What do you actually *Own* as an Etsy Seller?
Are you worried about protecting your small business?
Are you a creator or freelancer and are unsure of what you have rights to and what you don’t?
If you have questions about the legal side of being a creator,
or you're confused when it comes to terms like "what's the difference between copyrights and trademarks,"
or what ownership rights you have when you sell your art online, this article will answer those questions.
Learn the basics with us!
You can listen to the episode or keep reading below to learn more about your intellectual property as a small business owner, how it is protected, and more with our special guest, Larissa of Bold City Legal.
When it comes to knowing what you own as a creator and a small business owner, and how to protect your small business, it’s very easy to get overwhelmed with all of the information out there.
Terms like copyrights, copyright infringement, trademarks, and intellectual property can be confusing, which is why we sat down with Larissa of Bold City Legal to chat about how small business owners and freelancers can protect themselves and these are the top tips that we came away with!
*This article is for information purposes only and is not legal advice.*
#1 Copyrights as a Creator - Do you always own the rights to reproduce?
A common question we hear is "What do I own or have the right to as a creative?"
By default, you own anything you produce as your intellectual property, AND even if you sell the originals, you still own the rights to reproduce prints or products from the original work, unless it was specifically agreed between you and the buyer that you would not reproduce the work.
For example, if you’re a painter you have the right to reproduce and make copies of the original work.
Where it might get tricky is if you sell that original artwork, so here's what you need to know about selling original pieces and then also selling the prints of the original artwork you sold.
So an important component with an original work or product to think about is you could sell the original painting, AND you're still retaining the right to make copies.
To put it simply if there isn’t a contract stating that the buyer can make copies you retain those rights and they do not.
Do you need to be trademarking your work, filing for copyright, or anything else to protect your work?
What all of these questions boil down to are, "how is my intellectual property protected?"
These terms are not interchangable, so before we move on, let's define each of them:
Think of copyrights as what protects the things you create, while trademarks protect your brand.
Copyrights primarily protect what you create. Copyrights protect the rights of people who create any kind of creative work including handmade products, music, artwork, software, education, online courses, or any kind of original intellectual property.
This is what protects your work from the moment it is created. There's nothing you need to actually do to have a copyright, in theory. When you make something and it becomes "fixed" and "tangible," it's automatically protected.
If you ever needed to file a lawsuit against someone to prove you own the rights, you would need to register your copyright. If you want to learn more about this, check out the basics from the US copyright office.
Trademarks can protect the use of a company's name and its product names, brand identity (like logos), and slogans.
Now a trademark is different from a watermark as it protects your brand. It’s typically used to protect a word or a slogan that comes with an image or a logo. An example of this would be McDonald’s golden arches. If someone else uses it McDonald’s trademark protections come into play.
The bottom line is that you don’t need to trademark everything, and you might not be at the point in your business where you ned to trademark anything. the truth is, it's expensive.
You may want to trademark your business name and logo, but when it comes to your work and things associated with the business that you share, these will fall under copyright, not trademark.
#3 Infringing Uses vs. Non-infringing Uses
This is a huge one, especially for Etsy sellers!
We’ve all seen work on Etsy using likenesses of famous people, lyrics, and more so how do they do it and SHOULD they be doing it?
The big thing here is knowing if something is copyrighted, or trademarked to determine whether you can use it or not.
In general, if there is a risk you could be infringing on someone else's intellectual property or their trademarks, DON'T DO IT. It's not worth your shop being shut down by Etsy.
Yes, you will see others selling a TON of Disney-related items and making so much money, and you think, "this isn't fair, why should they be allowed to do it?" but the truth is...
They just haven't been caught yet.
They're FINE with running their business until they can't anymore and they get banned from Etsy. It's a ticking time-bomb and a game you do not want to play.
A simple example of this would be using a name that has been copyrighted or trademarked when creating your Etsy titles.
In general, you never want to use someone's name. For example, you can't use “Bob Ross nature sticker” in your title or tags and you would instead need to use something like “Nature sticker Famous Painter,” or something similar. You can’t use Bob Ross in your title because of copyright protections.
Another way to look at this is that you may be able to use someone's likeness but not use their name or the name of what they are associated with.
Infringing on someone else's property can have very serious consequences to your small business. You can have a few listings shut down, or have your shop deactivated for a few days, or forever or even get sued. It's not a risk you want to take.
If you want to avoid infringement, here are a few best practices:
- Never use any other brand's name, logos, or any key phrases they are known for
- Never directly copy anyone else's work
- Do not use trademarked names & brands in your Etsy listing titles or tags
- You can search for existing trademarks with the US Patent and Trademark Office.
- You can read Etsy's intellection property policies here, and learn the process for reporting someone should they infringe on your own intellectual property.
The Bottom Line
It's best to minimize as much risk as possible when it comes to protecting your own work AND making sure you don't infringe on someone else's intellectual property.
Also, being careful will help keep you in good standing with Etsy and prevent issues like being shut down or having your listings deactivated for infringement.
If you’re creating something that might infringe on someone’s copyrights or trademark rights you should either talk to a lawyer or steer clear of it to be safe!
If you'd like to learn more about working with Larissa, or you have legal questions about your business, you can reach out to her here.
P.S. You might want to go a little deeper into the steps to protect to your Etsy shop! Check out this blog post & podcast, 3 Steps to Legally Protecting Your Business.