Intellectual Property Infringement

[a11n]

Hi,

Would anyone be able to offer some advice on Intellectual Property Infringement?

I have an online shop that upcycles old vinyl records and makes them into clocks and other things.

Two of my items on Amazon and Etsy have been reported and taken down by a Brand Protection agency working for a particular 70s band. They claim that the items are counterfeit, a reproduction, inauthentic or not authorised.

I have tried to contact the Brand Protection agency and explained that the items in question are handmade products upcycled from the original vintage record. And that we are a small ethical business that upcycles unplayable media that would have been discarded into landfill. And at no point have we counterfeited anything, we are simply giving discarded items a new lease of life.

Unfortunately, the agency ignores my emails and Amazon or Etsy will not do anything unless the agency retracts the claims.

So I'm stuck between a rock and a hard place. I'm just too small for them to do anything. I expect I just won't sell those particular items, however, as the law stands, am I actually doing anything wrong?

Thank you for taking the time to read this. I would be very grateful to get any advice.

[AndyJ]

Hi a11n,

Under the doctrine of the exhaustion of rights, re-purposing an article that you came by legitimately does not infringe any copyright in that item. And if you are only re-using the vinyl record itself, and not the sleeve, there is no copyright in the object in the first place. The only copyright would be in the songs on the record, but as they can't be played any more, that's not an issue.

However although the law is on your side on this, if the brand protection agency won't engage with you, it's hard to suggest a way forward other than confronting them head-on. Both Etsy and Amazon (like that of most of the big online trading and hosting sites) operate the policy that if you issue a counter-notice explaining why you have not infringed the intellectual property which is alleged, they (Etsy/Amazon) will re-instate the listing after 10 days, provided that the person who issued the take down notice has not by that point commenced court action against you. This complies with the US Digital Millennium Copyright Act requirements. When drafting a counter-notice it may be helpful to mention that the US equivalent of the Exhaustion doctrine is called First Sale doctrine and is endorsed by outcome of numerous court cases. In addition, because these companies are based in the USA it is worth noting that the law on copyright there includes a Fair Use exception which is much broader than that which applies, for instance, in the UK, and could well cover what you do, under the heading of transformative use. That said, it is worth re-stating that there is no copyright in a piece of vinyl in the first place.

If you also supply the album cover as part of the clocks etc, then the artwork on the cover will be subject to copyright, but the exhaustion/first sale doctrine still applies if the item has not been copied.

[Helenoran462]

I remember seeing clocks like that at Camden Market years ago... and I found a photo of them online. This was taken in 2013; I doubt that it helps, but maybe showing others are doing exactly the same thing might strengthen your argument?

https://www.bravoyourcity.com/story/col ... amden-lock

[a11n]

Thanks for the replies. I'm so relieved to know that the law is on my side.

I've submitted a counter-notice to Amazon and Etsy using your information. I'll let you know how it goes.

Thanks again for getting back to me.

[beelzebomb]

I’d be interested to know how this went?