Copyright Online Piracy

Etsy: A Home for Copyright Infringement

Etsy

Part 1: Etsy, the online e-commerce website focusing on handmade goods, crafts and vintage items, has continually come under fire due to incessant copyright infringement.  Here is a typical scenario: An artist is surfing through Etsy looking for a Mother’s Day gift, when on the screen they are confronted with their artistic work adorning a t-shirt, a hat or a nice fluffy pillow. Outraged, they contact Etsy and ask for removal of the item.  The request is ignored and the material remains on the site, leaving the artist feeling helpless and frustrated. Unfortunately, this story is not rare and while Etsy has become more aggressive in the past couple of years, the problem is far from resolved.

There are three villains in this story; Etsy, Etsy Store Owners, and China.  Let’s start with China. When most Americans think of copyright infringement or knock-off items, they think China. China has been very laissez faire in its protection of international copyrights.  Factories that produce large amounts of goods are more than willing to circumvent licensing due to the large fees that would entail. Consider a t-shirt factory making hundreds of t-shirts with individual designs. The the cost of licensing fees, the time necessary for developing those agreements, accounting requirements for payment to the licensees, amongst other monetary consideration, provides a real incentive for these factories to avoid the whole licensing process.  Combine that with the lack of copyright enforcement by the Chinese government, and a there becomes very little reason for a Chinese manufacturer to pursue licensing agreements with U.S. artists. Also, the large amount of debt that China holds in U.S. Treasuries, limits the aggressive posture that the U.S. is willing to take on this issue.Image representing Etsy as depicted in CrunchBase

The second villain is Etsy itself.  At Etsy, anyone can make a store.  There is little preventative due diligence on Etsy’s part. A person can just sign up, give the store a name and they are now a purveyor of goods. Creating the shop is free although there is a small charge for a listing and each listing will have a shelf life of about four months or until a product is sold.  Etsy takes 3.5% of each sale.  Because it does not own or distribute the goods itself, Etsy is considered a media distributor, like iTunes, and is bound by the Digital Millennium Copyright Act (DMCA). As such, they have the benefit of the “Safe Harbor” provision which means that if they implement the procedures dictated by the DMCA, the company cannot be sued themselves for copyright infringement. Of course, they have to follow those procedures, which according to many in the blogosphere, is not what is happening. Regardless, that safe harbor gives Etsy little reason to be proactive in stopping in infringement but only reactive as per the DMCA requirements. And if Etsy isn’t following those procedures as many suggest, then the problem will only exacerbated.

 The third player in this game of infringement is the Etsy Store Owners. While many stores produce their own goods from their own designs, a number of stores merely buy their goods from China using online wholesale sites like Alibaba.  Alibaba, a Yahoo company, is one of the most popular wholesale sites on the web, accounting for  $160 billion in revenue.  Only in the past month has Alibaba announced a commitment to combating online piracy.  How that plays out and how long it will take to see any impact remains to be seen.  In the meantime, store owners purchase goods without the due diligence required to ensure they are not purchasing infringing goods. Either these store owners assume anything the buy from China is properly licensed or the amazing prices convince them to look the other way.

Given the players in this game, it is not surprising that Etsy is rife with infringing material.  So what can artists do to protect themselves from Etsy and other sites like it?  I’ll talk about that in part 2.

  

 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • I have filed a dmca notice three times for the same seller relisting the same image every few months. It goes beyond copyright infringement as this seller is claiming to sell a damien hirst lithograph with a fake signature and certificate of authenticity.

    • Do you have the rights to the image on the litho or signature?

      If not, while your actions may be noble, you have no real standing in terms of the DMCA.

      If you have rights to the image on the litho, given that it’s already been printed, your beef is with the printer, as the first sale doctrine would give them the right to sell it freely.

      If you have the rights to the signature, then you have a Trademark infringement claim.

      Otherwise, the issue is one of forgery, which isn’t a C or TM matter (and thus not applicable to the DMCA).

    • This happens all the time. eBay is full of fake Warhols and other art. Generally, when you read the description they will have some disclaimer like “is declared as a copy, in the manner of the author, reproduction, in accordance with the rules of eBay. ” For those that do not, they should be stopped, but for most sites, there is no way to really monitor and make that determination. DMCA is the only way, and then these people just make new accounts. You would need some good Digital Fingerprinting software to flag these abuses and most companies aren’t going to go down that road fo a few bad apples.

  • Tbh I think it’s petty.

    I’ve seen my art been sold on shirts/dresses etc before without my permission but I didn’t stop them.

    It did annoy me because they didn’t ask my permission and tbh I was jealous they could make money from my art – they were charging like £100+ per shirt.

    But do I sell shirts? Nope. I sell nail art. Once I had thought about it, I realised I should be honored that they liked my art so much to use it. It took no money away from me or my business so whatever.

    I think people need to decrease their ego and let people live.

  • I’m searching for some help. I am so exhausted of seeing my photographs that i have taken everywhere, My shop on Etsy has been opened since Oct 2008. Since then my designs have been reproduced. I know i can’t argue that as i do not have copyrights on them. But what i really am more upset about is the use of my personal photos. Photos of my neices, daughter, family members, friends…all posing for photos with my jewelry and headpieces on. I get that these companies in China are taking the design but are they allowed to use my photos too? Alibaba, Aliexpress, sellers on Ebay, Etsy, and even a seller on Groupon have used my personal images.

    This is where i feel like something needs to be done. There is a manufacturer in China that is using my image on their Hang tags for all their headpieces. My friend saw it downtown la and brought it to me. I went to the store and it;s everywhere!

    Does anyone have any clue what i should do?

    • Hi,
      I just wanted to inform you that your art is considered intellectual copyright. As a result your art is protected on creation and as a result you own full copyright unless you marked it otherwise.

  • As frustrating as the flagrant copyright infringement on Etsy is, it is even worse because it compounds the deterioration of what Etsy was and still claims to be.

    If Etsy actually removed all of the made-in-China and blatent copyright infringement, the marketplace could blossom again into the handmade and unique mecca it once was.

  • I have had a run in with Etsy and its loose interpretation of the DMCA. A lot of people play internet police and report things they suspect of copyright infringement. This has prompted Etsy to have one of their charming employees to right an article addressing the issue and legalities. The article is well written, polite, and informative about how they only handle reports from the actual owner of the infringed works.
    Legally, only the copyright owner can file a complaint. Meanwhile, Etsy is making a ton of profit off of infringed Disney, Marvel, and Warner Bros copyrights that fly under the radar. As an artist, I refuse to use Etsy as an outlet. For the simple fact that if a large corporation can’t be protected from obvious infringement, what hope would an individual have.
    Could it be so difficult for Etsy to implement a Flagging option like craigslist? When enough users flag a suspect item or store, Etsy drops in and requests proof of license. And/Or.. Should they request proof of license when a user uploads an item and adds a search tag like Disney, or Wolverine?
    These are just some ideas. Until Etsy offers better protection I will not be supporting their site.

    • I actually think that is a good idea but Etsy has no incentive to turn people away. Although I would bet that most of the Marvel and big ticket items are licensed. Etsy has been entering into major license agreements for big names. Otherwise those companies would have issued takedowns a while ago. The real issues come from people who are smaller and unrecognized. They don’t have the resources for finding infringing items like a large company would.

  • Indeed a serious problem that will take many years‚ money and suffering from many parts. I am trying to sell original stuff in Etsy at the moment and many times i’ve come across with this thought‚ and my best solution in this case‚ for the artist to stand up for his work‚ is to comment in those articles where copyright has been inflicted‚ or in all articles from that same shop‚ to advise future customers that this shop is a negligent place to buy‚ or at least make it really clear. I’d probably say that would stop many people buying those articles‚ and would put that inflicting person in its place.

    btw.. i recommend this short documentary about how creative processes are quite close to copying acts…. https://www.youtube.com/watch?v=coGpmA4saEk

    • If that happens, then give me a call and we can strategize as to what action you can take. But, one way to help your situation, is to register your work with the copyright office. If you do that before any infringement, then you will be entitled to statutory damages and legal fees; up to $30,000 per infringement. If it is intentional, like it keeps happening despite asking for the infringement to stop, you can receive up to $150,000.

        • Yes, it would. The only issue is usually how much money the seller has available. Let’s say they are selling through a company that makes very little money, then they could just close the company. Getting at their personal assets is difficult. If you are having a specific issue, let me know. we can talk about it.

      • Steve,

        I am an artist fighting Alibaba/Aliexpress for their failure to assist me with the removal of sellers selling copies of my art illegally. There are now over 35 stores selling illegal copies of my works. I have a documented case of what has been happening as far as filing reports exactly as they require, etc and still getting nowhere. Very thankfully I have a contact at the U.S. embassy in China who has been approaching the VP of IP Theft at Alibaba.

        Do you have any knowledge of artists fighting Alibaba/Aliexpress in particular with following their rules and regulations for reporting IP theft and still not getting any assistance?

        Michel Keck
        phone: 812-859-4191

        • Very sorry for the long delay in this reply. I missed it somehow. But Alibaba is notorious for this and there is very little that can be done. Even if Alibaba were to honor your requests, new ones would just pop up. There is no law that would proactively keep the items off the site. You would have to continuously make takedown requests. And as they sell them to US companies, you would have to make DMCA takedown requests. One point, though, the companies, like Etsy, are exempt from being sued via the DMCA, but only if they actually have registered as such. Just following the DMCA is not enough. But most will just remove each one if you request it. You might want to try and register these works with ImageRights.com, since they will at least scour the web for the images and at least notify you of any violations, and they may be able to help you with the legal aspects.

  • Actually – there is another villain – The Etsy Search ads. The laws may limit their liability from enabling copyright and trademark infringements; but how about the pay-per-click search ads they are running?

    Take a look at this link – and tell me — does Etsy.com have the right to charge users for the use of “NFL” or “Chanel” or “Christian Dior” ??

    My guess is they don’t. however etsy has made millions in dollars in revenues with their search ads and the list of search ad keywords includes dozens of trademarked words.

    so in one hand – they can shut down the shops who are violating trademarks but on the other hand – they are making a lot of money by selling the words to its own users.

    Here’s the link and see for yourself. https://www.etsy.com/search-ads/keywords#list-d

    Perhaps these companies need to be made aware that for every 1,000 impressions using the word “NFL” in their search ads – they have to pay etsy revenues for it. Or “Disney” – or “Firefly” ??

  • I have just looked on Etsy, hoping to find an interesting HANDMADE iPhone cover for a friend. Even under the ‘handmade’ section, it is full of Chanel/YSL knock-offs. Have given up trying to find something handmade on their site.

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