Copycat, Copycat: Legal Considerations for Etsy Sellers

A weekly scan of the Etsy forums will tell you that handmade sellers and artists who use the world’s most vibrant marketplace are worried.

Worried about copycatters and worried about being called a copycatter.

When I was an Etsy seller, I sold my most popular style of necklace to another Etsy seller and was happy about the sale. Fast forward a month and I see the seller was now hawking my same necklace style in the same variety of colors at a slightly lower price.

Was I upset? Yep. Did I contact her? You bet. In our conversation she admitted that she was recreating the necklace but said she had purchased the supplies before receiving my necklace (which of course I didn’t believe). In the end, she said she would remove the products from her shop and I was fine with that. There was nothing more I could do.

Or was there?

In this interview with David Lees, partner at law firm Mills & Mills in Toronto, I asked what artists can do to protect themselves and their work from being copied and what an innocent artist could do should they themselves be accused of doing the copying.

Artists being copied by another artist

Accusations are hurled daily and sadly it’s just something that will continue to happen with the record number of sellers flocking to Etsy month after month. If you feel your original work was in fact copied and want to do something about it, here are a few things to consider:

Justine: What could an artist do if they find their work is being copied by another artist?

David: An artist should notify the other artist that he or she is copying their work. It is best if the notification that you provide is written such as in an email. It is important for the artist to keep a record of when they did their work and how it was displayed or published, and evidence of the offending work such as print outs of web pages, etc.

Justine: Can they be sued?

David: The other artist can be sued. An artist would have to commence a Statement of Claim against the wrongdoing artist. The claim might ask for relief such as for the wrongdoing artist to stop doing something or misrepresenting the artwork, or the claim may seek damages that have been suffered as a result of the other artist using copied work.

Justine: Would it make a difference to have disclaimers on their product pages (such as “please do not reproduce my work”)?

David: For the disclaimer, it is helpful to show that the artist is clearly claiming ownership and that the work should not be reproduced. It would be helpful in court because it shows what the artist was claiming and expected. Unfortunately there is still an issue of proving whether the wrongdoing artist copied the work or not.

Artists being copied by big brand

A couple years back I saw this Etsy thread by shop seller vital who accused Urban Outfitters of reproducing their work after samples were sent. It was very obvious when I read this and saw the shirts in question that vital was indeed ripped off and not even in a lowkey way. And the fact is, there have been PLENTY more accusations to Urban Outfitters and other top brands since.

Justine: What could an artist do if they think their work has been copied by a huge brand?

David: An artist should immediately inform the brand of their concern and identify what is being copied. Sometime it is worthwhile to retain a lawyer to write on you behalf to communicate to the brand that this is a serious infraction and that you are intent on pursuing it. In order to prove their case the artist should have evidence of their work and when it was done and where it was available. The artist should also keep copies of the offending work such as webpages etc in order to preserve evidence showing that the artist’s work was copied.

Justine: There had been talk on Etsy that a major brand had been consistantly stealing ideas and inspiration from Etsy artists and many felt there was absolutely nothing they could do. Is this the case?

David: While you can make threats about your work being copied, without better evidence it would be a very difficult case to pursue.

Artists wrongfully accused of copying

At anytime in your handmade career, this could happen to you. With so many sellers sourcing the same materials from the same places and originality being hard to spot among the saturated categories like jewelry and soap, you could one day receive an email accusing you of stealing someone else’s work. While it doesn’t mean you have anything to worry about, be aware of what you can do to protect yourself.

Justine: What should an artist do if they are accused of copying (and they did not do it)?

David: An artist needs to show that they developed their work independently of the work that they are being accused of copying.

What this means for YOU

As you can see by this interview, the common theme throughout is that in order to protect yourself fully from someone stealing your work or accusing you of stealing their work, you need proof that this work is yours and yours alone. To do that, here are a few helpful tips:

  • Keep a product journal

While this isn’t concrete proof, any time you go to create a new product, be sure to write down the product details and then more importantly, where the inspiration and idea for the product came from. Did you go for a walk in your garden and get inspired to make a flowery painting? Write it down. Any time a new product pops up, keep diligent track of where the idea behind it came from, how and when you first created it and any other important notes that could be used in court should someone accuse you of stealing their idea or you find the work copied by someone else.

  • Screenshots are your friend

If you see someone or something that you believe is a rip off of your work, screenshot it immediately. Many times after your initial contact has been made with the artist or brand and they are alerted of your accusation (and whether their guilty or not) they will promptly remove the products in question leaving you with little proof if you didn’t snap ‘photos’ of the products first.

  • Records are gold

This is a no brainer but always be sure to keep copies of any correspondance or hard proof of conversations between yourself and other parties in question to ensure you can show this proof in court should you go that far. Same goes for shipping receipts (should you have sent samples of your work to a large brand) and receipts of materials you used to make your products.

  • Get more creative

In the case of that seller who stole my necklace idea, there was nothing more I could do if she had ignored my initial contact or refused to stop selling the necklaces. Why? While I created the necklaces with my own inspiration, I sourced all my supplies on Etsy and pieced together the necklaces using tools and raw materials. If I had painted a necklace picture that was clearly ripped off, that’s a whole other story.

If you are selling products that could easily be reproduced because of the materials or techniques you use, try learning new ways to create products that are more original and not so easily reproduced for both peace of mind and better business success.

For more information on copying, copyrights and legal help for artists and handmade sellers, read these great articles:

Real Talk: DIY is not Duplicate it Yourself

All about Etsy FAQ Series: Legal Info

UK Edition: Big Brand Copycats

Etsy, I See Copyright Infringement

The Danger of Diy Culture

It’s Time to Make Some Magic

This post is for general knowledge purposes only and not intended as individual legal advice.

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