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Two of my Etsy items were taken down. Claiming copyright.

Two of my Etsy...

Two of my Etsy items were taken down. Claiming copyright. However she cannot claim a copyright on this type of design. A rectangle border on top and bottom - Familiar Symbols and Common Phrases.

Lawyer's Assistant: When was the work first made public? Was a copyright registration obtained?

She opened her shop about 3-6 months ago. She does not have a copyright on her items.

Lawyer's Assistant: What documentation do you have?

I asked her for your copyright, she did not provide. Because one cannot copyright a rectangle border.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

This is her claim: Offender took the top from one of my flyers and bottom from another flyer of mine and made hers. 3 of her items are an identical copies from other owners on Etsy and Creative Offender took the top from one of my flyers and bottom from another flyer of mine and made hers. 3 of her items are an identical copies from other owners on Etsy and Creative Market.

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Answered in 4 minutes by:
8/14/2017
JD 1992
JD 1992, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 34,389
Experience: 18 years experience
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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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If you received an email regarding a phone call for an extra price that comes directly from the website and not from me and I have no control over the sending of the email. I don't take part in the telephone program and only work through this format and in your case this format should be sufficient.

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I read your facts, is there a specific question with which I can assist?

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Customer reply replied 11 months ago
LanaMadeDesigns is claiming copyright to design elements from her shop:
https://www.etsy.com/shop/LanaMadeDesigns?ref=search_shop_redirectThe elements are: border on top, border on bottom or no border. As well as how she layout out her listing images and common phrases.Etsy removed 2 of my items, one had a similar layout and one had a border on top and border on bottom and had the same color.I submitted a counter. I wanted to confirm copyright. Does a border she is using fall under Works Not Covered By Copyright
Words, Phrases, or Familiar Symbols
Customer reply replied 11 months ago
This is what she submitted to Etsy:
Offender took the top from one of my flyers and bottom from another flyer of mine and made hers. 3 of her items are an identical copies from other owners on Etsy and Creative Market.
and:ALL of my Open House signs include 4 SIGNS that are laid out in a certain way in the listing photos. Offender copied everything down FROM WORDING, TO SIZES, TO LISTING PHOTOS. Sickening.RE: Open House Signs - sizes are standard to the printing industry, wording is common to the real estate industry. Layout was similar, but not under copyright. Side by Side rectangles.
Customer reply replied 11 months ago
Attached is my item that she is claiming is the same. However, Etsy didn't remove this item, they removed another by accident. She contacted me and demanded I remove the item.She wrote:
Debating my actions with those that would steal my designs has proven to be fruitless. Therefore, CEASE and DESIST all items that derived from my items, my designs, my layouts, my work. I will report and continue reporting the infringement of my intellectual property. I see this as a very serious matter not to be ta***** *****ghtly. I will not tolerate other shops taking my designs and undercutting my prices to make a quick buck. This is my livelihood. Not only are you stealing my designs you are also stealing my time.In the future please refrain from using my shop as your "inspiration". Stealing my designs in whole or in part will be noted and reported.Remove the following flyer as it is a combination of two of my flyer designs at my shop. I received confirmation from Etsy that your flyer was taken down, but I see that it is still up.
https://www.etsy.com/listing/549115231/real-estate-flyer-template-real-estate?ref=shop_home_active_1Lana
Customer reply replied 11 months ago
This was my layout she is referring to - see attached. Which I actually changed.

Before any legal expert can tell you whether they believe that an item does or does not violate another item's copyright status, it requires a lot of research since you have to go back and if they have filed a copyright application look that over or if no copyright application was applied for then you have to research all copyright filings for similar items plus the case law for all similar copyrights.

All of the items you mentioned regarding the borders and how phrases are laid out could result in the granting of a unique copyright. While I can't answer to her or your specific border but I can tell you that a border can be copyrighted just as a pattern can be.

The topic you mentioned "works that can't be covered by copyright" is a very general one and cannot be relied on in each case. The only way to know for sure whether you are right or wrong is for a judge to rule on your issue.

As the click-throughs on posting your question explains, the experts on JustAnswer are not allowed to do document reviews as a part of the question. You can post the documents as an additional services question and see if an expert will pick up and give you a quote on reviewing the document. However, I don't do that for a number of reasons although some experts on here may.

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Customer reply replied 11 months ago
I did ask her 2 times for her copyright. She could not provide it.
Customer reply replied 11 months ago
The border is a solid 1/2" and 1" rectangle. No pattern is involved.
Customer reply replied 11 months ago
One reason I need to use a border on top and bottom is because I am creating editable PDF versions of my templates and it's best to have a solid border on top and bottom.

A copyright can exist without it being filed with the copyright office. For instance. when I write an article or book the copyright protections attach the moment I complete the writing. Filing it with the copyright office simply provides a way to accurately demonstrate when the copyright begins as well as allowing the copyright owner to recover statutory damages for a violation.

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Customer reply replied 11 months ago
You are saying, I can get a copyright for a 1" border on top and bottom of any template. I find that hard to believe.
Customer reply replied 11 months ago
I was told this morning by another IP attorney, graphics and art copyrights are hard to obtain - as it does need to be a creative and unique piece of art or graphic. Is this not true?
Customer reply replied 11 months ago
a copyright can protect original creative works, such as books, songs, photographs, and computer programs

That is not what I said. I said that every copyright has to be looked at on its on facts. You are asking a very broad question when issues of intellectual properties are decided on very specific facts. As I said, you have to look at the entire thing and review what has been copyrighted in the past to know whether the courts are inclined to let that happen or not.

As far as your question "I was told this morning by another IP attorney, graphics and art copyrights are hard to obtain - as it does need to be a creative and unique piece of art or graphic. Is this not true?" That is not true. They have to be unique but they don't have to be complicated in their creativity. While the New York Yankees baseball cap symbol is more of a trademark issue they certainly could have asked for a copyright under certain conditions and that is just a letter N stamped over a letter Y. The New Orleans Saints have a fleur de lis emblem which has actually been in use for hundreds of years. They felt that by adding a white border outline by a black border is became protected under the intellectual property laws.

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You are correct. Books, songs, photographs and computer program can be protected by copyright. Needle point patterns, fabric designs, and many many other things can be protected by copyright.

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Customer reply replied 11 months ago
Can you please explaing this statement:
Works to which you have not contributed anything original or creative
Customer reply replied 11 months ago
Another question, If I came to you and wanted to copyright the attached, what would be your advise.
Customer reply replied 11 months ago
Sorry and attach this attached template in MS WORD or Adobe Acrobat Reader: That would probably best answer my question.

As I said I cannot review any attachments but as I explained earlier, before I can do any copyright work for anyone I would have to research the copyright archives to see if what you are requesting has already been copyrighted (or something close) and then I have to review the case law, again for the same reason.

This doesn't vary between one item and another. I have copyrights, patents and trademarks and this is the system I use when I doe the work on my own materials.

Generally the statement of "Works to which you have not contributed anything original or creative" means that you can't take someone elses ideas, not contribute to them in any way, and then declare them yours. You see this more in patent work than in trademark or copyright.

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Customer reply replied 11 months ago
Would Microsoft or Adobe allow one to use their application and copyright a design using their application?

Do you mean can you make a design using that software and then copyright the design?

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Customer reply replied 11 months ago
that is correct
Customer reply replied 11 months ago
that is correct, but use their software as part of the copyright. It is a template.
Customer reply replied 11 months ago
Can one copyright formatting - such as a resume template or real estate template.

In theory I guess you could but I've never seen it done. I don't think you can use their actual template because they are the one that developed it but you can copyright one you created.

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Customer reply replied 11 months ago
Thank for your time. I am satified here with your answers.Have a nice day,
Naomi

You are very welcome and I wish you the best with you endeavor. Please don't forget to issue a 5-star positive rating so I can get credit for my work.

JD 1992
JD 1992, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 34,389
Experience: 18 years experience
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JD 1992 and 87 other Intellectual Property Law Specialists are ready to help you
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Thank you very much for allowing me to assist you. While the answers I give can't always be "good news", since the law can't always be favorable to everyone, I do strive to be as accurate as possible and to answer any follow up questions to the best of my ability.

You may receive a survey of some kind in the next day or so regarding your experience here at JustAnswer. Please be advised that I am responsible for the content of my answers but not with the issues of website performance or anything other than the answer. I hope that you will consider issuing a Positive Rating regarding my service to you so that I can continue helping others.

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