When you’re hit with a copyright infringement case on Etsy, it can be annoying, scary, or just maddening, depending on the situation.
Sometimes you’re the one filing the copyright claim against another shop, and that can be more annoying than being hit with a claim!
Before I get started, let me say my disclaimer: I am not an attorney, and I’m definitely not your attorney. This isn’t legal advice, and if you want to get some actual legal advice you’ll need to contact an intellectual property attorney who can give you the right way to go about filing a case or handling it if someone files a case against you. I’ve provided the name of one firm that provides these services later in the article.
So how do you avoid having a copyright claim filed against you on Etsy?
In order to avoid a copyright claim on Etsy, you need to make sure that all of the designs that you create are original works of art that you have created without using photos, graphic design elements, or by copying another existing piece of artwork. This includes using different graphic design elements to incorporate into a “new” design, since some of those design elements might also be claimed with a copyright strike.
The most foolproof way to make sure you’re not infringing on another person’s copyright is to draw your own art without copying someone else’s work.
If you use existing graphic elements that you take from the internet, or even if you buy them, you’re always going to be running the risk of that element having been copied from someone else.
Table of Contents
- What is a copyright?
- Can I use clipart to sell on Etsy without violating copyrights?
- What is the DMCA process on Etsy?
- How do I know that the clipart I’m using is legal to use?
- How do I know if something on Etsy is copyrighted?
Some of the links in this article are affiliate links that will pay me a small commission if they’re used to purchase something. To see the entire affiliate policy click here.
What is a copyright?
The US copyright office defines copyright as any type of “original works of authorship fixed in a tangible means of expression.”
Basically, anything that you draw, write, design, film, record, etc. are copyrightable. (Did you know that you can copyright a sound?)
Copyrights aren’t the same as patents or trademarks, those cover processes and business identifiers, basically.
For the FAQ from the US Copyright office, click here: Copyright in General
Can I use clipart to sell on Etsy without violating copyrights?
Etsy’s policy about the use of clipart is that designs that are sold on Etsy need to be a “new” design, they can’t be the original clipart on its own. In order to be “Etsy-legal” you have to materially alter the original clipart so that it’s a different design than the original.
Basically, you can’t just take a piece of clipart or a graphic and slap it on the product to sell without changing it to be something different.
Even if you’ve changed the design to be something different, though, you still can’t use someone else’s intellectual property as part of that new design unless you have a license to use and sell that artwork.
This includes clipart, photographs, some fonts (yes, some fonts are copyrighted,) text from books, song lyrics, and any other “original works of authorship fixed in a tangible means of expression.”
Etsy requires that everything that we upload to the site is something that we have the rights to use, and by using Etsy, you’re legally swearing to that because you’re accepting their Terms Of Use every time you post a listing.
Because of safe harbor laws, Etsy as a marketplace protects itself from copyright infringement lawsuits by passing the responsibility onto the seller, which is what the DMCA process is for.
To read Etsy’s Ultimate Guide to Intellectual Property, click here: IP Guide
What is the DMCA process on Etsy?
The Digital Millennium Copyright Act, or DMCA, was a law that was passed in 1999 to protect copyrights while also limiting the liability that platform providers like Etsy, Google, and YouTube have as far as the content that their users upload to the platform. By following DMCA guidelines, the platform is basically staying out of copyright disputes and by doing so, isn’t able to be sued for infringement.
This is the most misunderstood part of copyright on Etsy that I see, as far as reporting goes.
Because Etsy is a platform, and follows the DMCA process to protect itself, it is NOT the judge about what is and isn’t copyrighted.
When someone files a DMCA takedown notice with Etsy, Etsy is legally responsible for removing the listing that’s being targeted. Etsy has no say in whether it’s a legal or illegal use of whatever is being claimed as infringing. They’re just following the DMCA laws by removing the listing.
When a DMCA claim is filed, Etsy removes the listing and sends the listing owner a notice and instructions on how to file a counterclaim.
If you get a takedown request and your listing is removed, you can either file a counterclaim that says that you are the legal rights owner to the artwork, or ignore it if you know that you’re not the owner.
If you want to check for a registered copyright, you can go to the US copyright office website, or the copyright office in your country, to see whether there’s an active copyright that’s registered. However, you don’t have to register a copyright to own it, you just have to be the one to publish it first.
This is where it gets tricky…If you didn’t 100% create an image yourself, then you might be violating someone’s copyright. However, it’s possible that you think you 100% created it yourself but it looks enough like the other person’s artwork that it could be seen as the same thing.
This is a legal issue and because there are so many ins and outs, you may need to consult an Intellectual Property attorney to make sure you’re handling your situation correctly. Again, this article is not legal advice, and there are so many factors to consider, it can’t possibly be a complete reference, it’s based on my experience but you need to go get legal help if that’s the case!
There could also be a false claim that’s being filed against you by a competitor, and they don’t actually have the right to say they were the first one to publish the work.
Here’s the thing…This is a legal process, and once a DMCA is filed, you’ve entered legal territory. If you file a counterclaim, the original filer has to then take legal action against you, or let the matter drop.
And once a legal form is filed (the original DMCA) everything has to be done legally, and signing a form when you’re not 100% sure that you’re in the right can cause you a lot of trouble down the road.
ETSY IS NOT THE JUDGE.
This is very important to understand. Etsy CANNOT file DMCA takedowns, only the copyright holder can do that. When Etsy removes listings, it’s because they’ve had something happen and they’re responding to it.
Once the claim is filed, the original person who filed the claim will have to be the one to withdraw the claim, either by formally withdrawing it in writing, or by ignoring a counterclaim.
You can’t file infringement reports if you don’t own the intellectual property, but you can report the existence of listings that you think are infringing to the owner of the property and let them handle it.
That means that you can’t write to Etsy and tell them to take down all of the Disney infringing material, only Disney can do that and get a legal response. But you can write to Disney and tell them about shops that are infringing, here’s their contact information: Click here to drop a dime on Disney thieves.
If you want to read about the legal ins and outs of filing copyright claims, and sending a cease and desist letter BEFORE you start an actual legal process, go to this website that I found. It has a lot of articles about this issue and if you need help with a C&D you can hire them to do the legal work for you: Mandour and Associates Intellectual Property Law
How do I know that the clipart I’m using is legal to use?
Here’s the thing…You can never be 100% sure that clipart that you get online, whether you buy it or not, is legal to use, unless you’re buying it directly from the artist and following all of their policies as far as permissions go. There are too many people selling clipart with fake use permissions, and it opens you up to receiving an infringement claim.
Here’s an example…If you go to a site and buy a bundle of svg files that the person selling it says are okay for commercial use, but it has Disney or other cartoon characters in it, that’s not right. If you use them and sell them, you’re not protected from an infringement claim.
If you create fan art, you’re not protected from an infringement claim if the company decides to come after you.
If you take photos that you find online and use them in your artwork, you’re not protected becasue you’re stealing photos.
I know way too many people who have seen their original work on sites that are selling them with a “commercial license.” It doesn’t protect you from a claim if you say that you bought it from someone who you paid the so-called license fee to, it just means that you got ripped off.
If you’re going to purchase clipart to use, get it from a reputable source, like Adobe or Canva, and make sure that you’re following their policies about how you’re allowed to use the artwork. Sometimes you’re not allowed to sell anything with the designs on them, or you can only sell a limited number of the item.
It’s up to you to follow the laws, and these are laws, not just guidelines.
How do I know if something on Etsy is copyrighted?
So how do you know if something on Etsy is copyrighted? If you can see it online ANYWHERE, it’s “fixed in a tangible form,” so it’s copyrighted unless it’s public domain, which is different issue. (You have to change that, too, if you’re going to sell it.)
There are a lot of shops on Etsy that are selling stolen images and svg files. Just because someone is selling them doesn’t mean that they designed them, so this is a buyer beware situation.
It’s safest to buy from artists who have a clear style, and the same style across all social media channels. If someone has multiple styles and their different listings look drastically different, it’s possible that they’re stealing images from a lot of different people and posting them as their own work.
You should also check to see if they have any videos of themselves creating the artwork anywhere online. Process videos are good to verify that they’re the ones who are actually creating the originals.
Make sure that artwork that you purchase is okay to sell, and that you’re following the terms of not only the artist, but of Etsy as well. Generally, you’ll need to create an original arrangement of the images so that the artist’s work can’t be extracted intact from the finished design, but everyone has their own policies.
And something else to remember, even if you buy a license to use the artwork, the original artist still owns the copyright. If you buy a painting, for example, you can’t use it to make greeting cards and sell those.
And if you use someone else’s artwork in your own design, you might run into trouble if you try to claim copyright on it if someone steals it. That’s when you need to get the original artist involved, but who knows, that other person might have also purchased a license to use it!
So no, you can’t take the pictures that you see online and use them in your designs. You can’t even do a painting from someone else’s photos and sell those and be 100% safe from an infringement claim.
The best thing to do is to take your own pictures, make your own artwork, and don’t assume that things that you buy online are actually copyright free. Use a reputable source if you do purchase clipart, don’t take random images from the internet, and you’ll be protecting yourself from infringement claims.
If you’ve been copied on Etsy, click here to read their guide on what to do.
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