Over the past forty-eight hours, this website has generated over 22K views. There have been a lot of questions, a lot of excitement, and a lot of anger all over an article I wrote to predominantly reassure, warn, and encourage online sellers. Whether you love them or hate them, you can’t deny that Etsy is a force to be reckoned with and the bottom line is that when you sell on their platform, you are playing by their rules.
Let me summarize the last article before we get too far into this post. On Wednesday November 8th, 2016, I published the following:
There were several rumors running around that Etsy was cracking down on copyright and trademark infringement and shutting shops down more than usual. I cautioned readers that even if this was the case, it should NOT be a surprise because if you are selling products with illegally obtained content you are, in fact, breaking the law. I compiled a list of resources including the Etsy TOS on the handmade, wholesale, and manufacturing policies as well as the two main databases for researching copyright and trademark applications.
I clicked publish.
The internet (well, at least my internet) exploded.
People from both sides of the court went off in unexpected ways. Some cheered the possibility of Etsy cutting down on infringement while others shared their fears that it wasn’t fair. I’m not here to judge you. I’m here to inform. I wanted to use this follow up article as a chance to address some of the questions that came across in the comments.
I bought a Disney digital file (or Mickey Mouse ears, etc.) and am altering it! Can’t I use it?
Do you have a written licensing agreement from Disney? If you do not, I wouldn’t sell it. Please keep in mind I am not a lawyer. I am a copywriter (not copyRIGHTER) and I am sharing with you my professional opinion. If you are in doubt, pay for a lawyer.
What about the First Sale Doctrine?
The First Sale Doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner.
Let’s get one thing straight: Etsy is a third party selling platform and they get to make, and enforce, their own rules. They will still remove copyrighted and trademarked content from their website as they see fit because it is their website. Sure, you might be able to defend the sale of licensed fabric items against the parent company in a court but that means you need to hire a lawyer and your items will likely be placed in jeopardy during this process. I don’t have the money to go up against Disney. Do you? If you really want to risk selling items under the First Sale Doctrine, then you are free to do so but from my perspective I just don’t recommend taking that risk.
What about using quotes from a book, song, or TV show?
If the book, song, or other form of art is not public domain then you cannot use it without a licensing agreement.
This goes for Rudolph the Red-Nosed Reindeer, anything from The Beatles, and The Gilmore Girls.
What is the story is public domain (like Peter Pan) but Disney made a movie from it? Can I still use it?
You can still use public domain material provided it does not take content from the licensed version. For example, you can use quotes from the original Peter Pan screenplay but you cannot make an image of Tinkerbell that mimics the Disney incarnation.
How do I know if something is copyrighted or trademarked?
You do the legwork. Part of being a business owner means doing long, boring research. You can reference the previous article to get the direct links to the copyright and trademark databases.
So what does all of this mean? It means that the wild world of copyrights, trademarks, and Etsy is not something to be taken lightly. Your need to do research, you need to be aware, and you need to decide as a business owner what risks you are willing to take. Do I think you should use content you don’t own?
That is my opinion. That is my suggestion for you. It is based in fact and experience and it is my professional recommendation. Do not steal content. Create content. Create beautiful art and create your own brand, following, and excitement. You can do it. I’ve seen you do it.
In light of the response from this week, I actually want to do two things for all of my followers. I first want to offer you a discount code to use on any of my services for 10% off. I want to celebrate original art and thank all artists, crafters, and business owners that do work their tails off with original concepts:
I also want to offer you something a little bigger.
I want to offer you FREE shop reviews. Do you think you might have something infringing? Let me take a look at your shop. I’ll go through it and tell you if anything is sticking out and could get you in trouble.
If you want a free shop review though, you do need to join my VIP Facebook group COPYWRITING FOR CREATIVES .
Let’s keep this discussion going.