Whilst online marketplaces like Etsy offer artists, makers and craftspeople an exceptional opportunity to reach a global audience, they also present unique and often significant intellectual property issues. In this article, our intellectual property solicitors discuss Etsy’s stance on copyright infringement and explain what you should do if you receive a copyright infringement notice.
- What is Etsy’s stance on copyright infringement?
- How to avoid copyright infringement on Etsy
- What happens if you receive a copyright infringement notice?
- Should you be worried about a copyright infringement notice?
- How to respond if Etsy has suspended your account or has removed your listing
- How we help clients that have received a takedown notice from an ecommerce platform
What is Etsy’s stance on copyright infringement?
When a seller joins Etsy, they agree to be bound by its terms and conditions, which include an intellectual property policy based on US law.
It is obviously in Etsy’s interests to limit its exposure to claims for intellectual property infringement. It does so by adopting the position of a passive host for user-generated content. Put simply, Etsy takes no responsibility for the products sold by its sellers and avoids becoming embroiled in any dispute relating to intellectual property insofar as it possibly can. It does not review every infringement allegation separately and instead operates an automated system pursuant to which copyright infringement claims against a seller are made by way of online form, known as a ‘takedown request’.
On receipt of a takedown request, Etsy will immediately remove the accused listing. Whilst the seller’s entire account isn’t usually disabled on the basis of one complaint, Etsy reserves the right to terminate a seller’s privileges at any time and will usually do so if numerous complaints are received against the same account. Etsy claims to reject fraudulent or dishonest allegations. However, since it does not review each allegation and relies instead on the fact that those making a takedown request do so under penalty of perjury, such assurances are cold comfort to those whose listings or account are wrongly taken down or disabled.
Once the allegedly infringing listing has been taken down, Etsy will notify the seller, who can object on the basis of mistake or misinformation by filing a counter-notice. If a counter-notice is filed, the copyright owner has ten days to commence legal proceedings against the alleged infringer, failing which the listing will be reinstated.
How to avoid copyright infringement on Etsy
Many Etsy sellers have a mistaken belief that if others are selling a particular type of product, they can legally do so as well. This is untrue. It is no defence to copyright infringement that others are also committing infringing acts. If you use the whole or a substantial part of a work protected by copyright, you are potentially liable for copyright infringement.
The types of infringing products prevalent on Etsy and other online marketplaces are wide and varied. Examples include:
- T-shirts featuring graphics or photographs protected by copyright; these might be photographs of celebrities or cityscapes, film stills, cartoon characters, graphics, and anything else that constitutes original work.
- Posters or prints featuring works of the type listed above.
- Framed prints or postcards featuring poetry, lyrics or other original literary works.
- Photographs of sculptures or other original crafts.
It may also be copyright infringement to copy another seller’s listing information and use it as your own.
Generally speaking, whenever you use somebody else’s work, whether by copying it directly or in an altered form, or incorporating it into products, you risk infringing copyright. This includes so called ‘fan-art’ and the like. The only failsafe way to avoid infringing copyright on Etsy is to use your own artistic skill and creativity to produce items which are entirely original. However, there are some exceptions to copyright, and it does not last indefinitely, so there may be instances in which you are able to legally use a third party’s work. If you are unsure, seek clearance from an intellectual property solicitor before creating the products.
What happens if you receive a copyright infringement notice?
As we have explained above, by the time you receive a copyright infringement notice from Etsy, your listing will have already been taken down. If you wish to object to the takedown, you can file a counter-notice which will give the seller ten days to commence legal action against you. If they do not, your listing will be reinstated. If, however, further takedown requests are received, Etsy may disable your shop.
It is important to appreciate that Etsy’s reinstatement of a listing is not confirmation that the product is not infringing, merely that Etsy’s own intellectual property procedures have been exhausted. The ten-day window afforded to a rights owner to commence the legal action required to avoid the relisting of an item is somewhat arbitrary and unrealistic, and a seller’s failure to adhere to it should not be taken as an indication that the matter has gone away. Once they are aware of an arguably infringing product, they may pursue legal action for copyright infringement regardless of the position on Etsy.
You should take timely advice from an experienced intellectual property solicitor when you receive a copyright infringement notice to ensure you are fully protected and do not do anything which may jeopardise your position.
Should you be worried about a copyright infringement notice?
Sadly, some unscrupulous sellers and even genuine rights owners seek to take advantage of Etsy’s policy by filing takedown requests at will, in circumstances where they have no, or a questionable, copyright infringement case. They exploit the fact that takedown notices panic many Etsy sellers, and so issue notices for their own ends, be those to stifle competition, or extend the remit of their rights beyond that afforded by law. In such cases, filing a counter-notice can often end the matter since there was never any genuine intention to pursue the case legally.
Accordingly, if your product is entirely original, there is often little need to worry about receiving a copyright infringement notice. Nevertheless, you should always seek advice from intellectual property solicitors with experience in dealing with issues involving online marketplaces as soon as you receive a notice, to ensure you have fully understood the applicable law and do not leave yourself exposed to legal action.
How to respond if Etsy has suspended your account or has removed your listing
Firstly, don’t panic. Our intellectual property solicitors have a wealth of experience in dealing with issues of this nature and will comprehensively advise you of your position and guide you through the process.
You should review the listing in question to ascertain whether the allegation has any merit. If you are certain it does not, the filing of a counter-notice may conclude the issue. However, since a counter-notice initiates Etsy’s ten-day period for the other party to commence legal action, it is vital to ensure your position is legally correct. Further, fraudulent or incorrect counter-notices may result in the termination of your Etsy account, and the information contained in them can be used as evidence in any future Court proceedings. Accordingly, it is vital that the information submitted is true and legally accurate. Our intellectual property solicitors will assess your legal position, advise on the best strategy and prepare the appropriate counter-notice on your behalf.
Unfortunately, Etsy’s automated system does not allow you to pre-empt future allegations. So, whilst your listing may be reinstated following your counter-notice, further groundless takedown requests could be made which may lead to your shop being disabled. This can have significant consequences, particularly if you rely on the income generated by it. Accordingly, if the allegation is without merit, you should seek help from an intellectual property solicitor as soon as possible. Your solicitor may advise sending a letter to the other party directly, notifying them of the legal position and pointing out why their allegations are incorrect. Receiving a letter from a solicitors’ firm often focuses the other party’s mind and prevents further groundless allegations. If the matter includes the alleged infringement of other types of intellectual property such as trademarks, there may be scope to notify the other side that since their threats are unwarranted, they themselves are potentially liable under the UK groundless threats legislation. This legislation, however, does not apply to copyright.
If the allegation has some merit, or if you are unsure, you must take immediate legal advice to prevent the matter from escalating. You should also review all of your products and remove any other potentially infringing items from sale.
How we help clients that have received a takedown notice from an ecommerce platform
Our intellectual property solicitors have helped many clients facing disputes over products sold on ecommerce sites, with excellent results. Since the issues involved in such cases are nuanced and often unique to ecommerce platforms, our solicitors’ experience makes them ideally placed to assist business owners facing them. They have a deep understanding of the intricacies of ecommerce platforms and will use their expertise to act swiftly and decisively to protect your interests and secure a favourable outcome.
For example, when Lindsay Gledhill, our head of intellectual property, assisted entrepreneur Mariani Robinson in resolving the takedown notice that resulted in the removal of six of her listings from Amazon, Lindsay managed to secure the withdrawal of the complaint, reinstatement of the listings, agreement from the other party to refrain from filing any further complaints and payment of Ms Robinson’s legal costs. Here you can read about the intellectual property infringement case.
Ecommerce trading provides a significant income stream for many small businesses. When takedown requests lead to the removal of listings and even entire shops from a marketplace, the consequences can be economically disastrous. The automated nature of Etsy’s infringement policy makes addressing such issues time-consuming, frustrating, and, to the inexperienced individual, often ultimately fruitless. Dealing with them effectively requires not only expertise in intellectual property law and practice, but also an understanding of the nuances of ecommerce sites.
Our intellectual property solicitors are specialists when it comes to helping people with intellectual property problems on ecommerce sites and are skilled in identifying and executing fast, cost-effective solutions. They understand the financial losses these issues can cause and will act quickly and decisively to stem the losses, so you can get on with running your business with the minimum of disruption.