If you’re an Etsy seller you’ve probably heard of listings getting pulled from Etsy or entire shops getting shut down because of intellectual property infringement. It’s a scary proposition for sure. But what exactly does that mean? What CAN you sell and what is absolutely off limits??
First things first. Let’s define “Copyright” vs “Trademark” according to Google:
“the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same”
“a symbol, word, or words legally registered or established by use as representing a company or product”
Here’s the abbreviated version of this whole blog post – be original and don’t use someone else’s products to try to sell your own. This includes (among other things) using another company’s name, logo, product name, or a visual representation of one these things. In most cases you can purchase the license to sell certain copyrighted products, however you have to contact each company to apply and pay the appropriate fee. In many cases, the fees are cost prohibitive.
Remember – just because you purchased a licensed item from a licensed seller does NOT mean that the license transfers to YOU. In most cases, you can use the item for personal use but you cannot profit from it.
Common issues on Etsy include products related to the following:
- John Deere (even just using a green tractor in it’s likeness can be an issue)
- Military emblems, names, logos
- Peeps (even just a bunny shape that resembles a Peep)
- anything Disney
- NFL teams (this includes team names, logos, popular “Rallying Cries” just as “Roll Tide”, etc)
- College teams
- Elf on the Shelf
- Dr. Seuss (even using the likeness of the Grinch and calling it “the green monster” is not okay)
- The terms “Shabby Chic” and “Boy-Mom”
Let me tell you my own experience with intellectual property infringements on Etsy. My first was in 2014 when I was first starting out. I made a wreath with a generic Elf sitting in the middle. In my tags I used “Elf on The Shelf”. I didn’t know better at that point! The company found it and deactivated my listing.
Then in 2017 I started making a few college football team wreaths. I attended the University of Virginia waaaaaaay back in 1997-2000 (Yes I graduated I just did it in 3 years instead of 4 lol) and lots of people in my area are fans of University of Virginia and Virginia Tech. I made wreaths with both of the college teams and listed them in my shop. Well, even after attending UVA and allllll the money we spent with them that didn’t give me the right to sell a product with their name on it. So it was removed.
At that point no one from Virginia Tech had found me yet but I realized the error of my ways and pulled those as well. Since I was selling a lot more Virginia Tech wreaths than UVA wreaths, I contacted the licensing department at Virginia Tech and inquired about a license. I had to submit photos of my finished products and a description of each. They approved some designs but not others because of their logo guidelines. In fact, the representative from the licensing department told me that one sign that I had purchased from a well-known online wholesaler was completely against their guidelines and they would be contacting that company to discontinue their use. Moral of that story is – just because you purchase something from someone you think is “reputable” doesn’t mean it is permitted for use by the copyright holder. I paid a $125 annual fee, received special “licensing tags” that I could attach to my items to prove that I held the license, and I was good to go. After a few years I gave up the license because I wasn’t selling enough to cover the annual fee.
All companies and teams will have a similar “licensing department” that you can contact to inquire about a license but you will have to contact each separately. There is not ONE license that covers all College teams or all NFL teams. And for the larger companies, the fees are likely very high and not worth it for smaller sellers.
“But there are tons and tons of Disney items on Etsy already!”
Yep. And it will continue because Etsy does not have the manpower to find them all. Thousands of listings are being uploaded each day. In fact, it has been my experience that Etsy isn’t even the ones that “find” the issues – usually they are only aware of an intellectual property infringement if they are notified by another seller or if they are notified by the company that holds the copyright or trademark. Those listings may last a day or they may last a year, who knows. But eventually they will be found and it’s not worth the risk.
“What happens when Etsy finds an infringing listing?”
Etsy will immediately deactivate your listing and send you a notice. You can then counter the claim or accept the determination.
“How many intellectual property infringement cases before your shop gets shut down?”
It’s not entirely clear and it appears to be on a case by case basis as to how many issues will result in Etsy closing a shop for good. It is likely not just your first case, however. I will tell you that I have had 2 products removed over the 5 years I’ve owned my shop.
“Where can I find out if something is trademarked or copyrighted?”
Go to the USPTO.Gov website and search the TESS database.
“Another shop contacted me and says they own the copyright to my material. What do I do?”
Ask for their documentation and consult a lawyer if need be. Some sellers might not be exactly truthful when they send messages like this so you want to double check the status of the copyright.
“Can I say ‘Inspired-By Disney’ or ‘Disney-Style’ for example?”
NO! Using words or phrases like that in your listings does not negate the fact that you are infringing.
“But what about the First Sale Doctrine?”
Oy. I hear this rebuttal allll the time. The truth is the First Sale Doctrine is not a good solid defense. And it only protect your right to resell the item in its original state – meaning you can’t reproduce the item or take the item and make something else out of it or with it because then it is altered.
Steamboat Willie 2024
Want to know something else really interesting though?? In 2024 Mickey Mouse will enter the public domain. Yep you read that right. BUT, it is only for the “old” version of Mickey like this one:
So the “new” Mickey Mouse would still be under copyright protection. Plus, while copyrights expire, trademarks don’t. And I’m fairly sure Disney is working on figuring out how to retain legal control of this very famous mouse. So don’t get your hopes up quite yet.
All in all, remember that Etsy has told us “Intellectual property infringement issues can hurt your search ranking”. You have worked hard to create your shop, don’t let a mistake like this ruin it all. If/when Etsy shuts down a shop it cannot be reopened and there is little to no negotiation. You can’t even open up another shop because Etsy tracks IP addresses, names, and bank information.
If you’ve gotten to the end of this blog post or you just skimmed to get here this is the gist – Don’t do it. 🙂 Don’t copy someone else’s work, don’t use someone else’s name or product to try to attract customers, do your research and when in question – consult a lawyer.
You may have also seen this picture circulating around social media recently. Even Walmart is cracking down! (original photo credit unknown)
***Disclaimer: I am not a lawyer and you should consult a lawyer should you have any questions about your products and whether or not they infringe on any copyrights or trademarks.