Etsy: The Fuzzy Line of Creativity and Trademark/Copyright Infringement

Two of the biggest online entities for fan creativity are CafePress and Etsy. Often for fan artists there is a tricky balance between creating an item that is inspired by a book or the movie vs. something that takes the rights of others.  It gets even trickier when you have a book in the mix because now you have a publishing company’s rights to deal with as well.

CafePress entered into an agreement with Summit to allow fans to produce fan items from the Twilight Saga. There are tens of thousands of items from water bottles to tee shirts. There are some limits, like no images from the movie, and no fangs, but you can quote the movie, and use character names.

On the other hand, Etsy has no such agreement, and this leads to confusion over what is allowable. CNET covers some of the controversy:

One of the biggest entertainment franchises in the world, for example, is almost completely absent from Etsy: the Twilight teen-vampire book and movie series. There are items that describe themselves as “Twilight inspired,” but posts in Web forums by Etsy sellers who have had Twilight-related items removed from the e-commerce site indicate that Summit Entertainment, the movie studio that owns the trademark to the Twilight franchise, has been policing Etsy for more obvious infringements.

For legal reasons, Etsy’s Feingold declined to comment on these reports or on which specific brands’ trademark holders have called up the company with takedown notices, and Summit representatives did not respond to a request for comment. But considering Summit’s history of filing suit against unofficial Twilight media, it’s not surprising.

One of the reasons why this is so complicated is because trademark holders are required to enforce their property or risk losing the trademark altogether.

“They are required to protect their trademarks, if they are to continue to have them, so that it doesn’t fall into the public domain,” explained David Foox, a onetime patent litigator who is now an artist. Foox said he’s experienced these complications from both sides. “If you have a trademark, and you registered it, it means you have carved out a part of this idea that has been developed into a brand.”

Foox said that as an artist, he sees fan creations, including those where the fans aim to profit, as a measure of success, but that as an attorney, he recognizes the legal requirement to protect trademarks.”

See more on CNET.

So what exactly can you or can’t you do? Some things are obvious. You can’t take things like the Little Brown cover art, the movie stylized writing, movie stills, photos taken by professional photographers and use them without previous permission and in all likelihood payment for using them. Those are all unquestionably trademarked items. They are infact a violation of the Etsy Terms of Service. You just can’t take those and not expect to be slapped with a takedown when the intellectual property owner finds out.

On the other hand creating a fingerless gloves similar to the ones Alice wore in New Moon and calling them “Twilight Inspired” (vs actually saying “these are Alice’s gloves”) is probably fine.  Creating a bookmark that says, “A Perfect Rainy Day in Forks” or “Volterra, Where Tourists Come In, But They Don’t Come Out.” are both probably sufficiently vague.

So what about making a pendant that quotes the spider monkey line and has Team Edward on it. What about making locket and inscribing it with “Renesmee”? …Welcome to the gray area, and THAT’s what is causing a lot of the trouble!

What also leads to trouble is that when a complaint is lodged about one item, at times an entire shop will be suspended rather than just the one item in question which results in a loss of revenue for the shop owner until the matter is cleared up. Cafepress, for example, doesn’t remove entire shops, just the item(s) in question.

Twilight isn’t the first franchise to do this. Warner Brothers, who control the Harry Potter franchise, took down all Harry Potter CafePress shops circa 2003. They sued a women having Harry Potter dinners at her restaurant. They also vigorously enforced their copyright on fansites (Ask the guys on Mugglenet what they have gone through over the years  to make various tee shirts).

Additionally, if you really want a legion of lawyers to descend try taking anything that has to do with Disney. Disney is legendary with their vigorous defense of their intellectual property. I’m sure this family business didn’t bank on the 1 million dollar lawsuit over Winnie the Pooh!

So as of now, it looks like CafePress is the safest place for Twilight fan creations. Etsy, is going to be a proverbial crapshoot.

Comments

  1. Your timing on this is somewhat ironic as I just got “taken down” so to speak by etsy and Summit yesterday. Not over specific items, but the name of my store, which is actually my username on TwilightMOMS and has been since May 2008 (before the first movie ever came out). So now I can no longer use TwilightTammy and have to relist everything and start over. What a great way to treat the fans, huh? Since when does Summit own the word “twilight”?

    Oh well, I’m working on opening a new shop over on ArtFire now.

    • Twilight_News says:

      That sounds like an over zealous enforcement by someone at Etsy having had complaints on stores and not even looking at your items. In other words it’s easy to unapproved without really doing taking any kind of time, and just saying “well it’s infringement” without really dong the research. What they are probably banking on is people who are actually in violation packing up and essentially knowing it was fun while it lasted and closing up, and then people who believe they were innocent going through a restoration process. Which really, is grossly unfair if we are just talking about a shop title and not products.

      You have a very valid case against them citing exactly what you said here. The usage of the word “Twilight” in a shop owner title is not a trademark issue when it comes to a user name(unless they are demanding people use their real names which is a different issue). I would screen cap what items were in your store, the appearance of your store, and send an email to the owners and the TOS department. Let them know that you are going elsewhere because they are not living up to their own TOS.

      You can also go after them via the better Business Bureau http://www.bbb.org/new-york-city/business-reviews/internet-shopping/etsy-inc-in-brooklyn-ny-104233/ The info there also lists corporate officers and contact info.

      None of the above means that what is happening doesn’t totally suck, and is frustrating, but I’d give the higher ups notification.

  2. TwilightRocks!!!! says:

    It makes me sad that we cant as fans buy stuff other fans made that has to do with Twilight… I love Etsy and will still shop there but Im a little disappointed that this is happening- sometimes the handmade stuff is just better than the commercial stuff its more thoughtful and a lot of times you can personalize it. :/

  3. Well this is why I don’t sell stuff online. It’s just not worth it. I also rather make my own Team Edward/Jacob or whatever than buying it online or at a store. I just hope Summit doesn’t go crazy like it seems with Tammy Weisensel. I understand when it’s stuff that was rightfully ‘Twilight’ items but the name? Really? It could have referred to something else. Good article though!

  4. This topic crossed my mind when I was perusing the Craft section of the Fandom Gives Back auction last time around…there was some gorgeous stuff that blatantly used trademarked images etc. and I remember thinking that if Summit caught wind of it, they’d probably put the smackdown on those auctions. :-/

    Summit has been pretty overzealous about going after anyone whose stuff is even “inspired by” Twilight. I completely understand and respect the need to protect your intellectual property, but they’re obviously going too far in some cases (like Tammy mentioned above).

  5. I had some items also in Art Fire and I was also taken down by Art Fire thru a Summit Letter of Trademark and copyright ownership, because I have some handmade jewelry inspired by the whatever Twilight Book Theme it is.. And I also have to re-list all my items. Like Tammy I started making the jewelry before the first movie came out because my daughter became such a Big fan of the book and it was something that we did together, we created very cool jewelry we just have fun with, so when Art Fire send me the email about Summit removing all my Twilight inspired items I was very disspoinment and sad, it wasn’t Art Fire fault I love this site, but I am with Tammy Twilight, Eclipse, New Moon or any other name in the books are not unique words, they are use everywhere, and God forgive if we make a couple a dollars selling our handmade stuff versus the Millions Summit makes. I think they are going overboard with this.

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