Last week the blog Fashionista wrote an article about Guatemalan artisans and copyright. The gist is that they plan to assert copyright claims against Etsy sellers (among others) for infringing upon their designs. Since a lot of people sent it my way, I wanted to take a moment or three to think through some of the possible legal issues here.
Thinking About the Legal Issues Involved with Guatemalan Artisans and Copyright
I want to start by being clear that this article will only discuss the legal issues involved with the issues surrounding this copyright issue. I am purposely leaving aside the ethical or moral issues involved and focusing on what the law says and how it might interpret their claims.
So, a few points:
- Copyright law protects creative works. We can assume that most of the works produced by the Guatemalan artisans are creative works and on first glance, merit copyright protection.
- Asserting a copyright claim in traditional works might be tough, though. Many of the artisans base their designs on traditional patterns and designs that were passed down from earlier artists. While they might make modifications to these designs, it might not be clear whether or not any of these artists have a copyright to these traditional patterns or designs.
- Copyright registration could pose another hurdle. I am going to guess that many of these artisans did not receive a copyright registration for their works. Not having a copyright registration could definitely limit the amount and types of remedies that these artisans could receive, and also might prevent them from filing suit.
- The first sale doctrine also poses a hurdle. The first sale doctrine is a concept in copyright law that means that once you purchase a physical copy of a copyrighted work you can sell that copy to a third party without infringing copyright. That’s why you can sell used books without getting sued. So if the Etsy sellers bought the copyrighted works, they will generally be free to resell them without copyright issues.
- DMCA takedowns could backfire. So the main tool for getting infringing materials off of the Internet is the Digital Millennium Copyright Act (DMCA). This allows copyright owners to file claims with sites that host infringing content, and get the site owner to take down that content in order to avoid liability. However, there is a provision in the DMCA that imposes penalties against parties who make false or unwarranted DMCA claims. If the group Ethical Fashion Guatemala (mentioned in the article as the group who will assert copyright in favor of the artisans) uses the DMCA to takedown Etsy sellers without the right to do so, a can of worms could be opened here.
- Not sure that Ethical Fashion Guatemala has standing to pursue these claims. I don’t know what kind of deal Ethical Fashion Guatemala has with the artisans, but they would probably need some type of actual agreement with the individual artisans if they want the right to act in the artisans’ favor here.
- Ethical Fashion Guatemala might be better served by building a brand. I don’t represent Ethical Fashion Guatemala, but they appear to be well-meaning. However, my personal opinion is that they would be better served by building a brand and trademark that embodies the principles that they espouse, namely fair treatment of artisans. Since a brand is ultimately a promise with customers, their efforts might be better spent creating a resource for people who are interested in buying fairly-traded goods from Guatemalan artists.
OK. Obviously, nothing here is meant as legal advice of any kind. It’s really just my off-the-cuff remarks about an interesting article that I read. Would be curious to hear more from other copyright attorneys or interested folks on the Facebook post about this article.
More questions about copyright law or using the law to build a business? You can always get in touch