June 13, 2008 at 11:15 pm · Filed under Copyright / Branding, Laws & Regs, Uncategorized · By quirke
UPDATE by quirke 06-15-08
The accused shop, Ulljasbeads.etsy.com, is no longer active on Etsy.
————————————–
UEN has received an outline from Etsy seller Abeadisborn detailing an apparent case of fraud on Etsy, alleging that another Etsy seller has been purchasing and re-selling lampwork beads from other artists under the claim that she had made the beads herself. The following information has been published with permission of the author.
On April 19th, 2008, I received an email from a fellow glass-bead maker on Ebay. She had asked if I was aware of someone purchasing my handmade lampwork beads through Ebay, and selling them in her own Etsy store, claiming to have made the beads herself. I was quite shocked, and had to investigate further. This link: http://cgi.ebay.co.uk/ws/eBayISAPI.dll?ViewItem&item=200215772276&category=34070 shows my Ebay auction, won by the alleged IP offender, gerbera28, aka Ullja/Melek Kuntze. By request, I made this auction available as a “buy it now” for the customer, because she said she was in need of the beads very quickly. The beads were mailed to: Melek Kuntze [address removed], with a delivery confirmation of 9101 7850 9140 1537 7553 85, which were delivered to the home at 5:24 PM on April 22, 2008 in [location removed].
After investigating further, I found this indeed was true. This link: http://www.etsy.com/view_transaction.php?transaction_id=8440928 is the link to the altered by Etsy sale information, of my beads. Sold by Ullja Kuntze, gerbera28. The attachment with this email is the original sold information page, screen printed, BEFORE Etsy made alterations to the description. Also attached, is the PDF file of the documents I faxed to Etsy, on May 27th 2008, pertaining to this matter.
After contacting other fellow lampworkers about this occurance, many beadmakers like myself, found evidence of this happening to them as well. It became a very big issue, and more complaints were sent to Etsy.
I followed Etsy’s Intellectual Property Right claim guidelines, by faxing them all the pertinent information pointing to this Etsy seller, and provided them with the proof, showing her fraudulent activity on Etsy. Etsy’s attorney, Sarah Feingold, called me to confirm that she had gotten the fax information, and the matter was being looked into. Shortly after, I noticed about 72 sale listings at Ulljasbeads.etsy.com, disappeared. Those listings were of the same nature as mine. They were handmade lampwork beads, made by people other than her, and she knew she was caught. I have a PDF file of all Ulljas Etsy listing pages, before they were removed. If you need them, please let me know so I can send you a copy.
To date, Ulljasbeads.etsy.com is still an active selling member of Etsy. She is still advertising other people’s handmade lampwork beads on her website, located at http://yhst-59139618684516.stores.yahoo.net/ - if you follow this link, the blue encased floral bead featured on her front page, is still being displayed, whos copyright belongs to someone other than her, who has also filed an IPC complaint on her.
In case the screenshot linked to is unclear, the text that was removed from the sold listing reads “All my beads are made by me in my private glass studio in Milan Italy… kiln annealed overnight for durabilityand strenght and Dremel cleaned for you”.
The listing that Abeadisborn refers to as being altered by Etsy may be one of the listings that Etsy has admitted to altering (see our previous coverage here).
From Etsy’s Copyright Policy:
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent, it is Etsy’s policy:
1. To remove or disable access to the material infringing upon the intellectual property;
2. To notify the user that Etsy has removed or disabled access to the material; and
3. That repeat offenders will have their infringing material removed from the system and that Etsy will terminate such users’ access to the service.
June 11, 2008 at 9:52 pm · Filed under Copyright / Branding, Laws & Regs, Listings · By GreenMamba
Hints of behind-the-scenes edits of ’sold’ listings have surfaced recently in the Etsy fora. Today, Etsy member quirke asked pointedly (twice) for confirmation or denial that this was practiced/condoned by Etsycorp. The first thread was closed quickly, without explanation, by Etsy’s on-staff lawyer, SaraSays. The second, however, was answered truthfully, and at some length, by admin and co-founder Matt.
matt says:
Howdy,
I want to start off by apologizing for closing an earlier thread on this subject. Since we do not publicly discuss individual private matters, we thought that was the best course of action at the moment. That said, in doing so we did not address the questions you were asking, and I would hate for a bit of misinformation to create a great deal of speculation (yes, I know that closing a thread does not help matters). So, If I may, I would like to speak to your concerns here.
As a general policy we do and will not alter any sold listing records. I completely agree that this is inappropriate and of questionable ethics.
So, have we ever? Yes.
In extremely rare occasions and in our best efforts to responsibly comply with the DMCA (http://www.etsy.com/copyright_policy.php), we have had to remove text or images from a sold listing .
We have never removed the entire listing itself or altered the statistics or data of an individual shop or of Etsy as a whole.
While, obviously, I can not discuss these specific cases, I am happy to try to answer any other questions you may have on the subject and certainly invite you to email me at matt [!at] etsy.com . I also encourage you to check out our policies here for further clarification: http://www.etsy.com/copyright_policy.php
Thanks, Matt
Posted at 6:46 pm, June 11 2008 EST
For a bit of background on this issue, see here and here.
UPDATE by GreenMamba 6-13-08:
After two shut-downs, a third thread has been started by quirke, asking general questions about the practice and ramifications of editing ’sold’ listings.
And a fourth . . .
And a fifth, by another Etsy member . . .
January 28, 2008 at 4:53 am · Filed under Copyright / Branding, Laws & Regs, Miscellaneous · By quirke
Alert Etsy seller Trollflings noticed today that some of her images were being used on www.polyvore.com, a website which allows users to upload photographs and create sets or collages of images.
Trollflings discovered 50 pages of images from Etsy shops uploaded by Polyvore’s membership, and started this thread about the issue. It quickly became apparent that very few, if any, Etsy sellers were aware their images were being used on the site, let alone had given permission.
Under Title 17, Chapter 1:106 of the U.S. Copyright Act, “Exclusive Rights in Copyrighted Work” it states:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
Some of the pages with images from Etsy sellers found on Polyvore contain a link that simply says “etsy.com” that links back to the item listing on Etsy. Some pages contain no such links. No pages give written credit to the owner of the work or Etsy shop name. Some images from Etsy sellers have been altered, clipped, or otherwise used by Polyvore members to make collages, which were then posted on Polyvore as works by Polyvore members. Polyvore provides a graphics application on their site which allows people to make alterations to image they have uploaded.
Additionally, some images from Etsy users that had watermarks or copyright notices on them were found to have been tampered with to removed the watermark or copyright notice.
Under Title 17, Chapter 5:506, “Criminal Offenses” of the U.S. Copyright Code, it states:
(a) Criminal Infringement.—
…
(d) Fraudulent Removal of Copyright Notice.— Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.
In Polyvore’s Terms of Service, they state: [bolding is mine]
User Submissions
1. The Polyvore Website may now or in the future permit the submission of photo or other content submitted by you and other users (”User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Polyvore does not guarantee any confidentiality with respect to any submissions.
2.You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Polyvore to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.
3. Polyvore does not claim ownership of User Submissions. However, with respect to User Submissions or content you make available for inclusion on publicly accessible areas of the Service, you grant Polyvore worldwide, royalty-free and non-exclusive license(s) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content on the Service in connection with the Polyvore Website and Polyvore’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Polyvore Website (and derivative works thereof) in any media formats and through any media channels. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Polyvore removes such Content from the Service.
4. In connection with User Submissions, you further agree that you will not:
submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Polyvore all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Polyvore or any third party;
submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
post advertisements or solicitations of business;
impersonate another person.
5. Polyvore does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Polyvore expressly disclaims any and all liability in connection with User Submissions. Polyvore does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Polyvore will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. Polyvore reserves the right to remove Content and User Submissions without prior notice. Polyvore will also terminate a User’s access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. Polyvore also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Polyvore may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
6. It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act.
The images referenced, made accessible or made available to you on these pages or by means of the Polyvore Service are protected by the copyright and trademark laws of the United States and other countries. You may need to obtain authorization of the owner of such materials before using them for any purpose other than viewing on the web. For authorizations to use an image, please contact the image owner as indicated on the source site, not Polyvore. Polyvore cannot give you authorization to use the copyrighted images. We cannot guarantee that the Polyvore Service will not locate unintended or objectionable content and Polyvore accepts no responsibility or liability for the content of any site included in any Polyvore item or set, or otherwise linked to by the Polyvore services, or for your use of such content. Polyvore reserves the right to remove any pictures or content without notice to you, any other user, or any third party.
We will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide us with the following:
A physical or electronic signature of the copyright owner or the person authorized to act on its behalf;
A description of the copyrighted work claimed to have been infringed;
A description of the infringing material and information reasonably sufficient to permit Polyvore to locate the material;
Your contact information, including your address, telephone number, and email;
A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and, under the pains and penalties of perjury, that you are authorized to act on behalf of the copyright owner.
Claims can be emailed to copyright@polyvore.com
7. You understand that when using the Polyvore Website, you will be exposed to User Submissions from a variety of sources, and that Polyvore is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Polyvore with respect thereto, and agree to indemnify and hold Polyvore, its Owners/Operators, affiliates, and/or licensers, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
In this thread on the issue started by Kateblack, a representative from Polyvore has invited any Etsy seller who does not want their image used on the Polyvore website to contact them and request removal.
At the time of this article publication, Polyvore has removed some of the illegally used images.
We at UEN respect the rights of artists to control how and where their images are used, and encourage our readers to investigate Polyvore’s use of images for themselves.
[ed. by KateBlack at 11:14am, January 28, 2008. There's been an interesting revelation from GreenMamba on the Etsy forums. While individual images have been removed, many collages remain which still contain those individual images. If you thought your work was removed from Polyvore, it may still be there. Artists with violated copyrights will have to contact Polyvore about each individual collage which contained their work. ]
January 22, 2008 at 1:20 pm · Filed under Copyright / Branding, Laws & Regs, Marketing, Miscellaneous · By GreenMamba
In this thread, Etsy lawyer Sarah Feingold announces the launch of the much-anticipated ‘Trademark Permissions Program’.
SarahSays says:
Now you can apply to get official permission to use the word “Etsy,” Etsy’s logo, and other marks in your awesome handmade items! I have been talking about this program and now it’s up and running.
Please check out my Storque article for more information!
http://www.etsy.com/storque/section/etsyNews/article/etsy-trademark-permissions-program-this-aint-no-cease-and-de/15/
Thanks!
Sarah
Posted at 10:38 am, January 22 2008 EST
August 19, 2007 at 10:12 pm · Filed under Copyright / Branding, Laws & Regs · By JB
Regarding use of the Etsy name, logo and other trademarks by etsy members, there has been some confusion about:
1. which specific items on the etsy site are protected by trademark?
2. Are etsy street teams who have already made promotional material or websites with the etsy name going to have to change all their material?
3. Are new street teams being asked not to use the name etsy in their team names?
4. What should members do while they are waiting for etsy to develop their formal permission process for use of the etsy trademark?
SarahSays has tried to answer some of these questions: (bolding added by editor)
I hope this helps to clarify:
Scenario 1)
Knittie makes a knitted bag that says “I love Etsy” on it. She applies to use Etsy’s logo, she is granted the right to use the logo FOR FREE.
Scenario 2)
Sarah makes a website www.SarahlovesEtsy.com. Her website features her Etsy likes and her dislikes. Sometimes Sarah criticizes Etsy. She applies to use Etsy’s logo. She is granted the right to use the logo FOR FREE!
Scenario 3)
Meanie makes a website that has the word “Etsy” in the domain and features adult material. Meanie applies to use the Etsy logo. He is not granted the right to use it. He is asked to take it down.
Scenario 4)
Uncrafty uses a company to drop ship tshirts that says: “Etsy is nice.” This use does not comply with Etsy’s policies. Uncrafty is asked to stop her use of the Etsy logo.
Scenario 5)
Streetie is on a street team called “Streetie’s Etsy Street team.” Streetie applies to use Etsy’s name. Etsy grants Streetie the right to use the name, FOR FREE.
Scenario 6)
Cardie has a business card that has her Etsy url in it and says: “buy Cardie’s art at Etsy.com.” Cardie does not have to apply for this use. This is fair use. Cardie is using the Etsy trademark to describe where she buys and sells all things handmade.
Why are we having a trademark program? To protect Etsy’s brand. It’s just that simple. That’s it. Just like Nike or Coca-Cola, Etsy is a trademark and as such, Etsy must police its brand or it will lose the right to do so in the future. So if a bad company makes a product and labels it an “Etsy” product and sells the environmentally harmful product and children are harmed, Etsy will be able to get this company to stop. If Etsy allows anyone to use the mark without permission, when the bad company comes around, Etsy will not be able to stop this use.
There have been uses of the Etsy mark that Etsy has not liked, and Etsy has asked for this to stop. Etsy has been policing its mark.
Hold tight. We love your creative uses that comply with Etsy’s policies. If you’re currently using the Etsy logo, keep doing what you’re doing. You do not have official permission YET, but as soon as the program comes out, apply (business as usual until we announce it). Most likely so long as your use complies with Etsy’s policies, Etsy will grant you permission to use the trademarks for FREE.
We will be very fair about the program.
I hope this helps,
Sarah
Posted at 8:44 pm, August 19 2007 EST
SarahSays says: (bolding added by editor)
Lollibomb: thanks!
Laurenrose: use your Etsy mini! No need to apply.
And in Scenario 3) when I said “adult material” I mean porn.
The program will apply to the name “Etsy” or the Etsy logo of the reddish orange rectangle with the white Etsy.
What I want everyone to understand is that in general, Etsy loves your uses. We have to do this to protect our brand.
This last bolded statement appeared to contradict a previous statement.
“The name Etsy, and other Etsy graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Etsy, Inc. in the U.S. and/or other countries.”
SaraSays clarifies:
SarahSays says:
eclipse: Sorry, the program applies to all of Etsys marks not just the Etsy name or the Etsy reddish logo. I was answering a specific question and it seemed as if I was making a blanket statement and for that I apologize.
This does apply to “The name Etsy, and other Etsy graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Etsy, Inc. in the U.S. and/or other countries.”
and yet more clarification.
Etsy has some federally registered trademarks in the U.S. (and in various other countries). Some trademarks are pending federal registration. And other intellectual property, although not federally registered, or registered in a state, is part of the Etsy brand. And as such, this intellectual property is protected.
The statement is overly broad to protect all of these uses. I want to protect current trademarks and future trademarks. Again, the most important thing to remember is that Etsy loves uses that comply with our policies. We love it. LOVE IT! The best way to protect the brand is to have the program. You will apply and Etsy will grant certain uses for FREE. Etsy is just trying to protect our brand.
If you want to use a mark located on Etsy, any mark, fill out the form. If you’re not sure if the mark is protected, ask. So long as your use complies with Etsy’s policies, it’s very likely we’ll grant you permission to use it…FOR FREE.
I hope this helps to clarify.
previous coverage of the etsy trademark issue
http://etsynews.com/304/on-using-the-etsy-namelogo/
http://etsynews.com/344/etsys-trademark-enforcement-plan-any-trademark-lawyers-here-to-comment-or-discuss/
August 17, 2007 at 1:40 pm · Filed under Copyright / Branding, Laws & Regs · By The Janitor
Sarah, a lawyer at Etsy, said:
Hey,
The name Etsy, and other Etsy graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Etsy, Inc. in the U.S. and/or other countries.
The truth is if Etsy allows anyone to use marks similar to Etsy’s Marks in any way, either in products on websites or at events, without permission, Etsy could lose its trademark rights.
Etsy will be implementing a program where individuals will fill out an application specifying aspects of the requested use of Etsy’s Marks. Etsy will review the application and in many circumstances Etsy will grant limited permission to use the approved Marks.
This program applies to everyone, even street teams. Street teams will have to request permission to use the Etsy mark in domain names or in products.
Thanks!
Sarah
I added the bolding to the text above. When I asked what the bolded text includes as far as what’s on the Etsy pages, Lauren/Stellaloella said the policy would be posted to the site once finalized. That’s great but still doesn’t clarify what elements Etsy is claiming trademark rights in. They have registered some things with the US Trademark office but I’m just a little concerned with the breadth of Sarah-the-lawyer’s statement in light of some of her ideas regarding privacy/confidentiality of commercial emails to the public containing non-sensitive info. Sarah, the lawyer at Etsy, says
-an email from any Etsy employee
-about Etsy policy or procedure or any generically-applicable info
-which doesn’t contain any private or confidential info such as info relating to an account or another user
-which is not sent to someone under a non-disclosure agreement
is not something they think can be published - anywhere. Sarah wasn’t clear on what basis Etsy was going to try to enforce this, but the implicit threat is there, ain’t it? Click here for the full thread discussing this topic. I’ve been lax about posting about this issue separately but will be back to do so when I have a little more time.
Our previous coverage of the Etsy’s planned trademark licensing program can be found here.
Update August 19 by JB
SarahSays says: (bolding added by editor)
I hope this helps to clarify:
Scenario 1)
Knittie makes a knitted bag that says “I love Etsy” on it. She applies to use Etsy’s logo, she is granted the right to use the logo FOR FREE.
Scenario 2)
Sarah makes a website www.SarahlovesEtsy.com. Her website features her Etsy likes and her dislikes. Sometimes Sarah criticizes Etsy. She applies to use Etsy’s logo. She is granted the right to use the logo FOR FREE!
Scenario 3)
Meanie makes a website that has the word “Etsy” in the domain and features adult material. Meanie applies to use the Etsy logo. He is not granted the right to use it. He is asked to take it down.
Scenario 4)
Uncrafty uses a company to drop ship tshirts that says: “Etsy is nice.” This use does not comply with Etsy’s policies. Uncrafty is asked to stop her use of the Etsy logo.
Scenario 5)
Streetie is on a street team called “Streetie’s Etsy Street team.” Streetie applies to use Etsy’s name. Etsy grants Streetie the right to use the name, FOR FREE.
Scenario 6)
Cardie has a business card that has her Etsy url in it and says: “buy Cardie’s art at Etsy.com.” Cardie does not have to apply for this use. This is fair use. Cardie is using the Etsy trademark to describe where she buys and sells all things handmade.
Why are we having a trademark program? To protect Etsy’s brand. It’s just that simple. That’s it. Just like Nike or Coca-Cola, Etsy is a trademark and as such, Etsy must police its brand or it will lose the right to do so in the future. So if a bad company makes a product and labels it an “Etsy” product and sells the environmentally harmful product and children are harmed, Etsy will be able to get this company to stop. If Etsy allows anyone to use the mark without permission, when the bad company comes around, Etsy will not be able to stop this use.
There have been uses of the Etsy mark that Etsy has not liked, and Etsy has asked for this to stop. Etsy has been policing its mark.
Hold tight. We love your creative uses that comply with Etsy’s policies. If you’re currently using the Etsy logo, keep doing what you’re doing. You do not have official permission YET, but as soon as the program comes out, apply (business as usual until we announce it). Most likely so long as your use complies with Etsy’s policies, Etsy will grant you permission to use the trademarks for FREE.
We will be very fair about the program.
I hope this helps,
Sarah
Posted at 8:44 pm, August 19 2007 EST
SarahSays says: (bolding added by editor)
Lollibomb: thanks!
Laurenrose: use your Etsy mini! No need to apply.
And in Scenario 3) when I said “adult material” I mean porn.
The program will apply to the name “Etsy” or the Etsy logo of the reddish orange rectangle with the white Etsy.
What I want everyone to understand is that in general, Etsy loves your uses. We have to do this to protect our brand.
July 30, 2007 at 10:23 am · Filed under Copyright / Branding, Laws & Regs, The Future · By starrydesigns
SarahSays says:
The name Etsy, and other Etsy graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Etsy, Inc. in the U.S. and/or other countries.
The truth is if Etsy allows anyone to use marks similar to Etsy’s Marks in any way, without permission, Etsy could lose its trademark rights.
Therefore, Etsy will be implementing a program where individuals will fill out an application specifying aspects of the requested use of Etsy’s Marks. Etsy will review the application and in many circumstances Etsy will grant limited permission to use the approved Marks, for free. Etsy loves your creative uses of Etsy’s Marks, and Etsy is not trying to put a damper on your creativity or your expression.
So…please stay tuned.
Thanks,
Sarah
Posted at 10:14 am, July 30 2007 EST
Further explanation can be seen here.
Even though Etsy has mentioned in April 2007 that they have a simple release form to use their logo, it seems like the idea has been scraped. Etsy is currently working on implementing a new program, as SarahSays mentioned above.
Meanwhile, to avoid breaking rules, feel free to use resources provided here for your marketing efforts.
EDIT by starrydesigns
For people who are currently selling products with the Etsy logo, please read:
SarahSays says:
… For items you are already selling with an Etsy mark in the item, yes, you’ll need to get permission. You’ll need to fill out the application (once it’s available) then Etsy will grant permission for certain uses. We will examine each request and determine whether or not to grant permission.
So long as your use complies with Etsy’s policies, this should be a minor hurdle. If you want to make a mass-produced environmentally unfriendly un-Etsylike item, it’s unlikely we’ll grant you permission to use Etsy’s mark…
May 7, 2007 at 5:33 pm · Filed under Copyright / Branding, Site Terms · By The Janitor
[source]
SarahSays says:
I posted this from my other account…
Please note: the following does not constitute legal advice.
There are a number of legal issues that may come into play when dealing with trademarks and copyrighted characters such as Hello Kitty.
First, under the “First Sale Doctrine,” when you buy a copyrighted good, you may re-sell that good without first obtaining permission from the copyright owner. In this case the First Sale Doctrine may only apply to for example, the character bead or character sticker itself; the First Sale Doctrine does not typically apply to a product created out of the licensed character. Therefore, it is unlikely that the First Sale Doctrine will protect a product created out of a licensed character.
Second, under U.S. Copyright Law (many countries offer protection to certain foreign works due to international copyright treaties and conventions), a copyright owner has certain exclusive rights. When you buy a copyrighted good, for example licensed beads or stickers that have a character on them, you are only buying the physical object and not any of these exclusive rights. One exclusive right, the right to create a “Derivative Work,” consists of the idea that only the owner of the copyright has the right to create a transformation of the copyrighted good. When you take a licensed character and create a product, for example a necklace or a bag, you are transforming the good, and most likely creating a Derivative Work. This transforming work may infringe on the copyright owner’s exclusive right to create a Derivative Work.
And lastly, Trademark Law exists to help customers from confusion concerning the origin of a product. For example, if I make and sell a quilt from licensed fabric, a consumer may assume that the quilt is an officially licensed product. That will confuse the customer as to the quilt’s origin.
Licensing of copyrighted and trademarked items is big business. The holder of the trademark/copyright and the company who enters into a contract to use the trademark and/or copyright typically both must abide by specific rules as to for example, quality, use and distribution. If I own a copyright to a character, and I enter into a licensing contract with a tshirt company to use my character to sell tshirts, I want to make sure the tshirts are up to the quality my consumers should expect.
Sarah
EDIT:
In an earlier thread, Rob (etsy Pres) explained why etsy takes down listings when a copyright owner complains:
Rokali says:
This is all clearly outlined in the Copyright Policy link down in the footer of every page here:
http://www.etsy.com/copyright_policy.php
The short of it is, any company that deems they’re being infringed upon by an item here at Etsy sends us a printout of their copyright & the items on Etsy that are infringing (every single one of them). Etsy then has to removed them.
This is part of the DMCA (Digital Millennium Copyright Act). The benefit is that Etsy is not held liable for the listing showing up in the first place. In other words, we’re told to removed them, instead of being sued upfront for infringement.
If you think your items have been removed unjustly, there’s a clear process to follow (outlined in the DMCA doc).
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If the buyer, seller, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the buyer, seller, member or user believes that it has the right to post and such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the buyer, seller, member or user must send a counter-notice containing the following information to the Designated Agent listed below…
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If we don’t follow the rules outlined in the DMCA and fail to remove the offending items, then Etsy itself may be held liable for the infringements.
If you’d like to fight this battle, by all means you can try. Etsy has some very clear rules to follow, and we’re going to follow them.
It might help clarify to read the DMCA Rob mentions, especially Title II which starts from about page 8. Why etsy has its Copyright Policy might make sense if you read especially from page 11 of the DMCA.
Here is Part C of the Copyright Policy from which Rob quoted in his post:
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the buyer, seller, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the buyer, seller, member or user believes that it has the right to post and such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the buyer, seller, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the buyer, seller, member or user;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the buyer, seller, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
4. Buyer’s, seller’s, member’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the buyer’s, seller’s, member’s or user’s address is located, or if the buyer’s, seller’s, member’s or user’s address is located outside the United States, for any judicial district in which Etsy is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Etsy may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the buyer, seller, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice, at Etsy’s discretion.
Please contact Etsy’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
Robert Kalin
Etsy, Inc.
325 Gold Street
6th Floor
Brooklyn, NY 11201
Phone: 718 312 8766
E-mail: abuse@etsy.com
EDIT:
So, what happens to the fees when a listing is taken down?
emilybidwell says:
Our policy is that we don’t give refunds for listings that don’t belong on Etsy, but we are understanding, and may give refunds at our discretion. It really depends on the case. Right now, we are getting the word out, and expect a higher degree of accountability on the part of our business men and women. It takes a lot of time to contact every person who may be listing things on Etsy that don’t belong, so we hope that threads like this will help sellers understand what is allowed.
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April 20, 2007 at 2:25 pm · Filed under Copyright / Branding, Marketing, Site Terms · By The Janitor
Vanessa says:
I’ve been talking with Sarah, who works at Etsy in a lawyerly way, to figure out how to keep track of the use of our Trademark (logo and the name “Etsy”). There’s legal issue that we were unaware of, that Sarah told us about: if we just let anyone use the trademarked stuff without permission and without us keeping track, we could lose the right to our own trandemarked stuff! Which would be bad for all Etsians!
So, we’ve made a simple release form that gives you permission. Obviously, we are psyched to have Etsians promote Etsy and your shops. And we are in no way trying to pull a Cease and Desist thing here. And it’s not even about Etsians making a profit off of selling stuff with the Etsy logo. It’s just about protecting our customers from fraudulent, mean people who might use our logo in bad ways!
Rob wants this to go into effect with the Dos and Don’t on Sunday. At that point we’ll have the form you can download and send in to us. It will be available through the Dos and Don’ts and through the Downloads page of the Team section.
Posted at 3:24 pm, April 19 2007 EST
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