Welcome to the latest installment in my blog series about intellectual property! Click here to read my introductory post, which is all about trademark versus copyright. Click here to read my last post, which is about fair use exceptions.
Today’s post is going to cover some of the most common violations in blogging and crafting, since those are my two areas of personal expertise.
Before we begin, though, my usual disclaimer: I am not a lawyer! This is not legal advice!
I won’t spend too much time discussing exceptionally obvious violations: copying someone else’s blog word-for-word and claiming it as your own, pirating music, selling knock-off luxury goods, etc.
For each common violation I cover, I will also seek to give guidance on how to remedy or avoid the violation.
Common Violation: Using Someone Else’s Photos in Your Blog
This is a tricky example, because using someone else’s photos in your blog may or may not fall under fair use, depending on how and why you use them. In the world of blogging, the fair use exceptions that usually come into play are education and critique/criticism. If you need to include someone else’s photos in your post in order to provide education or offer criticism, and if you give the photo’s owners due credit, that likely is safe in terms of fair use.
However, many bloggers simply grab photos from the internet to accent their blog post. Let’s say I am writing a post about a beautiful spring day I had, and I decide to add a pop of color in my post header image, so I go to Google and grab one of these gorgeous photos of my favorite flower:
Even if I were to give proper credit to the photo owner, this would still violate their copyright since my usage of the photo was not covered by a fair use exception. There was no educational need for me to include a photo of peonies. I am not offering a critique of peony arrangements.
My advice: If you have a fair use exception, make sure you give proper credit to the original creator. This means, BE CAREFUL GETTING IMAGES FROM TUMBLR OR PINTEREST. These sites, while fun to browse, are a recipe for wrongful attribution, as it is very difficult to trace back to an image’s origin.
If you do not have a fair use exception and simply want to add some nice photos to your post, check out Pexels.com! They’ve got loads and loads of public domain images totally free to use. I get a number of my images from there.
Common Violation: Derivative, not Transformational, Works
My experience is that this type of common violation is more common in for-profit crafting as opposed to blogging. We all know that creating an exact replica of a copyrighted product is a no-no. I can’t go around printing knock-off Gucci shirts to sell on the street – at least, not without paying the price in a lawsuit!
What about creating my own art or crafts inspired by my favorite IP franchise? Be VERY careful, because if a work isn’t sufficiently transformational, it is a copyright violation.
Take the following examples from Etsy. Both this Harry Potter-inspired painting and the Elsa crocheted doll are creative in the sense that the sellers used their talents to create goods based on franchises they love. Unfortunately, however, both of these listings are egregious copyright violations and run the risk of a DMCA take-down.
Just because something is creative, doesn’t mean it’s not a copyright violation. To sell something inspired by a copyrighted IP franchise, it needs to be transformational, not just derivative. When does derivative become sufficiently transformational? Unfortunately, there is no written answer. It’s ultimately up to the copyright holder and, if it comes to it, a judge.
Common Violation: Using Trademarks in Marketing
I can’t tell you how many times I see this mis-step on Etsy. A seller goes to great lengths not to violate copyright law in creative original, sufficiently transformational products. But then, their marketing (including listing titles, descriptions, and tags) includes trademarked words and phrases.
Take for example this red and white polka dotted skirt. There is absolutely nothing wrong with this product itself. Yes, Minnie Mouse is known for wearing red with white polka dots, but this skirt itself is by no means a copyright violation of Disney’s intellectual property.
However, the seller unfortunately violates trademark law in their marketing, highlighted below:
“Minnie Mouse” and “RunDisney” are trademarks held by Disney Enterprises. Why does this matter, if the product itself is free of violations?
Well, it matters because of SEO!
I 100% guarantee you that this seller is getting more views and more sales because of these trademarked words, causing them to show up high in search rankings. They are, quite literally, still profiting off of Disney’s intellectual property, even if the skirt itself is perfectly fine.
My advice? Run every single tag you use on Etsy through the USPTO database. Just don’t use trademarked words or phrases in your listings. Yes, you’ll lose out on sales this way, but it’s the ethical and legal thing to do.
Common Violation: Thinking Disclaimers Help
I’ve seen many creatives think that disclaimers somehow absolve them of obeying intellectual property laws. This would be like zooming down the road at twice the speed limit and thinking that a bumper sticker that says “I don’t speed” will keep you from getting a ticket.
Consider one of the best (and by best I mean worst) examples I could find: This Etsy shop sells decals for use on Disney’s MagicBands. This in and of itself is legally problematic since all of their decals include the trademarked Mickey head shape. But what I want to point out here is how they egregiously rip off of copyright-protected characters and movies, only to turn around and claim that they don’t sell anything even remotely inspired by Disney.
First check out their disclaimer that appears on each of their listings. I’ve highlighted the problematic disclaimers. (Interestingly, and perhaps intentionally, the appearance of the word “Disney” in this listing will be picked up in searches, so their alleged attempt at avoiding violations may itself actually be a violation).
But then check out the actual listing these disclaimers were on. OK, sure, they at least had the good sense to use generic terms instead of “Toy Story,” “Buzz Lightyear,” “Woody,” “Jessie,” etc. Yet they LITERALLY ARE DEPICTING said characters in the “Toy Friends” band. Oh, and by the way, Mr. and Mrs. Potato head belong to Hasbro, not Disney, so both companies could easily come after this Etsy seller.
Another absurd disclaimer I often see floating around Etsy is where the shop owner openly admits that they do not own the rights to the copyrighted material on which their wares are based, but that it’s all good because you’re just paying them for the time they spent making counterfeit products. As above, I’ve highlighted the problematic statements.
This type of disclaimer is totally useless in protecting the seller legally. If anything, I would argue that it could actually result in even more legal trouble if they get caught, since they are fully admitting that they know they don’t own the legal rights.
Conclusion: Tread Carefully
If you search blogging, writing, or crafting forums, you will likely see a myriad of conflicting advice. In my experience, such advice tends to take one of two extremes: either fear-mongering that ignores your fair use rights (“Don’t ever use someone else’s photos in your blog – EVER!”) or point-blank wrong green lighting of bad behavior (“Just add a disclaimer to your Etsy listing, and you’re fine!”).
My advice? Do your due diligence, and trade very carefully,
I loved getting a question on a specific situation in last week’s post, so I’ll pose the invitation again here: If you have any burning questions about IP law, please send them my way! I love doing research!
Until next time,