Today we are going to talk about Intellectual Property (IP) and Copyright. So many sellers contact me with listings removed or stores shut down I want to help you understand what is going on and how to avoid problems in the future!
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- What Is Intellectual Property?
- How Long Do Intellectual Property Rights Last?
- Why Do They Defend Their Trademark So Much?
- What Happens When You Violate Copyright?
- But Other People Are Doing It
- Think About WHY You Want To Use Their IP
- Copyright and Trademark
- How Can You Avoid Copyright Problems?
- Using What Is In The Public Domain
- Copyright FAQ
- Intellectual Property And Copyright Wrapup
If you are reading this there is a good chance you have received an email or letter saying that you “violated copyright” or that your listing was taken down or your store was shut because of Intellectual Property issues.
Most of the sellers I know haven't done anything deliberately to get in trouble and don't even understand what they did wrong in the first place!
Today I am going tell you all about Intellectual Property, Copyright and how it can effect you and your shop!
I am a seller myself NOT a lawyer, so if you have any legal questions contact an attorney or barrister. I recommend Jamie at HashtagLegal (not an affiliate link, I just use her myself!)
Last but not least, these are relevant to the United States as I don't know about the rules in other countries!
What Is Intellectual Property?
Intellectual Property is something that a person or company has imagined in their mind and put out into the world … for a simple example think of Walt Disney and his empire.
Disney owns the rights to the Disney characters, many of the Marvel characters and other properties AND Disney is known to be a stanch defender of their Copyrights.
Additional Information: How To Avoid Problems With Disney For Etsy Sellers
But there are lots of other less known, but also IP Copyrights that you may have no idea you are violating… here are just a few that have tripped up people I know:
- “Shabby Chic” was copyrighted by Rachel Ashwell in around 2004 and that copyright is defended vigorously
- You cannot say that you use “velcro“, it is hook and loop fasteners
- In my art world “gelli” plates are trademarked and have a copyright so you can't use those titles or keywords in your blog posts or videos without permission
It does take some creativity to avoid violating trademark or copyright, but it is possible! I love this example from Copper Moon Tshirts that is a Wizard of Oz shirt that will not violate Warner Brothers trademark!
How Long Do Intellectual Property Rights Last?
According to the World Trade Organization:
“The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.”
Why Do They Defend Their Trademark So Much?
Trademark is different from Copyright, but it is good to understand WHY a company might be aggressive about defending their IP.
If a company lets their Trademark become “common use” without defending it, they lose the right altogether.
As it seems I am interested in mostly fastener based IP issues, Zipper had this problem. BF Goodrich trademarked that name, but couldn't defend it because it was in common use already.
Interesting research: 15 Product Trademarks That Have Become Victims Of Genericization
What Happens When You Violate Copyright?
I personally know of a bunch of people who have lost listings or stores because they used the IP of another person or company, here is what a few of them look like…
I was coaching a candle company about marketing and asked them what their best seller was. They happily said it was their superhero candle (and they used the word “Spiderman” in their title and tags AND had a picture of a cute little Spiderman figurine in their listing).
Oh crap! I told them to STOP selling that immediately and instead focus on the cool scents they had developed themselves. Well, they didn't stop and later had their shop shut down for copyright violations.
One of my peeps just contacted me today and said that most of her listings were just taken down because she was selling “Elf on the Shelf” clothing.
Ack! Elf on the Shelf is a trademarked term and can't be used in listings. Unfortunately there really isn't anything she can do, those listings are violating trademark and can't be reinstated.
I get people asking me all the time if I sell my magazine collages, or if they can sell theirs. Sigh, that is a big old, nope!
The photographer who took the pictures of the people or things I use usually holds the copyright and if they don't the magazine has the copyright.
There is a gal who sold a great marketing planner and course
But Other People Are Doing It
Here is the hardest one of all… some people are getting away with selling copyrighted materials right now… sigh.
For example, I did a search this morning for “Mickey Mouse Ears” on Etsy. There were 67,525 results including paid ads.
Now, if I was an Etsy seller who just got a take down copyright notice for my Mickey Mouse ears I would be confused (and pissed!)
There are 67 THOUSAND listings and I can't sell my mouse ears? Nope…rats!
Once Etsy or Ebay or your hosting provider or Shopify or any other big company get a request from the copyright owner that you are violating their copyright, they have to take it down or face financial jeopardy themselves.
It doesn't matter that “everyone is doing it”. If they get a report, then down goes your listing (and if you have too many of these you can lose your whole store!)
Think About WHY You Want To Use Their IP
I know it is frustrating to NOT be able to use keywords, images or designs that would help you sell more!
But if you think about WHY you want to use their IP, it is because of all the work that copyright holder has done to make that term or item popular.
This is a great example of a way that the seller on the left used Beauty and the Beast in a “non disney” way, but the one on the right is directly copying the necklace that was featured in the Beauty and the Beast movie.
The one on the right is a clear violation of the Intellectual Property of the person who designed that necklace, the movie AND Disney's IP.
Copyright and Trademark
Okay, let's talk a wee minute about Copyright and Trademark. Copyright is the ownership of an idea or concept and it is defensible immediately.
Trademark is handled by the government and is a formal process that companies go through to protect their IP.
For example, I have trademarked “Marketing Artfully” and “Artsy Fartsy Life” the names of my websites as service marks with the Patent and Trademark Office. That means that no one can use those terms together and produce something that is in the website space.
That DOES NOT give me the right to those names entirely, for example there is a board game called Artsy Fartsy.
Trademark is all about whether someone selling something would be confusing in the marketplace.
You can do a trademark search on the TESS government site! This is what that search looks like for “Elf on the Shelf”…
The “Classes” categories show what TYPE of products are protected by the Elf Company.
Usually when you get a formal notice that you have to take down your listing it is because they found that you used the trademarked term in your title or description.
How Can You Avoid Copyright Problems?
Okay, say you have had a violation (or even think you might be in violation), here are some things to do…
1. Check the TESS System
The first thing you want to do is pop on over to TESS (Trademark Electronic Search System) and see if there is a trademarked term for what you are selling. If so, stop selling it now.
If you choose to keep selling it, make sure to click on the “Classes” link to see if you really are selling something that is in the EXACT class of a trademarked term. If it is for sure stop selling it now.
2. Check Google
If that is just too intimidating to start with, do an EXACT google search using ” around the search phrase to see if there is a product in the marketplace that has that exact name, and then see if it is a direct competitor to what you are selling.
Here is an exact search for “Artsy Fartsy” on Google:
Just because someone has used the words that you use, it doesn't matter unless someone in the marketplace could become confused.
So I can have an artsy fartsy website AND they can have an artsy fartsy game and we can both have a Trademark on that term!
3. Think About WHY You Are Choosing That Product
If you have a great idea for a product and it is unique, awesome! Take a couple of minutes to check the Trademark database and see if someone else is doing already, and launch.
But if you are choosing a product based on something that is already popular to make sales more easily, then you have a chance of violating their copyright and that is terrible idea.
4. Skating On The Line
I have a friend who sells Outlander (a TV show) products. Now, she doesn't use any pictures from the show or images of the cast, but what she does do is use common phrases from the show.
She can get away with using those terms in her titles and tags because Outlander is a descriptive term for someone living outside a country. The names of the characters are also common names.
You can also use common tropes in a new way, instead of “Mother of Dragons” which has problems with the HBO Game of Thrones franchise, you could make a mama dragon, baby dragon tshirt set.
That said, you couldn't use Game of Thrones in your title or tags so there may be less of a benefit.
Using What Is In The Public Domain
I was just talking with my friend Rebekah the other day and she did not know that the Alice In Wonderland words and pictures are in the public domain.
There are many things that have passed out of copyright and are fair game! According to Belmont.edu, Public Domain is:
If it was an unpublished work and the author died over 70 years ago, it is in the public domain. If was written by an anonymous author over 120 years ago, it is in the public domain.Source
For example, we had an idea for daughter to draw an image for a “Psycho” movie shower curtain… so cute! So I did a search for “is psycho in the public domain” and, BAM! YES! There is a movie card she could use as a template because it was not copyrighted!
I am not saying that it is easy to find popular things that are legal to use, but it is much easier to do this research up front and play by the rules than to have to redo all your products, listings or even losing your store.
I get SO MANY questions about copyright that I thought I would tell you what I know. Again, if you need legal help, contact a lawyer, I am a marketing chick!
Wouldn't Businesses WANT You To Promote Their Product Name?
I had a really hard time understanding this as a marketing person. Wouldn't a company WANT me to use their product and promote it for them? Doesn't it help increase their brand awareness?
So first off, most companies big enough to defend their copyrights have HUGE books of guidelines about how their products can be presented and used. They also sell licensing agreements to their IP for additional income.
They want to keep control of their brand and how it is used, so nope, they don't want anyone else to be out there using it without their permission.
What About the First Sale Doctrine?
Okay, here is a REALLY general overview of First Sale Doctrine… functionally it means that the person who originally buys something has the right to use it anyway they want.
So you can buy a magazine and use those images any way you want. Or you can buy Disney princess fabric and make a costume for your kid.
What you CAN'T do is sell the product you made from that item. Your purchase of the fabric from Joann's is the FIRST SALE, the copyright holder is protected from you selling their IP again, even if you made something from it.
Why Are You Defending The Big Companies?
I KNOW, it seems like I am defending the big companies and not standing up for the little gal who is just trying to make a living.
But remember dear reader, my whole life is based on my IP, those are my business assets.
I would be super sad if someone took my whole website and copied it and said it was their own. I have lost the right to sell a worksheet that I designed myself and that really hurt my income (and made me mad!)
I just don't think it is right to capitalize on someone else's work. I think you should come up with amazing ideas of your own and then market them to people who will love you for you!
Intellectual Property And Copyright Wrapup
Whew, that was A LOT! I know that this can be a super frustrating topic to think about, especially if your best listings got taken down or you see lots of other people getting away with what you just got dinged for, BUT this could be start of your best work!
Don't forget, then you will be protected by the copyright laws and no one can duplicate your great work!