Etsy is a great marketplace for both emerging and established artists, but copyright infringement on Etsy can be a serious problem. Popularity on Etsy can be a double-edged sword: with fame comes the potential of copying and copyright infringement. Artists that sell their copyrighted works on Etsy should be aware of some copyright law doctrines that may apply to their works, including the legal doctrines surrounding useful articles under the Copyright Act. If your copyright rights have been infringed on Etsy, contact one of our expert Etsy copyright infringement lawyers today at 866.936.7447.
Unique works of art are often handpicked and displayed on Etsy’s front page, which can result in an almost instant increase in popularity. But this popularity may lead to imitators. Your monetary success creates an external incentive in others to infringe upon your copyright rights in your jewelry, paintings, clothing, or other works. First and foremost, copyright registration is important to protect those rights and to obtain the benefits of the Copyright Act’s provisions, including up to $150,000 in statutory damages for copyright infringement. But there are other issues to be concerned about.
Copyright law protects all original works that are fixed in a tangible medium of expression, including clothing, jewelry, or other useful items. But that copyright protection is limited in the case of useful articles. Useful articles are those that have an intrinsic utilitarian function, such as an artistic lamp. A lamp can be an artistic work, but it also is intrinsically utilitarian—it provides light. Designs of useful articles can be copyrightable, but the creative elements must be capable of being identified separately from, and capable of existing independently of, the utilitarian aspects of the article.
To determine whether it is worth the investment to pursue a person who has infringed on your copyright rights on Etsy, you must first determine whether your work is copyrightable, especially if it could be considered a useful article. In determining whether a useful article is copyrightable, the ultimate question is whether the creative elements are physically or conceptually separable from the utilitarian function. This is a difficult question to answer, and the analysis should be left to an attorney who is familiar with the case law surrounding useful articles, which varies by federal circuit.
In short, if your copyright rights have been infringed on Etsy, you should work with an attorney to (1) register your work for copyright protection, (2) determine whether your work is a useful article, (3) determine whether the copied elements of your work are protectable, and (4) pursue the infringer for their copyright infringement. This area of law can be ambiguous and complex, so it is important that you consult with one of our expert Etsy copyright infringement attorneys today to protect your rights.