Tuesday, June 7, 2016

On the Subject of Trademarked Logos, Images, and Other Intellectual Property

Graduation orders have trickled to a stop, but this is a relevant topic any time.  When I first started my shop, and in particular when I started making my graduation exploding box cards, I did not give a thought to using logos or graphics from the internet and whether they might be trademarked or copyrighted.  Starting out, I was just making cards with local school graphics, and it didn't occur to me that it might be a problem.  However, since joining Etsy in 2010, I have made an effort to spend time in the user forums, where I have learned a lot about many issues involved with selling on Etsy, and as it happens, trademark violation is a huge issue.  There are thousands of discussions about how some of the larger companies, such as Disney, Harley-Davidson, and Tiffany, are vigilant about violation of their trademarked materials (you can't even describe something as "Tiffany blue", come to find out.)  As it happens, many colleges and universities have similar protections on their own logos and other graphics, especially the larger, more notorious schools with big athletic programs.  Thankfully, I became aware of this early on when I began selling my graduation exploding box cards, and have made an effort not to be in violation of any school's policy on use of their logos.  Unfortunately, it's not always clear, and that's where I run into uncomfortable situations.

With school logos, my usual procedure is to first look at the school's website to see if they have a brand guideline.  Many of the larger schools have a document that describes everything from the exact fonts and colors in their official brand, to information about permitted uses.  Some have a request form that can be filled out and submitted to request authorization to use the materials, but most that I have dealt with do not.  In those cases, I have to search the website for contacts in their marketing, public relations, or branding department and send an email requesting permission to use their logo.  I would estimate that the rate of response is about 50/50: half of the time, I get an email back granting me permission, and half the time I get no response at all.  Only once have I received a message denying permission.  If I get no response, I will not use the logo- I will only use it if I can document that I have permission to use it.  It is disappointing when I can't use the logo, because most buyers do want it used on their products, but most are very understanding about this.

You might ask, what's the big deal, anyway?  Would some big university or company on the other side of the country (or world) really care that some small-time paper crafter on Etsy put their logo or image on a customized greeting card?  The answer is: I don't have enough money to find out the hard way.  In other words, if I use an image without permission, I am risking a lawsuit.  The fact is, logos and other trademarked images are protected by law as being the property of the trademark holder, and many can and will do what they have to do to protect their property rights.  There are a number of companies that are well-known for doing sweeps on Etsy for sellers using their trademarked property illegally.  They file a DCMA (Digital Millennium Copyright Act) notice with Etsy, and Etsy must comply by taking down the offending listings.  Etsy has a 3 strikes policy regarding violations of trademark or copyright- if a seller gets 3 strikes, their shop is shut down and they are not permitted to reopen.  Period.   Check out the Etsy user forums any day, and I guarantee you will find at least one post from someone complaining that they were shut down for trademark/copyright violation and don't know why.  Ignorance is not bliss in this case- Etsy considers it the responsibility of sellers to know and comply with the laws.

I have been asked to use materials that I do not have permission to use, and while I hate it when I can't give a customer exactly what they want, I simply cannot take the risk.  Some may view a transaction between a buyer and seller as private, so what's the harm?  Well, the thing is, once the product leaves my hands, it is no longer private- it is in the hands of the buyer, and the seller has no control over what happens with that product or who sees it.  All it takes is one social media post with a photo of the product, and the audience is suddenly much wider than just the buyer.  While it's true that you can find thousands of sellers on Etsy willing to take that chance, I simply have never been comfortable with it.  And it's not even only about the risk involved, although that is a major factor.  But also, I've seen the shops that are chock full of designs that include trademarked materials from tv shows, movies, etc.  Knowing the law, and that these shops are blatantly violating it, cheapens the value and the name of that shop, because it's basically stolen merchandise.  They are literally stealing from the trademark owner by profiting from the use of that material.  I hold myself and my business to a higher standard than that.  I have built my shop and my reputation as a seller on honesty, class, and integrity, and am not willing to cheapen it by illegal use of someone else's intellectual property under any circumstance.

I have turned down several requests to make exploding box cards with Disney and other trademarked materials.  Yes, I lost money that I could have made, but my conscience is clear and I can sleep at night.  As complicated as copyright and trademark law is, that really is what it comes down to: how I feel about the integrity of my work and my shop.  Maybe only someone's immediate family would see the product that I make for a customer, and no harm would come of using that trademarked Harvard or Disney image.  But I can't set that precedent, because that might not be the case with the next one.  Or the one after that, or the one after that.  I have a firm policy, and just can't cross that line, not even once.

As disappointing as it is when I can't use a logo or other image, it's also an opportunity to push my creativity and find something else I can do instead.  That has resulted in some things that I am truly proud of, and that is what keeps me as a crafter, and my business, moving forward and continuint to innovate.  As Dumbledore said in Harry Potter and the Goblet of Fire, sometimes we have to make a choice "between what is right, and what is easy", and in my business, as well as in much of life as possible, I choose what is right.