Copyright, Trademarks and Your Handmade Business

Disclaimer: I am not a lawyer or anything close. But I have been in the handmade business world for close to 7 years and have seen and dealt with many issues regarding copyrights and trademarks. All information below refers to experiences I have had or seen doing business. 

Copyright and trademarks are very touchy subjects with many creative makers. But it is also something that is extremely important to know about because it does affect your business

Let me start with a real story from Jennifer, a handmade business owner who recently had an experience dealing with copyrights:


The reason why I start with this story is because it is real and something I have seen played out with numerous handmade businesses. It is so sad and hard to see when people’s livelihoods disappear overnight.


Common questions I see:  

 

Is it ok if I just have a disclaimer stating that I’m not affiliated with the NFL, Disney, a college……? 

No disclaimer you post will make it legally ok to infringe on someone intellectual property. You cannot sell items that are registered trademarks or registered copyrights of another company – NBA, NHL, NFL, Disney, Starbucks, Coke etc without permission and valid license which can range anywhere from a few hundred dollars to a tens of thousands of dollars.

Just because you put a ‘inspired by’ or ‘not affiliated with…’ will never hold up in court or on Etsy if you sell there.

 

But there are SO many people selling copyrighted items and they are making so much money! If they’re doing it and are obviously successful and haven’t been shut down can’t I do it too? 

Unfortunately no. Just because you see everyone else doing it and they seem to be making money does not mean it’s ok. I think of it like speeding on a freeway. When you’re on the road do you see people speeding? Of course, there are a ton of people racing around or in other ways breaking the rules of the road. Do they all get caught? No. But some do and when they do they pay big time. I had a friend recently get a speeding ticket for $350+!

The same goes for making and selling items using copyrighted items or someone else’s intellectual property. Its true many people do it and don’t get caught. But when they are called out by the company whose copyright or trademark they violated, they pay. Etsy shops get shut down, lawsuits can be filed, businesses that families depend on to keep a roof over their head and food on the table can be shut down overnight. People also run the risk being sued and having to pay for past sales they’ve made off of the copyright or trademark they violated.


So everyone with a Mickey character outline is infringing?

Yup. If you didn’t design it, you can be held accountable.

Whether we like it or not the law is clear in that as business owners we are ultimately responsible for researching and making sure our products and designs are unique.  Ignorance of the law is neither an excuse nor a valid defense.

If it seems like everything is copyrighted or trademarked what can I do?!

You are an amazing creative business owner! Get those creative juices flowing and make something that stands out from the crowd. Make it unique and make it yours! Then if you are questioning if it is, do your research. It is better to spend a little bit of time researching to make sure that you’re not. Spending a little bit of time researching now can save a lot of frustration down the road.


Why is Etsy so strict about copyrights and trademarks (sometimes)? It seems like they shut people down left and right for no reason but then they don’t for so many others. 

Etsy is a third party. They risk being sued if they allow illegal activity on their site. They will only take down a listing or shut down a shop if the company who owns the copyright/trademark contacts them.

Etsy can and will shut down your shop without warning and everything you’ve worked for could be gone with a click of the mouse. (this is why I always recommend having a website apart from Etsy, I personally use Shopify to build my website)


How do you know whether your items posted have a trademark or copyrightare??

It’s pretty simple with some things.  You can’t use any trademarked/copyrighted or otherwise legally protected ANYTHING.  No characters (Mickey Mouse, Superman, Buzz Lightyear), teams (Denver Broncos, Lakers, Patriots), company logos (Nike, John Deer, Coke, Starbucks), etc.  Many phrases, quotes, and designs have also been protected by smaller businesses and private individuals, as well.

 

What about quotes? 

Yes, this can include quotes and phrases. There are a number of phrases and quotes that are registered and protected (scroll to the bottom to see a list). Trademarks on phrases were meant to protect a brand for example the phrase “Girl Boss” is also the name of that company so use of the phrase would confuse it with the Girl boss company itself.
You can find the trademark in TESS (US Trademark database).

My 2 cents, it is ridiculous that someone can trademark “fairy dust” and some of the other common phrases that are trademarked and that some are being used incorrectly.

However, it really doesn’t matter what I think about it 🙂 If the trademark office says they have a registered trademark on it, Etsy can shut you down and you could potentially be sued.

I would suggest joining the newly formed Facebook group Makers Against FrivolousTrademarks where they have a listing and a number of discussions about what words/phrases have been trademarked. Also recently a trademark lawyer did a very informative webinar with some great insights about Etsy and some of these trademarked phrases.

 

Why does it even matter? It seems so dumb and people shouldn’t be allowed to trademark phrases and words or copyright some things.

You are a creative. Imagine spending hundreds of hours developing a new product. It’s new, its fresh, it’s original and people instantly fall in love with it. Then imagine if after selling them you start to see copycats pop up using the same exact design but calling it their own. You would be devastated and angry.

 

I have seen this side of copyright many times where the original designer essentially loses their income because so many people are copying unless they do something to stop the copycats.

 

Attorneys that work with creatives/handmade businesses:

Joey Vitale – he runs a Facebook group Indie Creative Law

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