Etsy Copyright Infringement

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Etsy Copyright Infringement

American consumers are increasingly turning to digital marketplaces like Etsy to make purchases, and this has contributed to an escalating number of Etsy copyright infringement claims.  Since the online platform allows users to sell vintage and handcrafted items, this form of copyright infringment is common on the site. Because of this, copyright owners must be especially vigilant.

Unfortunately, the ease in which an Etsy account can be established makes it simple for infringers to violate rights. Additionally, dishonest individuals have discovered they can hinder their competition by submitting false Etsy copyright infringement notices.

Copyright Infringement on Etsy

Etsy has exploded in popularity since its inception. With over 2 million sellers on the platform and 60 million items on the marketplace, it can be difficult for copyright owners to identify and respond to every instance of copyright infringement on Etsy.

In its user agreement, the site states that it is not liable for instances of infringement. This means each individual seller is responsible for the items they post and the branding used in their shop. While copyright litigation is an option when you discover infringing materials, a copyright cease and desist letter is a typical first step.

Copyright protects a host of creations you may offer on Etsy:

  • Original photographs.
  • Custom paintings.
  • Unique sculptures.
  • Books and novels.
  • Reproductions of your listing’s verbiage.
  • Poetry.
  • Crafts or any artistic work.

When people think of copyright infringement, they typically envision literary works. This is understandable since almost half of all copyright registrations fall into this category. Only about 16 percent covered visual artistry. On Etsy, this may be the biggest concern for creators on the website. Any of the following instances are likely violations of your visual copyright:

  • T-shirts featuring photographs you’ve taken.
  • Reprints of digital art created by you.
  • Photographs of sculptures or figures you’ve crafted.
  • Postcards featuring your original artworks.
  • Framed copies of your poetry.

The list of potential Etsy copyright infringements doesn’t end here. Even by simply copying and pasting your listing information another Etsy user may be committing copyright infringement. Registration with the U.S. Copyright Office isn’t mandatory to claim rights, so this shouldn’t dissuade you from responding.

The Etsy platform offers an opportunity for users to respond to copyright violation claims. Submitting a report to Etsy is done under the Digital Millennium Copyright Act (DMCA), and it almost always results in a page or listing being removed. Fortunately, a response can be filed under the DMCA to restore a product listing or store.  Prior to taking either action you should hire a copyright attorney.

Cease and Desist Letter

When a copyright has been infringed regardless of where, the typical first step is a copyright cease and desist letter.  Cease and desist letters provide notice to infringing parties that their activities are unauthorized. This is a very effective tactic and is partially credited with keeping more than 97 percent of disputes out of the court system. They can also serve as evidence that an infringer continued their activities knowing they were in violation of a copyright.

This ensures that violators can’t later claim that their actions were inadvertent. Not only does this give you a stronger case if copyright litigation is necessary, but it can also increase financial compensation. The maximum court award per infringement increases from $30,000 to $150,000 if it’s proven to be willful.  The copyright must be registered for such awards to be available.

Reporting Copyright Infringement on Etsy

Online marketplaces avoid potential liability by simplifying the report process. This is why reporting copyright infringement on Etsy is as simple as visiting their intellectual property page and following their wizard instructions.

While Etsy states that they’ll refuse notices that appear to be fraudulent, their intellectual property policy states they will remove material cited for infringement when provided with notice.  As long as the report is filled out completely, it’s typically considered “proper notice.”

On the final page of your Etsy copyright infringement report, you are stating under oath that your submission is being made in good faith. Attempts to wrongfully hinder competition or otherwise negatively affect a seller will expose you to legal claims. This can result in financial and punitive penalties.  As such, we highly recommend that you have a copyright lawyer handle infringement issues for you.

Responding to Etsy Copyright Notice

Fortunately, there are ways to overcome false reports of Etsy copyright infringement.  When a user is reported for copyright infringement, Etsy will remove the listing or store in question and notify the seller via email. Since the report constitutes a DMCA removal, the seller will have an opportunity to file a counter notice. The initial email sent regarding the listing’s deletion will include a link to complete this process.

Sending a DMCA response to a takedown notice begins a legal process, and the initial complainant will either have to file a lawsuit or allow the listing to be restored. This leads many sellers to start by contacting the claimant with a cease and desist letter.

There are several reasons a report may have been submitted:

  • Inexperienced users: Someone could have made a good faith report even in the absence of actual infringement. This is common with inexperienced copyright owners and can often be remedied quickly.
  • Immoral competitors: Some individuals abuse the Etsy copyright infringement report tool in an effort to harm their competition. If they can have your store removed from the platform, they’ll no doubt garner a larger market share.
  • Irate customers: Etsy users who feel slighted by their experience with a seller have been known to submit false DMCA notices.

In the latter two situations, you’ll likely need to have a copyright attorney submit a counter notice.  If we get involved we will demand that the complainant email legal@etsy.com and withdraw their report. This will result in the restoration of your listing and the removal of any related negative reports to your account.

Of all sellers on Etsy, 97 percent run home-based shops. This leads some parties to believe that their competitors won’t have the resources to respond to false claims of infringement.  In cases of false Etsy copyright infringement reports, this counter notice may be enough to settle the matter. The complainant has only 10 days to respond, and they must submit proof that they’re seeking a court order. This is unlikely to occur in cases where someone knowingly filed a false complaint. In the absence of a response, your listing will be restored.

How to Avoid Copyright Infringement on Etsy

Repeated issues with infringement can cause your account to be deleted. This can result in the loss of a significant income source, and the platform will remove any new account if you’re caught creating one. This makes it imperative that you abide by the following rules of how to avoid copyright infringement on Etsy:

  • Don’t post items that feature other creators’ works.
  • Contact creators and request permission before selling related items.
  • Review the ‘Legal’ section of the Etsy Seller Handbook.
  • Tread lightly when citing fair use as justification (it’s typically better to collaborate with the artist).
  • Review Etsy’s Intellectual Property policy.

These simple steps can help you avoid potential issues on this growing platform. While countless instances of Etsy copyright infringement go unreported, it can turn very costly if an intellectual property owner catches you in the act.

Copyright Litigation on Etsy

If someone submits a DMCA counter notice against you, you may need to file a copyright lawsuit. You also retain the right to defend your copyright in court even if an offending listing is permanently removed. If you choose to go this route, though, you’ll need to federally register your copyright. Unregistered works don’t enjoy full legal protections.

When you receive a counter notice, it’s imperative that you respond immediately. Failing to do so will allow the infringer to have their listing reinstated. Additionally, they’ll assume they can infringe your works in the future with no consequences.  Consider the following before choosing to go to court:

  • Was infringement blatant and willful?
  • Has infringement ceased entirely?
  • Did you experience significant profit loss?
  • Is going to court worth it? Consider their potential profits against the cost of litigation.
  • Did you send a cease and desist letter?

These considerations can help you decide whether litigation is in your best interest.  In situations where the infringement is ongoing or the seller disputes your claim of copyright, going to court may be the only option.

Contact Us

If you are involved in an Etsy copyright infringement and need assistance, please contact us today.

 

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