#5 - How Etsy, Redbubble and DeviantArt approach Fan Art
The following article is a transcript of Episode 2 of the Fan Art Series on Don't @ Me Podcast. ✨Listen Here✨
Disclaimer: I am not a lawyer, have never or do not have the intention of studying law, therefore I’m not qualified to give legal advice. This is just presenting research and providing commentary. Please seek official legal advice for thorough information and representation if you want more information about anything said in this podcast.
Heya and welcome to episode five of the Fan art series on Don’t @ Me!
I’m your host, Mikaela Copland and this session is going to look at the popular platforms of Redbubble, Etsy and Deviantart.
So, we’ve already explored the muddy waters of companies and celebrities both loving and hating fan art. And how it exists when technically copyright and trademark law are there to stop it.
Let’s now move onto how websites like Redbubble, Etsy and DeviantArt deal with fan art, because as I’m sure you’ve seen, fan art THRIVES on these platforms.
Along with Redbubble, it’s a very popular platform for artists to sell their work. Etsy is a bit of a 'free for all' platform, you can find literally everything there and it’s probably hand made.
Their infringement procedures are very serious and often final.
Before we move onto their process, let’s look at who is sending the copyright infringement in the first place. More often than not, it’s not the actual celebrity or business filing the copyright. It is the licensee.
For example, let’s say in my fictional world, Live Nation (an events promoter and venue operator) has the rights to produce Bruno Mars merch. Bruno signed a contract to give them exclusive access. Then Live Nation sees you are selling Bruno Mars merch on Etsy.
Well that diminishes the standing of their exclusive rights. Therefore, they can go to Etsy and say “Hey! I’m the only one with the rights to use his trademark! They’re not allowed” and poof, your shop or item is taken down.
Etsy have dedicated themselves to “removing material cited for alleged intellectual property infringement when provided with a proper notice.”
To submit a copyright infringement claim, you need four things. Let’s break them down.
A signature of a person authorised to act on behalf of the intellectual property owner whose right has been allegedly infringed upon. Signatures may be provided electronically by typing your name. Now Etsy isn’t Sherlock Holmes, so I’d like to know how they really verify a signature when you can just type a celebrity’s name...
Identification in sufficient detail of the work allegedly infringed upon. Aka what the person has specifically used in their work that infringes on their copyright.
Identification of the allegedly infringing material on Etsy including the specific location of the material so that Etsy can find it. This is an easy one, a URL to the shop or item.
The name of the intellectual property owner and contact information for the notifier, including name, address, telephone number, and email address. Again, just providing details for contact purposes in the claim that gets sent to the infringing party via email or Etsy inbox.
A statement that the notifier has a good faith belief that the material is not authorised by the intellectual property owner, its agent, or the law. This means they have to be like ‘I’m pretty sure this person didn’t get permission from the copyright holder’.
A statement that the information provided in the notice is accurate, and under penalty of perjury, that the notifier is authorised to make the complaint on behalf of the copyright owner.
So if you look carefully, the person lodging the complaint doesn’t really have to prove with actual evidence that they have authorization to make the claim. Etsy say they “may”, key word “may”, ask them for documents such as identity verification of the reporting party to prove their claim, so it’s not guaranteed.
Similarly, they may reject notices that contain information they believe is false, fraudulent, incomplete, or otherwise submitted in bad faith.
From the experience of friends, Etsy will side with big corporations and celebrities, Etsy will take down the listing with the infringing trademark. E.g. every listing with the phrase Bruno Mars would be taken down.
But what if they have made a mistake?
Well, they have a counterclaim section to dispute it.
For example, if your listing is a photo of your dog Bruno, and they think it’s Bruno Mars related, then you would have a case for putting in a counterclaim through Etsy. Similarly if you have documented permission from the copyright holder, you can submit this to prove that this was falsely taken down.
Etsy have made a statement saying that they “can’t speak on behalf of intellectual property owners, nor is Etsy in a position to offer legal advice or make legal determinations whether a shop’s content infringes someone else’s intellectual property."
This basically means once Etsy removes your item, and you don’t have permission from the copyright holder, you have to contact the lawyer who filed the infringement personally. When that’s big businesses or celebrities, it’s unlikely you will even get an answer let alone the time to discuss the removal with them.
One celebrity that went on a trademark ‘rampage’ as Billboard called it in 2015 is Taylor Swift. She is super protective over her trademarks and likes filing them for phrases she makes famous such as “This sick beat” and “Party like it’s 1989.” (The article has been deleted since recording however here is a similar one from Buzzfeed)
Personally, I think it’s a little over the top.
However she has been sending cease and desist letters since 2013 to fans making merch on Etsy with any of her 13 trademarks. She’s even trademarked her initials, as if nobody else in the world has those initials. Moral of this case study is to check the trademarks of a celebrity or business thoroughly as they can often surpass their registered name or character.
To save my breath, they have a very similar policy to Etsy. In a more user-friendly statement they say “Redbubble is a community built on respect and recognition of artists. We ask, rather we beg, that you remember this when you are posting work on Redbubble.”
They have the same steps as Etsy in lodging a claim, don’t provide legal guidance, but have a counter claim process too. However their explaining of the above is easy to understand and even includes cute illustrations, so bonus points to them.
What makes them stand out is that a fan art program. It’s on a whole other level. Quoting Redbubble “For the first time ever, you’ll be able to sell official fan art on Redbubble."
They have a couple of steps to enter the program.
Firstly, you scan their list of brand partners. Good news is that they have big brands such as Adventure Time, Panic at the Disco and Jaws. Bad news is that currently half of them aren’t accepting new submissions.
Once you find a brand on the list that is looking for submissions, you check the brand guidelines and make your design with them in mind.
Once it’s ready, tag your work on redbubble, and check your inbox for the design to be reviewed and approved.
Personally, I LOVE this approach. I think it’s the way of the future. Especially as Redbubble is the middle man, they deal with the legal stuff and negotiate on the creators behalf so fan artists can do what they do best - design!
(Clarifying that the above means they talk to the original copyright holder to create rules for using their work, not that they offer legal negotiations on your behalf)
DeviantArt differs from Etsy and Redbubble, as it’s a place for showcasing art rather than selling it.
They have a very non BS approach to admitting fan art is allowed on their site: “The bottom line is: Just about anything that is on this site, on the web, on TV, on CD's, on DVD's, in books & in magazines is probably copyrighted by someone.”
They have an article that explains fair use and the best ways to respect copyright.
They also allude to artists actually liking fan art in the statement “Always respect the copyright owner and remember that unlicensed fan art exists only because the owner allows it.”
However, they also have a no BS approach when it comes to copyright claims, saying they will delete it immediately. Formally they state: “This is a legal requirement which we fulfill immediately; you will not receive an advanced warning and you will not be given an opportunity to 'fix it'.” Considering their whole platform is basically the forefront of fan art, I would say that their policy of immediately deleting is fair.
They give artists a lot of leniency. Their take-down process for copyright owners is the same as Etsy and Redbubble, so I’d say it’s standard practice.
Which is the best?
As you can see, these three big platforms have all slightly different ways of expressing their tolerance of fan art. It’s a no brainer for me that Redbubble wins this battle of the fan art platforms, however I encourage you to read up on whichever platform you decide to use and make sure you’re complying.
This episode is the last of the hard hitting stuff. You may be wondering where to go from here since I’ve reinforced how illegal fan art is. But don’t worry, the final episode is about your next steps as an artist.
If you have any questions you want me to research, please DM me on my Instagram @dontatmepodcast or via the contact form on my website. Catch ya in the next episode.