Wednesday, June 16, 2010

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!)

12 comments:

  1. Thanks, Lawyer Mom!

    I hadn't ever considered copyright on clothing, but since that's mostly what I mess around with, it's good to know I can't really get myself into too much trouble.

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  2. I have been making Neck Warmers for over 10 years and was recently contacted to end my listings by a Company I never even heard of
    "Original Neck Buffs" I sometimes use the common description "Neck Buffs". I never used their name or referenced it..how can they make me stop listing my product which is not even close to the ones that they market..by simply calling them Buffs?

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  3. Ann, just to be clear: did they want you to withdraw your product, or just to change the terminology you were using to describe them?

    I'm going in for a round 2 with Lawyer Mom as soon as we're home together for more than fifteen minutes at a go. I will (hopefully) have an answer for the next Lawyer Mom blog post (I anticipate having it ready by this Wednesday).

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  4. "You should try to hunt down the original creator(s) or the current copyright holders and ask their permission.... 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"

    Attitudes like this really hurt copyright holders, and as many folks on Etsy and the like are CREATORS, this attitude hurts the community that I'm assuming you wrote this FAQ up to help educate and protect.

    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 :(

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  5. Miranda: This part will need some reworking. Heh.

    For very very current things (for example, Twilight is a popular one), you should DEFINITELY contact Summit Entertainment or Ms. Meyers' publishers, etc.

    For hand-crafted things made with love, yes, you should also contact the originator. True, they *probably* don't have the time or werewithal to police their copyrights, but we can agree that it's the right thing to do. Will you get in trouble? Well, no, probably not. Is it still illegal? Technically, yeah. Is it a jerk move not to? I would say, totally.

    But the questions I got about this topic from Etsyians were by and large about older, more vintage pieces being re-worked and upcycled into cute contemporary things. (I won't provide any links, as the question came in an Etsy convo with the understanding that the link to the shop etc would be kept private.) They weren't old enough to be very clearly in the public domain, but they were also far, far from being contemporary pieces. This seems to be the bulk of work that people on Etsy are concerned about as it regards copyright violations.

    Yes, make the good faith effort, but if it comes to a point where tracking down the originator is costing you a lot of time (and maybe money), then I think *economically* the best decision at that point becomes "cross your fingers and hope." It's a seller's personal decision to decide how strictly they're going to observe copyright rules.

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  6. I just found out that indeed the single word "Buff" is trademarked by a company in Spain..go figure..it is not the product that they have a problem with...it is simply referring to the Tube scarves as Neck Buffs.
    I wish I could afford to Trademark the words "Shoes" or "Shirt" LOL

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  7. Kokoba, thanks for the post--I've bookmarked your blog. The only thing I'd take issue with is that you can't copyright jewelry. Copyright is for print matter only. You can patent the design, such as many costume jewelers did in the early 20th century. But nowadays, with patents having to be renewed/paid for every 6 or 7 years, that's prohibitive unless you are a multi-million dollar industry. You could copyright a photo or drawing of your jewelry, but that wouldn't protect you from another person making that design and selling that piece of jewelry. It would only protect you from their using your photo or drawing--and that protection is only available if you've registered your copyright ($35) and are willing to pay hundreds of dollars to bring them to court. For most Etsians here, that wouldn't be cost-effective. Anyway, great post; thanks for the overview!

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  8. Actually (and people have touched on this in the forum), you *can* copyright jewelry. At the very least, some of it is copyrightable. (It's considered art, in some form, is the short answer on that.) The article I mentioned in Lapidary Artist's April 2010 issue talked a LOT about that. I won't reproduce the article in full here (how ironic would that be!), but another post will touch just on jewelry & highlight some of the main points therein (one of the sources in the article was actually a woman who acts as Etsy's legal counsel!).

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  9. (PS: I do agree that for like 99% of Etsy sellers, the time and eventual $$ it would cost to *register* those copyrights would simply not be worth it, though!)

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  10. Forget the words "should" and "moral". Yes or no.....can a pattern designer tell you if you can sell items made from their patterns? Or how many you can sell? Or where you can sell them if you can sell them?

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  11. Sorry.......I should have specified crochet or knitting itmes. Not just clothing, but any item.
    I did another post to start with but I guess it was too long as it didn't post so shortened the second and forgot to put the crochet/knitting part in.

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  12. Great Post- thank you for this! So you could technically get around this by creating your own pattern, and making your own fabric through Spoonflower I believe...do you have any info here? I just sent them a couple of questions regarding this, however their fabric is a bit more expensive at $18.50 per yard. I am just starting out here so this really helps! Please check out my site- it's still in the works but I love connecting with other like/minded creatives. Off to class to learn more about IP and copyright...thanks for sharing:)
    www.joannepaynterdesign.com

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