Seller on Etsy had claimed ownership of Public Domain art

[beelzebomb]

My version of the artwork from the 1700s, John Henry Fuseli - The Nightmare, which I sell as a restored print, has been the subject of a takedown notice on Etsy from a fellow Etsy seller who has 'claimed' this Public Domain work under Etsy's 'Notice of Intellectual Property Infringement'.
Under DMCA compliance, Etsy just remove the item automatically.
I have the right to contact the perpetrator via email (done - it's just another seller, based in Turkey) - or I can submit a counter notice, where I have to sign the following:

"I swear under penalty of perjury that I have a good faith belief that the material was removed or disabled by mistake or because of misidentification of the material
I consent to the jurisdiction of the Federal Court for the judicial district in which I am located, or if my address is outside of the United States, for any judicial district in which Etsy is located, and that I will accept service of process from the person who provided the original notification or an agent of such person"

In this counter notice, there is nowhere to write in freeform why I think it is not under this person's ownership.

Here's the link to the Public Domain file: https://commons.wikimedia.org/wiki/File ... htmare.JPG.

What do I do next?

[AndyJ]

Hi Beezle,
Clearly the original painting is out of copyright as the artist J H Fuseli died in 1825. However this take down may have something to do with the claimed ownership of copyright in the digital image of the painting. Ordinarily such digital images don't get a new copyright because the photographer cannot put any of his own creativity into reproducing the painting. However there has been at least one case within the EU* where a museum won a copyright infringement case having convinced the court that the photographer used exceptional skill in ensuring a painting was faithfully reproduced and colours in the digital image exactly matched the original etc, and this skill, it was argued, was the creative element necessary to make a 'new' work and hence a new copyright. I don't think any UK or US court would ever follow this precedence. I obviously don't know if that was the grounds for this takedown, although I tend to think it was just an underhand way of removing the competion, because of course there are no consequences in law for making such false claims. Maybe Etsy could ban the other seller if it was shown that he was making a false claim, but I haven't checked their terms and conditions, so I don't know.

The way the DMCA takedown/putback process works is that if you file a counter-notice, the website (Etsy in this case) then reinstates the image and it is not up to them to judge the issue either way. They just step out of the dispute and they are indemnified against any further liability. It is then up to the complaining party to pursue legal action against you if he wishes to. Realistically, if you do submit a counter-notice I suspect the whole thing will just go away because you will have called this Turkish seller's bluff.

* Obviously neither Turkey nor the UK are in the EU so that case isn't particularly relevant. If the present issue involving Etsy was to be decided in a US court (because Etsy is a US company), the Court would be likely to follow an important decision known as Bridgeman Art Library v Corel Corp in which a photographic copy of an out of copyright painting was found to be ineligible for copyright.

[beelzebomb]

Thanks, this has been swiftly resolved. Etsy also give the complainer’s email to allow direct contact, & I sent a no-nonsense opinion of this action to him knowing he could not possibly own the rights. He backed down immediately, & it transpired his actions were against around 20 different Etsy shops, not just mine!
I can only hope Etsy penalises such misuse of the DMCA process, but I fear their abstention from all liabilities on such things will mean this amateur con artist will get away with it. Though he did admit to a flurry of angry emails such as mine.

[AndyJ]

Good result, thanks for letting us know.