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Watts Legal: Feb 02, 2014

Question: I’m quite crafty, so I’ve been making and selling ornaments and clothing accessories on a website called Etsy. One of the things I make is a clip-on bow with rabbit ears sticking out of the top. It’s really cute. I discovered that another Etsy user is mimicking my bow, copying it almost exactly and selling it on her own page. I emailed her and asked whether she came up with the idea on her own, or if she got it from me. She said she just did a Google search for “bow ideas,” found mine (which she thought was unique) and recreated it with her own supplies and started selling it. Can she do this? Can I stop her from selling a bow that looks a lot like mine, almost to the point of ripping off my idea? Doesn’t it violate my copyright?

— Melissa R.,

Davis, CA

Answer:

You probably cannot copyright your rabbit ears because the idea is not sufficiently original. I’ll get back to this in a second, but first I need to explain the difference between an idea and the expression of that idea.

Although you automatically own a copyright in any statement or creative piece of art you commit to a fixed medium, you are unlikely to own a copyright in your rabbit ears, because “rabbit ears attached to a bow” is only an idea. When you create a work of art, you cannot own a copyright in the idea, but only in a particular expression of that idea.

For example, the Twilight books are about vampire love. Vampire love is the “idea.” But vampire love is also one of the primary ideas behind the Blade movies, True Blood TV series and Interview with a Vampire novels. If we elevate vampire love to an additional level of abstraction, we could even argue that “undead love” is the real idea, which encompasses AMC’s The Walking Dead and the weirder chapters in House of the Spirits, that old masterpiece of high school required reading. You see the problem with copyrighting an idea? None of these could ever get made if we allowed authors to copyright ideas. We would miss out on a lot of expressions of vampire love.

And that’s what is copyrightable: expressions. If vampire love is the idea, then a specific Twilight book is the expression of that idea. Werewolves in Oregon feuding with superfast pale guys with twinkling skin who refuse to sleep with high school kids — it’s all this combined, not vampire love alone, that makes Twilight the cultural abomination it is. Twilight author Stephanie Meyer owns a copyright in her characters, her particular expression of the vampire love idea, but she cannot stop another author from making his/her own art based on vampire love.

In your situation, you want to copyright your rabbit ears attached to a bow. “Rabbit ears on a bow” would be the idea, not the expression. Your particular execution of that idea would be the expression, the unique part that’s copyrightable. So if you scribbled a doodle on the ears, you would have a copyright in the doodle. If this other Etsy person used your doodle on her own rabbit ears, you could register your copyright with the U.S. Copyright Office and then sue her. Unless she is copying your original doodle, you do not have a case.

This brings me to the problem of originality, which I mentioned at the outset. You can only copyright original expressions of an idea.

If you were the first person ever to join rabbit ears with a bow, it’s possible that you could try to file for a design patent in the rabbit ears, but it is also unlikely to succeed.

Inventors can register a design patent to protect the non-functional, ornamental aspects of an otherwise functional object. The most recent example of a design patent lawsuit involved Apple suing Samsung for creating phones that infringed design patents on the iPhone. The functional innards of the iPhone —  the microprocessor, memory, or software — were not really at issue. The lawsuit came down to Samsung’s use of a phone casing that resembled the “rounded rectangle” of the iPhone. The phone was functional, the rectangle was not, but the design patent still prevented Samsung from copying the rectangles.

For your rabbit ears, you would have to argue that the rabbit ears are original and not related to the function of the object. Since the “function” of a bow/rabbit ears combination seems to be “look cute on someone’s head,” distinguishing form from function would prove difficult. A patent is probably not the way to go.

Writing this other person a letter might be the easiest way to resolve the problem. Ask them to change their product, or at least give you credit for it. If they won’t, and you still think you own a copyright in your rabbit ears, you can e-mail Etsy’s legal department. Their contact information is at etsy.com/help/article/482.

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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