IP Talk With Lawyer Mom

I saw this post about copyright infringement in the Etsy forums before I went to work the other day. I tossed in my two cents among the replies, then realized: I have my own in-house IP expert. I'm sure Etsy could benefit!

(My mom, aka Lawyer Mom, has been practicing patent law and other IP sundry for over thirty years. In addition to being an awesome mom, she's also a super cool pioneering lady engineer and one of the first women to work in a non-secretarial capacity at Bell Labs back in the 80s. Also, she crochets things for me and my brother and our friends and children in need. I bet if you asked nicely she'd make you a fetch scarf and hat combo. ;])

On Etsy, you can sell three things: Vintage, Supplies, and Handmade. Vintage and Supplies don't really concern themselves with IP, so this is of concern only to those of us selling in the Handmade category.

COPYRIGHT

What is copyright?

Copyright is basically saying, "I created this individual piece of work, this is MY blood sweat and tears." Anything that CAN be copyrighted is copyrighted "the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device" (source: US copyright office FAQ) [NOTE TO INTERNATIONAL FRIENDS: This whole entry is based on the premise that you are working in the US and with US laws. If you are in Canada or the UK, check with the copyright office your own government—though it's my understanding that most countries, especially Western ones, generally follow the US model.]

Can I copyright what I sell on Etsy?

That depends on what you're selling. Original fine art, whether it's photographs, paintings, collages, sculptures, prints, or carvings, is copyrighted. Patterns for crocheting, sewing, or knitting are also copyrightable. Furniture—unless it includes some of your own original art—is not. Clothing is not, but jewelry is—as long as there is some amount of "creative expression" involved that is not taken from another copyrighted source. Any photo you put on Etsy is also copyrighted, even if it's of work that is not copyrightable.

How do I copyright my work?

You just...do! Your copyright exists "the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." This is a point that confuses people, so I'm reiterating it here. This copyright lasts for the rest of your life, and seventy years beyond that point. (Unless you made it before 1989, in which case it only lasts fifty years after your death.) After that, it falls into public domain.

But that seems too easy.

I know! But it is. People sometimes confuse copyrighting and registering a copyright. You can register a copyright with the US Copyright Office for about $20 / copyrighted item. This isn't necessary for it to be copyrighted, but if you're worried about people ripping off your work and you want to have that government record, then go for it. Registered copyright will help with litigation. But that $20 fee only applies to one copyrighted item. The best way would be to group like items together. ("Spring 2008 crochet patterns," for example.)


How do I register my work?

You don't need a lawyer to register it. Copyright.gov has an e-filing process you can do yourself over the Internet.

Does my _____ violate someone's copyright?

Copyright only protects the original "form" of a piece. If you sell something "inspired by" a movie, video game, or TV show, you're fine. (For example, calling a werewolf-themed bracelet a "Jacob Black" bracelet is okay.) If you take artistic license with characters or things described therein, that's also okay. (For example, cute chibi versions of the cast of Serenity.) But as soon as you use actual imagery (a book cover, a movie poster) without altering it, then you're treading iffy ground. If you bought a pattern off of Etsy and then turned around and sold the result, that doesn't violate copyright—but trying to sell the pattern itself does, as does copying it and giving it to other craft friends. Since clothing cannot be copyrighted, replicas of outfits from movies or TV shows are okay.


If I'm concerned about potential copyright violation on my part, what do I do?

If you're really concerned, you should hunt down the original creator(s) or the current copyright holders and ask their permission. In writing. If you're selling anything really current or popular, this is a good idea, as obviously the creators have an especially vested interest in protecting that copyright.

BIG FAT EDIT that I'm taking out of the comments and putting up here so everyone can see RIGHT AWAY:

Miranda:Suggesting that ANYONE take the ask-for-forgiveness-not-permission approach when it comes to using other people's copyrighted material is a slap in the face to your community :(

And I would agree that in some cases, forgiveness-not-permission is a really callous attitude. My assumption going into this part (I admit to getting tired of chugging along with the writing and getting sloppy with my explanations!) is that people reading this article and using Etsy are good, decent people who, by default, would prefer to ask permission and not forgiveness. My answer was coming from an assumption of a "Well I can't find the copyright holder, now what?" perspective. Obviously, I didn't make that clear enough. So I'm going to make it big and clear here:

MAKE THE GOOD FAITH EFFORT TO CONTACT THE COPYRIGHT HOLDER OF ANY WORK YOU PLAN TO USE IN YOUR CRAFT.

But if you want to use that illustration from that 1967 children's book you got at the library sale, and you can't find contact information for the originator or her estate, you can still take the risk and use it—if you want and if you're okay with that. When you do that, you are of course opening yourself up to the small chance (but nevertheless, a chance!) that the original artist will find you and send that cease and desist letter. If that makes you uncomfortable, step away from the source material and find a suitable substitute from either within the public domain or with sources you can find more easily.

It's important to note that merely saying something like "all images copyright their respective owners" WILL NOT cover your butt, legally. Again, it's a nice gesture, to indicate that this is not *your* work, but it still doesn't take the place of permission.

Hopefully I made this part a bit clearer. Miranda, would you find this sentiment to be a better context and explanation?

/END THE BIG FAT EDIT

However, there's nothing in the way of legal action a person can take without first sending you a cease and desist letter. If you're worried about accidentally getting hauled up in court without warning, that won't happen. Business-wise, it's probably more efficient for you not to worry about it than to spend time and energy hunting down the original author and waiting for their permission.

The government doesn't care if you merely violate copyright. The government cares if you violate copyright and someone else cares about it. The other party first has to signal that they care about it, by sending you that cease and desist letter. It's only if you ignore their wishes that they can take you to court. So if you get one, comply! Duh. It probably doesn't hurt to send them a reply, stating that you willingly complied and withdrew the offending material from sale and destroyed it (as that's often what's asked of violators).

Someone is using my photos without permission/selling my copyrightable material as their own. What do I do?

This depends a bit on context; if someone is reselling your own original work or repurposing for something else, a little one-on-one discussion and settlement-reaching never hurt anyone.

Some Etsy sellers find their products being reproduced and resold by larger entities, though. You can still try to seek out their legal department for a out-of-court settlement (usually meaning that they pay you a licensing fee for the right to sell your work), but it might be more effective in that case to skip to the cease & desist letter.

In the cease & desist letter, you need to tell them to knock it off in no uncertain language. Items must be withdrawn from sale/taken offline/etc by a certain date, or you will pursue litigation. This is usually enough to get the job done. You can write this letter yourself, or hire an attorney to do it for you.

This becomes the point where it gets to be a matter of "is it worth it?" Claims between two individuals would go to just small claims court, where it's easy enough to represent yourself. Bringing in a larger corporation takes it to the big guns, so to speak—and you'll want an attorney for that. Bear in mind that you may not win, either; each case is different and each judge is different.

If, like a few other Etsyians, you find your copyright is being violated by companies outside the US, you do have some recourse. Still send the cease and desist order first. If they refuse, contact the International Trade Commission. The ITC can't go into another country and shut a business down for copyright violation (since different countries have different laws), and unfortunately they can't force a company to take down stolen photos from the Internet, but they can prevent their goods from entering the United States, and in some cases destroy the fakes that have already shipped in.

TRADEMARK

What is trademark? How is different from copyright?

A trademark is the name of an entire business or a concept. Walmart is a trademark. McDonald's is a trademark. Those are official corporate names that no one but Walmart or McDonald's are allowed to use. It doesn't protect any of their goods, just their name. Big Mac is also (probably) a trademark, meaning you're not allowed to open up your own burger stand and call your burgers Big Macs. The little TM you see next to a well-recognized name indicates that it's a trademark.

Like copyright, you don't necessarily have to go through legal channels to get one. I can call my business Kokoba Jewelry or Kokoba Creations or whatever else and add TM to indicate that it's mine.

However, for that ® sign, you must register it, and if you want to take anyone to court over using your trademark, you also have to register it. Registering a trademark is a bit more expensive than registering copyright (it costs about $250, since you need to hire a lawyer to do it), so Lawyer Mom is lukewarm about it. If you're just selling from your Etsy shop in your spare time, don't worry about it. If you're in the public a lot, going to a lot of shows and making a lot of sales, and you have a lot riding on brand name recognition, then you should go ahead and register it.

How do I register it?

Find yourself an IP lawyer (like Lawyer Mom) and have them file it for you. The name you're aiming to trademark can't be a generic descriptor (like I couldn't register "math jewelry"); it has to be kind of unique and specialized (like I could register "Kokoba"). Logos can also be trademarked (like McDonald's "golden arches"). Each name and case is different; if you decide to register your trademark, the lawyer working with you will help you figure out exactly what it is you can trademark for your business.

If you have a brand line of products, you can also register that brand name's trademark as well, provided it follows the aforementioned rules about trademarks.

I have another question for Lawyer Mom you didn't answer here. / I think you got something wrong.

Then I'd love to ask her for you! Send an Etsy convo to Kokoba, leave a comment here, or send an email to kokoba at gmail dot com. (Gotta watch out for those spam spiders, after all!)