Question: How is it that there are so many shops online that are selling items that obviously infringe and they do not get shut down? Some of these shops have been open for years; how do they get away with it?
Answer: I see this question asked frequently online. Sometimes it is asked by people who are legitimately concerned by and frustrated about the "infringement pollution" clogging up search results on sites like Etsy and Amazon. Other times the question is being posed by someone who is wondering if they too are allowed to do what they are seeing "everyone else" do. I also see this question asked by people who got caught infringing and are confused as to why they got shut down while other, often bigger, shops that are doing the same thing seem to get away unscathed. Let's take a look at why this may be happening.
They Just Haven't Been Caught Yet
This is probably the answer that is most likely to be true in any given infringement scenario. Because infringing works on the Internet have to be sufficiently identified and objections lodged individually, getting infringing items removed is literally and figuratively a process and it takes time.
If the work being infringed upon is owned by a small artist or firm, they may very well not even be aware of the infringing. The Internet (and, you know...the world) is a very big place and, unless an artist is scouring the world wide webs fairly consistently for their work, they may never become aware of copycats out there.
But, let's be real, it is usually not the small-timers getting knocked off that inspire this question; it is the huge companies like Disney, Nintendo, the NFL, etc. These huge, wealthy companies seemingly have the means and manpower to shut down any infringer but, for a company with significant creative assets, it is almost impossible to get rid of all the the infringing works out there. This is not because it is difficult to find but because of the sheer volume of material and the realities of the time and energy it takes to deal with infringement on such a wide scale. This necessarily leaves some items available while others are removed.
A large company may handle infringement by doing periodic venue sweeps. For instance, if Nintendo paid a company to remove 500 listings from Etsy every month before moving on to Amazon or Wayfair, etc., then that is the amount they will address. The other 30,000 or whatever listings will remain until the next sweep of the venue. These are all hypothetical numbers but it is an example of the type of process that may result in infringing listings remaining live even for a long time.
Even if a company could find and eliminate every infringing listing on a venue, copyright management can be like a massive game of whack-a-mole; you remove 100 listings and 70 more pop up overnight. For larger creative companies, copyright infringement removals are literally a never-ending process that likely just has not caught up with whatever infringer you may have happened upon when this question is raised.
The Copyright Owner Does Not Object to the Use
Sometimes, a copyright owner knows of a use but does not object to it so it remains available. When it comes to policing infringement, copyright is not like trademark. If you want to keep a trademark perpetually and maintain it in good standing, you have to make an effort to police and curtail infringement on that mark. But, with copyright, an owner can allow what would otherwise be infringement if they so choose for as long as they choose.
For instance, and we are picking on Nintendo today, but let's say there is a website where Super Mario fans gather and post "fan art" related to the game. Nintendo can choose to ignore this potential infringement for as long as it wants. They might choose to do this because the site is good advertisement or there is goodwill at stake. Or they may just feel as if this particular infringement by fans poses so little harm to their financial interests that it is not worth pursuing. But, whenever they so chooses (as long as it is within the statute of limitations), Nintendo would be within its rights to put a stop to the fan art distribution.
So, an infringement can be purposefully ignored...until it isn't. Either way, as third parties, there is no way for us to know for sure whether a company is choosing to overlook an infringement or when/whether they may choose to stop doing so. It is always risky to engage in infringement but, until a copyright owner decides to enforce their rights, the infringing items will remain available.
The Work is Not Actually Infringing
Not all instances of using someone else's intellectual property in another work is automatically infringement and/or illegal. There could be any number of reasons why what we are seeing does not actually run afoul of the Copyright Act or the rights of the copyright owner. This can happen for a number of reasons. Let's look at a couple.
The Work is Being Used Under License
If you encounter a work that you think is infringing it may, in fact, be under license and used with permission. A copyright license is a type of contractual agreement that allows the licensee to do specific and agreed upon actions with a copyrighted work. Now, let's be honest, if you see someone random on Etsy with a shop full of low-quality Disney knockoffs, the chances are low that they received permission to use that property. But, our feelings aside, we are generally not privy to the contractual agreements between any two entities and cannot assume that something that looks improper is in fact not allowed.
There May be a Defense That Applies to the Use
There are multiple defenses available that may make something that looks like infringement allowable. Fair use and the first sale doctrine are a couple of the most common ones. You can read up on these in depth here and here. There may also be certain uses such as with licensed fabric that, if done properly, may not actually infringe.
The Takeaway for Crafters
It is super easy to do a search for something like "Pokémon" on Etsy, come up with thousands of search results and make assumptions about the legality of the usages you see. But, bare assumptions can be dangerous. If you see "everybody else doing it" and, as a result, think it is okay to do as well, understand that you risk being shut down along with any other infringers. Additionally, the uses you see may not be infringing for reasons you cannot contextualize just from looking at an item. So, best practice? Get educated on the subject (hey I have a book that can help with that!) and make no assumptions about how someone else is "getting away with" what they are doing when it comes to intellectual property usage.
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