Part 2: Given the rampant infringement on sites like Etsy, what can an artist do to minimize the potential for infringement? Unfortunately, there is no magic bullet ,but there are a few steps that may make some difference.
- The first step is to register your works with the Copyright Office. There are a host of advantages to registration, which I have discussed in one of my older posts, here.
- Some artists use watermarks over their images as a means of protection. That will work however, in my opinion, that is a bit of an overkill. While it may keep someone from copying the work, it does so by making the work unappealing which defeats the purpose of posting an artistic work in the first place. Artists generally want their images to be seen in the best light possible and would not want to impede the viewer from seeing the image at its best. What is helpful, however, is adding a © copyright symbol and the artist’s name to the corner of the image. While this is easy to crop out and will not act as a deterrent, it will allow the artist to claim “circumvention” as per the Digital Millennium Copyright Act (DMCA) in any lawsuit that may occur. Circumvention is too large a topic to be discussed in detail here, but the basic point is that removing the copyright line shows a willful intent to subvert the copyright protections, which can lead increased penalties and awards.
- If you find an infringing work on Etsy, or any other site, and then ask for it to be removed, it is critically important to read the take down procedures before sending a request. The procedure must be followed to the letter. The DMCA’s “Safe Harbor” provision protects the online service provider, such as Etsy, from copyright infringement claims only if the provider adheres to certain rules. One of those rules is to follow the appropriate procedures for take down notices and, those procedures must be prominently posted on the service providers website. If a request is made for a take down, and the requester does not follow the procedures as posted, the service provider is not required to remove the potentially infringing work nor respond to the request. Conversely, if the service provider does not follow their posted procedures, then the provider does not receive the safe harbor and may be liable in a lawsuit. It would certainly be better to sue Etsy, given their monetary worth, than one of their small stores. But without following the procedures yourself, that won’t happen. Etsy’s procedures are here for future reference.
- Most infringement for sites like Etsy go unnoticed because the artist never runs across the infringing material. So how would an artist ever know that there is an infringer out there unless they, or one of their friends, happens to stumble upon it? Well, there is a tool to help discover infringing material. It is called src-img and it free. This bookmarklet uses Google’s image search as its platform. Google’s image search technology doesn’t rely on file names or metadata hidden in the photo, but actually looks for similar images based on the physical image itself. So, if an artist’s work was on a pillow, and the infringing company took a picture of that pillow for their Etsy store, the image would still be located via the search. I encourage any artists to take a look at this tool and use it on a regular basis. For more information on this, see my article here.
- Finally, there are countless posts on the web from people who have contacted Etsy over infringement and have not heard anything nor seen their works removed from the site. If there is no action after submitting a proper takedown procedure, the appropriate next step is to contact a copyright attorney. As well, regardless of whether the work has been removed due to a take down request, there may still be a cause of action for which that artist can receive monetary awards. Very often, the artists is entitled to the money they would have charged in licensing the work, all the profit the infringer received from the sales of their work, and fines imposed by the DMCA which statutorily can be up to $150,000 per infringement. It pays to contact a copyright attorney to discuss your options.
As you may have realized, there is no concrete way to protect artistic works other than to not make them available on the internet, which in our internet based economy, would be almost impossible. The system breeds infringers; that won’t change but these tips can help. Also, for those artists concerned with the costs of suing Etsy or Etsy Store Owners, most attorney’s should be willing to take these cases on a contingency basis, which mean that the artist only pays the hard costs and the attorneys only get paid if they win. So it doesn’t hurt to give an attorney a call.