctrine is commonly cited as protection.
In truth, most pieces of fan art are clear-cut examples of copyright infringement; derivative works featuring major components of the original in an unlicensed illustration. Etsy themselves threw a red flag in a blog post detailing the myths of fair use.
Fair use has been upheld for parody – clearly presenting a social commentary on the original work. Daniel Savoie can safely cry fair use for his alternative Little Mermaid print; sellers offering Disney Cars birthday invitations wouldn’t fare so well.
Myth 2: The phrase “inspired by” helps avoid copyright issues
Copyright law carries more serious penalties if you represent yourself as the copyright holder. The phrase “inspired by” does make it clearer that you’re not pretending to own the copyright – yet also offers a clear admission that you’re knowingly violating copyright.
Sellers often use the phrase so they can sneak into search results for the copyrighted name. Noble as this may be to garner more business, it only serves to prove the point; the copyright holder has a valuable creation that’s being hijacked by imitators to turn a profit. A pillow with the Superman logo isn’t “inspired by” Superman – it’s stealing a copyrighted and trademarked logo to market an otherwise mundane pillow.
If your item can’t succeed on its own merit without including copyrighted names, it’s time to reconsider the item.
Myth 3: Purchased items can be repurposed how you choose
It’s true that you can repurpose items you purchase for non-commercial art, but the minute you list an item for sale on Etsy this protection no longer applies. The first clause in fair use determination asks whether the use was commercial or for nonprofit educational purposes. Spoiler alert – you’re gonna have a bad day in court if it’s commercial.
Licensed fabrics are commonly abused for this purpose; the fabric is licensed to be sold as fabric featuring the copyrighted characters. That doesn’t mean you can make a Care Bears pillow using the fabric and safely sell it. The selvage on the fabric or the end of the bolt will usually state “for personal use only.”
Myth 4: The copyright holder must not care because others are doing it
I’m going to sound like my mother – “If everyone else jumped off a bridge, I suppose you would too!” While the copyright holder may not be actively issuing DMCA requests to remove copyright-infringing items, that doesn’t make it legal or ethical.
Copyright infringement can also fly under the radar even if the copyright holder is actively pursuing it. Protecting copyright is a bit like playing whack-a-mole, as Kathy revealed in her guest article They Stole My Art. It’s also possible that other sellers have a license to sell the products; licensing fees can be more affordable than you think, ranging from 5-12% of the item price. It’s worth contacting the copyright holder to ask about licensing if you have a product in mind.
Myth 5: Anything on Google Images is in the public domain
Take a closer look on the Google Images page next time you search – clicking on an image to view detail shows a tiny “Image may be subject to copyright” disclaimer. It’s not uncommon for people using images stolen from Google to be smacked with a bill for unpaid license fees. Google’s right to present the low-resolution images as search results has been upheld in court, but that’s an entirely different story than lifting the images for use on your own site.
Etsy is one of many sites helping people publish items for sale that might once have been limited to family gifts or small craft shows. The rise of the amateur seller makes copyright infringement a much more widespread issue. It’s a double-edged sword – copyright becomes harder to enforce at such a broad scale, and the lack of enforcement makes it harder for a new seller to figure out what’s legal or not. What copyright myth have you seen spread that I missed?
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Myth 3: three words for you:
first
sale
doctrine
So many alterations of the Superman logo have been made and used … with largely ineffectual complaint from the mark proprietor … that the level of risk is fairly small. In other words, it is highly dilute and almost trite outside of the field of actual motion pictures and clearly related goods. The same overuse and triteness supports an argument of parody in the copyright context.
Fair use has been upheld for parody – clearly presenting a social commentary on the original work. This is not Myth.