How to Avoid Etsy Copyright Infringement (is Disney & fan art allowed?)

When it comes to Etsy copyright infringement, and what can and cannot be legally sold, a lot of Etsy sellers are going by what other Etsy shops are selling. They figure; that person is selling a Disney-themed product, so it must be okay for me to sell one too.

The problem with those guidelines is that there are thousands of products listed on online marketplaces that are breaking copyright laws. And saying you thought it was okay because someone else was doing it won’t protect you from a potential lawsuit.

>> Check out 7 Essential Things To Do Before Opening an Etsy Shop (& 5 to ignore)

In most cases, someone selling a Disney-themed product, video game-themed product, or a product using another company’s logo, design, etc. is copyright infringement.

There are many Etsy sellers breaking copyright laws. Just because their copyright-infringing listings are still on the Etsy marketplace and their Etsy shop hasn’t been shut down, doesn’t mean they aren’t breaking copyright laws. It more likely means they haven’t been caught yet.

Let’s break down intellectual property laws and look at examples of copyright laws that are commonly broken on Etsy.

 

 

Disclaimer: I’m not a lawyer by profession and nothing in this article should be construed as legal advice. Although I strive to provide accurate general information, the information presented here is not a substitute for any kind of professional advice or free from errors, and you should not rely solely on this information. Always consult a professional in the area for your particular needs and circumstances prior to making any professional, business, legal, and financial or tax-related decisions. This information is also not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. I am not liable or responsible for any damages resulting from or related to your use of this information.

 

Do you have to worry about copyright infringement on Etsy?

Yes, as an Etsy seller, you must be knowledgeable about copyright infringement and follow the laws. Etsy takes copyright violations seriously and Etsy sellers must follow the rules or risk having their shop shut down, or worse, being sued by the intellectual property owner.

Etsy does not check every listing for copyright infringement; it is up to each business owner to understand intellectual property laws and follow them.

In most cases, an Etsy seller will get caught for copyright infringement due to another Etsy shop owner or a copyright holder reporting them to Etsy.

A big company, such as Disney, will go after small businesses (and has done so) for the unauthorized use of their intellectual property.

You can find Etsy’s intellectual property policy here.

 

What is copyright?

Copyright protects original works of authorship, such as art, poems, books, songs, etc. Copyright does not extend to any idea, system, method, device, name, or title. Creative works must also be fixed in a tangible form to be copyrighted. For example, you cannot copyright something you’ve said unless you fix it in a tangible medium by writing it down or recording it.

 

What is copyright infringement and trademark infringement?

Infringement occurs when intellectual property is used without permission from the copyright or trademark owner and in a way that may cause confusion or deception.

If one of your products infringes upon another’s intellectual property, you may be forced to stop using the mark, stop selling the product and/or pay damages, the plaintiffs’ attorney fees, or for the licensing agreement you would have needed to legally sell the infringing products (which is usually expensive).

“Fair use” and “public domain” may allow you to use certain creative works.

For example, if you’re parodying original work, transforming original work by adding new expression or meaning, using creative materials with expired copyrights or that haven’t been fixed in a tangible form (e.g. it’s spoken but not written or recorded), you may be able to use it. But it’s not always straightforward so be sure you fully understand fair use and public domain before using another’s creative work.

Companies, big and small, may also infringe on your intellectual property by using your creative works without permission or compensation. In the US, you’re not able to file a copyright infringement lawsuit unless your copyright is registered. You’re also not eligible to receive statutory damages or have your legal costs and attorney fees covered if your copyright is unregistered.

Intellectual property laws are complex. If you have any questions, it’s best to get in contact with an intellectual property lawyer.

 

What is public domain?

Public domain refers to creative works that are no longer copyrighted and can be used without obtaining permission from the copyright owner, or paying them licensing fees. Works may be in the public domain if they were created before copyright existed, or if the copyright on a creative work has expired, been forfeited, or waived.

 

What is fair use?

Fair use is when you’re using copyrighted material for “transformative” purposes; creating a parody of copyright work, commenting on it, or criticizing it. Fair use is a complicated subject. If you’re planning to use copyrighted work under fair use, it’s best to consult a lawyer to ensure it’s safe to do so.

 

How to avoid copyright infringement on Etsy

The best way to avoid copyright infringement on Etsy is to create original designs that don’t incorporate someone else’s creative work. If you’re relying on someone else’s logo, image, character, etc. to create your work, chances are pretty good you’re committing intellectual property infringement.

If you’re trying to wrap your head around what is and isn’t considered copyright infringement, here’s a simple way to look at it: imagine if the tables were turned.

You may think it’s okay to use Disney’s copyrighted material to sell your products because Disney is a billion-dollar company. Why do they care if a small Etsy shop is using their image?

But imagine Disney took one of your drawings and used it in a movie or on products they sell. Would that feel fair?

It doesn’t matter how big or small a business is; copyright laws apply to all.

If you wouldn’t want another company to do to you what you’re doing to them, it’s a pretty good indication that you’re committing copyright infringement.

But let’s look at some specific examples and general guidelines for how to avoid copyright infringement on Etsy.

These examples do not cover fair use and public domain material.

 

1 – Don’t use copyrighted logos

Don’t incorporate a team or company logos into your work. This means handmade items that incorporate a Disney logo, LA Lakers logo, a Starbucks logo, etc. or something that closely resembles them, are infringing on intellectual property rights.

Imagine you paid thousands of dollars to have your logo designed and thousands more to build a strong brand. When people see your logo, they associate it with your company. People pay a lot of money to buy a product with your logo on it.

Now imagine another company copies your logo and prints it on a variety of apparel goods. Not only does it cause brand confusion, as many consumers believe they are buying one of your products when they purchase from this other company. But it also takes money out of your pocket. When someone’s looking to buy a hat with your logo on it, you should get that sale. But instead, the shopper finds the hat on Etsy first, and the sale goes to the company that has copied your work.

That would be frustrating for you, and it’s also intellectual property infringement.

 

2 – Don’t use copyrighted characters

Using characters from movies, video games, TV shows, etc. anywhere in your work is copyright infringement. You did not come up with the design for a character, or spend millions of dollars to make the character so well-known that people want to pay for products that incorporate the character. So you should not be able to profit from the use of that character.

Selling drawings of celebrities, paintings of Disney cartoon characters, and stuffed dolls that look like a copyrighted character would all be considered copyright infringement.

 

3 – Don’t use copyrighted fabric

Many fabric stores sell fabric with copyrighted logos, characters, and even trademarked words printed on them. It’s likely you’ll find a “not for commercial use” or “for individual use only” label on this type of fabric. This means you’ll be committing copyright infringement if you make products to sell using the material.

Most likely, the fabric manufacturer has obtained a licensing agreement from the copyright holder (that may be Disney, Lionsgate, NBA, etc.), which allows them to legally make the material that incorporates the intellectual property. That licensing agreement does not transfer to you.

When you buy that material at the fabric store, it’s being sold to you for personal use, not commercial use. This means you have a legal right to use that fabric to make an item for yourself, but not to sell that item.

For example, you may buy Harry Potter-themed material and make a pair of pajamas for yourself. But as soon as you plan to sell, or do sell, those pajamas for financial gain, you’re breaking copyright laws.

 

4 – Don’t use trademarked words

Copyright does not protect names, titles, slogans, and short phrases, however, they can be trademarked by the creator. For example, Beyoncé has trademarked her name (which is why Beyoncé sued a seller on Etsy).

Song lyrics are copyrighted. So you can’t print song lyrics on a piece of wood, paint them on a sign, or apply them to a t-shirt, unless those lyrics are in the public domain.

 

5 – Don’t use copyrighted photos or images

You can’t use, or replicate a photo you find online; it’s someone else’s intellectual property. Meaning, if you find a picture of a celebrity online, and you print it on a product, or create a painting of it, or turn it into a stencil, etc., you’re breaking copyright law.

 

What happens if you get a copyright infringement notice on Etsy?

When you receive a copyright infringement notice, Etsy is emailing you to let you know they’ve removed the infringing material. Your listing, or potentially, your entire shop, has been removed or disabled. Etsy takes the liberty of removing or disabling access to your work when they receive a report of alleged infringement and then will send you a takedown notice to let you know it’s been removed. They won’t ask questions first.

In accordance with the Digital Millennium Copyright Act (DMCA), Etsy will accept a counter-notice from you, if you believe you are not infringing on intellectual property.

 

How many copyright strikes do you get on Etsy?

Etsy can shut your shop down on the first copyright strike. They don’t have a policy for how many violations your shop can have before they shut it down. It is left up to Etsy’s discretion and they can ban you at any time, for any reason, without notice.

For example, if your shop is full of Disney-themed products and one of Disney’s lawyers reports your shop to Etsy, they may shut the entire shop down on your first violation.

On the other hand, if you’re selling a product that is similar to another company’s design and that company files a copyright report, Etsy may remove the one listing, and allow you to continue selling on Etsy. You may even receive several of these types of infringement notices from Etsy and still keep your shop.

 

What to do when you get an Etsy copyright infringement notice?

If you receive an Etsy copyright infringement notice and don’t believe you have broken any intellectual property laws, you can file a counter notice to argue that you’re the owner of the copyrighted or trademarked material in question.

When you’re certain you do not have a case (e.g. you’re selling Disney-themed products), you should do an audit of your store. Make sure you fully understand IP laws and what you can and cannot sell and remove any questionable material from your online shop.

When it comes to the law, it’s better to be safe than sorry. You don’t want to run the risk of a company taking legal action against you.

>> Find more laws you need to follow here: Laws for Selling Handmade

 

Are images on Etsy copyrighted?

Images on Etsy are copyrighted. Copyright protection goes into effect as soon as you write, draw, photograph, record, etc. a piece of work. So when someone takes a picture of their work and posts it on Etsy, it’s automatically copyrighted and no one has the right to use it unless the copyright owner gives them permission to do so.

One can add a copyright symbol to their work to indicate it’s copyrighted, but a lack of a symbol does not indicate a lack of copyright.

Registering a copyright is like registering a trademark; it gives you an added layer of protection and makes it easier to prove ownership. You’re unable to register a copyright if the intellectual property already exists.

 

Can I sell Disney art on Etsy?

You cannot sell Disney art on Etsy. Disney is the copyright owner/copyright holder for all Disney images, logos, names, etc. A lot of people believe it isn’t an infringement issue to sell products that incorporate Disney characters or use a Disney character’s name in their product name. However, any item being sold that incorporates Disney’s copyrighted or trademarked material is illegal.

Disney fiercely protects their intellectual property and has taken legal action against several small businesses and creators.

This can be even more detrimental if you haven’t set up your business properly and/or haven’t created a legal entity to protect your personal assets.

 

For more on the laws your small handmade business should be following, whether you sell on Etsy, at craft shows, or through shops, check out:

>> Laws for Selling Handmade

 

Resources

If you’d like to do a little research on your own, here are some resources for you:

Visit this website: http://www.avvo.com and search through the various articles and questions on various subjects. Some of the keywords you may want to enter:

• Copyright – get a better understanding of general copyright laws
• Copyright infringement – this will bring up a wide range of topics and questions about what is and isn’t allowed when it comes to using copyrighted material
• Licensed Patterns / Pattern Copyright – if you sell items that follow knitting, crochet or sewing patterns, have a look into this topic
• Licensed Fabric – if you sell products made with fabric that has copyrighted images or characters on it (e.g. ribbon with Disney characters printed on it or fabric with a sports team’s logo printed on it)
• Fan art – if you create items that depict a character in a movie or tv show (e.g. crocheted minion hats)
• Copyright phrases – if you’re using movie quotes, lyrics or a play on them (Google “Taylor Swift sues fan” or “Beyonce sues over Feyonce”)
• Expired copyright – find out if an image’s copyright has expired