If you are an artist/crafter and you sell your wares online, there is little doubt that you spend a healthy chunk of time writing titles and descriptions for your items. Indeed, depending on the forum, the words chosen for the title and description may be the very things driving traffic and visitors to your page or site. So, you can imagine that it would be quite upsetting to find that someone has come along and copied your titles and descriptions word for word. But, is there any recourse for this sort of theft? Well, like most copyright questions, it depends. Let's take a look at the types of questions you should be asking if your words have been pilfered.
Is the Stolen Wording Protectible?
In order to have a legal leg to stand on in defending your titles and/or descriptions, they must be protected by copyright or trademark. Now, if you've registered a trademark to the verbiage in question, good on you. If you have a good faith belief that your mark has been infringed, you can simply follow the venue's instructions for submitting a trademark infringement claim. But, more likely than not, there is no trademark protection in place as titles and descriptions are not inherently the type of brand identifying phrases that are usually worth trying to trademark.
So, what about copyright?
Product Names/Titles
For the crafter who sells online, there are two types of titles we need to consider. The first is a traditional title - the name of a product. Generally speaking, copyright does not offer protection to short phrases, slogans, titles or names. [1] This is because they usually do not have sufficient authorship to justify a copyright. Take my book for instance. "Copyright for Crafters" is the title of the book and, on its own, that name is not eligible for copyright protection. What creativity or originality can be found in such a short, factually descriptive title? Although I did not copy the name from anyone else, I also did not do enough creatively to justify having a creative monopoly on the phrase. The words are too common and unoriginal.
Descriptive Titles
The second type of titles to consider are the ones used on sites like Etsy. These descriptive titles are one of the ways that products are found in the search engine so the "title" of the product is usually a list of keywords separated by some sort of punctuation as shown here. Even though these sort of titles are usually longer than the title of a book or other product, if they are like that shown in the photo, they will generally not be protectible via copyright. Reason being, they are simply factual descriptions. I am not demonstrating much originality or creativity by calling an earring card an earring card. I mean...that's what it is. Facts are not subject to copyright protection. [2] Compilations of facts can be copyrighted but only to the extent that the selection, coordination, and arrangement of the facts are sufficiently original to trigger copyright protection. [3] But, choosing facts that describe what an item is, what it is made of, its size and quantity - this is likely not an original selection. To the contrary, these are the obvious facts you'd want to include in a descriptive listing title. So, titles like the one shown in the photo are unlikely to be protectible by copyright. This means that if someone copies your title, there is not much that can be done about this via copyright laws.
Item Descriptions
Item descriptions are more likely to be protectible under copyright laws than item titles simply because they tend to be longer and there is more opportunity to include protectible authorship. In other words - a description that includes creative and original wording can be protected but one that just outlines the factual properties of the item likely cannot. Take the following earring card descriptions for example:
Description 1
When I first started making jewelry, I wanted to find a card that was super study (100lb cardstock like these) but still elegant and on brand. So, I designed these cards. At 2"x3", they are the perfect size for shorter dangly earrings but you can also use them for studs or hoops. They are available in 12 different cardstock colors and, because they come in a quantity of 100, you don't have to worry about them running out quickly. My favorite paper is the linen white because it is so thick but the textured surface feels so high end. If you want to give your jewelry that "it" factor, get these cards!
Description 2
Quantity: 100
Cardstock: 100lb cover weight, 12 colors available
Size: 2"x3"
The first description is much more likely to be protectible than the second. It weaves the factual information in with a narrative that is original to the creator. The second one just states facts and is the obvious (and bare minimum) information to include in a listing for handmade earring cards. So, if someone comes along and copies the first description, the author would generally have a solid basis to try and get the copied information removed.
However, it should be noted that any copyright would likely not extend to each piece of the paragraph divorced from its context. Meaning, if someone were to steal one sentence and that sentence is not particularly creative on its own, then no copyright violation would occur. This makes sense when you think about it; a single sentence is much less likely to contain enough original content to merit protection.
This concept has been litigated numerous times in the context of music lyrics. When someone takes a line from a song and, outside of its context in a copyrighted work, it is just a common sentence with common words, it largely cannot be protected via copyright. A well-known example of this was the long-running litigation surrounding the phrase "Everyday I'm Hustlin'" from the rap song "Hustlin'" by Rick Ross. Those three words, even though they form an iconic line from a platinum-selling single, were not copyrightable outside of the context of the song. ("It is well established that copyright or literary rights do not extend to words or phrases isolated from their context.") [4] In the same way, if someone lifts an otherwise non-original portion from your item description, it is much less likely to qualify as infringement.
The Takeaway for Crafters
Although it may be frustrating to have someone take anything that you have produced, not everything can be owned and, sometimes, even blatant copying is not illegal. If the thing that has been copied from you is a short non-original phrase or is comprised of straight forward factual information, chances are, there is not enough there to file a copyright claim. But, if you have come up with a more in-depth, longer snippet that contains verbiage that is original to you, not just facts, that may form the basis of a copyright claim.
[2] Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340, 344 (1991).
[3] Id. at 358
[4] Roberts v. Gordy, No. 1:13-cv-24700-KMW, (S.D.FL. Sept. 15, 2015).
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