Artistic License, Copyright Infringement and the Nerve of Some People!

There I was.  Minding my own business when I received an e-mail from a friend who is not a member of Etsy.  He explained that an Etsy seller had pirated some copyright protected photos from his website, converted them into beadwork patterns and was selling them on Etsy.  

Since he isn’t a member of Etsy, he could not contact her through the Etsy convo system and had no other way of doing so.  He asked that I contact her on his behalf.  After assuring myself that he was absolutely correct.  There could be no mistake that the bead patterns were taken from his site.  I did. 

Here is what I wrote to her ….I have omitted the links and names so that the parties are not identified.  XXXX is my friend.  OOOO is the copyright infringer.

OOOO,
I am writing to you at the request of the Webmaster for the site XXXX

It is obvious that this pattern was taken from the clip art section of the XXXX site and you are requested to remove it as the site identifies that the features are not to be modified or shared in any way and certainly not to be offered for sale in a modified form.

Here is the link to the source of your pattern and the XXXX instructions for how their clip art may and may not be used.
(Link provided)

It is also evident that your pattern, (Etsy link) was taken from the XXXX site.

Here is the link to the source of your pattern and again, it clearly identifies that it can not be modified for use in this manner.  (Link to the original piece provided)

The Webmaster respectfully requests that you remove these items from your listings to avoid further action on behalf of the XXXX site.

Joni Stinson

This is her response:

How DARE you accuse me of this! I have NEVER seen that website before. I
created those patterns YEARS ago. Just because the animals maybe
traditionally claimed by American Indians DOES NOT mean someone stole them from any website. Get over it! I'm reporting you to ETSY. OBVIOUSLY you cannot be a rational or professional person. Try and take action against me and I'll
reciprocate.

My Response:

I told you that I was writing on behalf of the Webmaster for XXXX.
He is not a member of Etsy and chose not to join just to contact you.

You are welcome to contact him yourself at
(E-mail for XXXX provided here)

I will share your convo with him.

Joni Stinson

Then she wrote this to me:
I don't care who you say you are representing. YOU sent the obnoxious email. And I'm reporting YOU to ETSY.

I forwarded her convo’s to my friend.  As a result, he joined Etsy and wrote this to her: 
Greetings,

I am writing to you because you are using some of our images for commercial purposes. I did ask Joni to write to you and ask for you to remove them as I did not want to join a site just to contact someone, but from seeing your reply to her, it has left me no option than to write to you myself.

You say that you've not taken them from the site. Lets say that I believe that for now.  There is no question that you took them from *a* site that was displaying our work. There is NO WAY that these came from your own creational mind. Compare the bison images... they even have the same markings.  Ours were taken from a PHOTOGRAPH of the actual piece. Same for the bear.

I could have just contacted Etsy and raised a DMCA against you, but there is a strong chance that you could lose your etsy account, and I do not wish for that. But if you refuse to remove them, I will raise a DMCA against you.

Where ever you got these from, they originated from our site and we do not allow them to be altered, or for them to be used for commercial purposes.

I hope to hear from you every soon.
Kind Regards
XXXX
copyright holder to these images.

She responded to him:

Thank you for the lecture. . I assume you think that's not rude, either. You ask another Etsy seller to send me an email calling me a fraud and unethical without asking for an explanation....

I consider THAT RUDE. I had no idea who Joni was or if she really spoke for anyone or if you even had copyrights to those images in the first place. I still am taking your word on that.

And in your email you imply I'm a liar....THAT's definitely rude. I DID NOT take those images from your web site. I got them from somewhere, maybe they were posted somewhere else and I believed they were copyright free.

You took NONE of that into account before you threatened me via Joni.

And for your information, since my husband is a lawyer, I CAN copyright my patterns which is what my listings say.

Since you probably won't take my word for it, have a look at my Etsy store just to make sure the patterns are gone and I'm not lying, ok?

So, there is no misunderstanding, I deleted all patterns and work on those images. Sorry, I can't furnish you with proof of that.

NOW the matter is CLOSED.

OOOO

XXXX’s subsequent reply...

OOOO,

If your husband is a lawyer, he will know that you cannot copyright someone else’s work. Nor can you copyright something that is in the Public Domain, freeware, shareware etc etc.

FYI I have not gone back to the site, so I have taken your word for it.

hmmm, this is the thanks I get for NOT getting someone into trouble. I know next time, not to bother contacting the seller, but to go to the site owner.

I have read the email Joni sent, and it was polite and to the point. Ask your husband on how threatening legal letters can be, and then you may see how polite both Joni's and I were. Neither does it state in her email that you were a fraud or unethical. She said..."It is obvious that this pattern was taken from the clip art section of the XXXX site and you are requested to remove it as the site
identifies that the features are not to be modified or shared in any way and
certainly not to be offered for sale in a modified form."

She didn't say you took it, she said it was taken. And it is obvious. She also gave you the URLs for you to double check.

She also said "The Webmaster respectfully requests that you remove these items from your listings to avoid further action on behalf of the XXXX site."

Did you notice that ? ... respectfully requests ... and that is us being rude it it ?

I wonder how polite you would be if someone took your possessions and started selling them.

Regards
XXXX

She wrote to him again:
I am sorry you feel this way and I'm sorry you've felt you've needed to express yourself so rudely, both directly and through a third party. I have NEVER knowingly based my work on anyone's copyrighted images. I do use copyright free images and I am meticulous about ascertaining the copyright on all images. Most of my work is from my own digital artwork or photographs.

I have researched where I got those images, but it was so long ago, I don't have records. I know I made the patterns in 2008. Because of their similarity to what you say are YOUR copyrighted designs, which for now, I'll assume is true, I am removing the patterns from my site.

By doing this, I am not admitting to copyright infringement in ANYWAY. However, I know you can make trouble for me and I believe you would.

I hope you're happy now.

OOOO


XXXX’s reply:

Greetings OOOO,
Thank you for getting back to me, I do appreciate it. I am however surprised that you thought that I, or Joni, was rude.

I spend approximately 30 unpaid hours a week tracking down people who are violating our copyrights or copyrights to our clients. I was already busy dealing with DMCAs with other sites when I asked Joni if she could contact you (as she was an etsy user) and ask you to remove them.

You have to remember I deal with a lot of sites, and to sign up for each one, just to contact the violator becomes more time consuming, and a PITA to remember all the passwords etc. That is why I asked her.

I cannot see anywhere where I was rude in my email to you. I cannot change color on my email settings, nor can I make italic text, so anything that needed to be emphasized, was done in capitals. I had to do that because you denied that they were copied from our work, even though Joni had sent you the links to the originals.

Nowadays, we do not normally contact the violators due to the reasons I gave above. Normally, we will contact the hosting provider instead. If I had done this option with you, there could have been a good chance that they would close your account.

You say that you made the patterns in 2008. I have dug out the psd files I have for these, and the bear was last worked on at Jan 01 2003 The bison was last worked on at 4th Jan 2004

On a side note, you say..."I do use copyright free images"
You do realize that you cannot copyright something that is already copyright free. Same goes for public domain images. If they are PD, then they cannot be copyrighted by someone.

I can understand you not having records, but whoever you asked to use them, it wasn't from us, and whoever gave you permission, did not have the rights to do so.

Yes, I was annoyed seeing our work being sold. And yes, I was annoyed to see someone else claiming copyright on it. (Wouldn't you be?) But I was more annoyed when I saw your reply to Joni. Even after been shown the evidence, you were denying it. I was expecting a "oops, sorry, I didn't realize"
kind of email like we normally do.

I am sorry that you thought I was rude. I was polite, but firm. I even signed off with "Kind Regards"

Maybe I should have just contacted Etsy with a DMCA and saved myself a lot of time.

We do not want to sue you, nor do we want you to lose your account with Etsy. We just wanted our images removed from the site because they were being used for commercial purposes.

If they have been removed, then the matter is closed.
Kind Regards
XXXX

Did she use copyrighted work to develop her patterns?  Yes

 Were we rude or accuse her of fraud?  No

 Have I been reported to Etsy?  I don’t know.  But I don’t believe she has a case.  But if I have been reported, this blog will be my defense. 

 Do you know what DMCA is?  I didn’t, but I do now.   You can read all about it here: http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

 Will I provide you with her store name?  Yes, please don’t buy patterns from her.  Contact me.

 Would I do this again if requested by a friend?  In a heart beat!