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Etsy Misinformation Mavens
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quirke


Last Updated February 24, 2010

The comments here are not intended to be a negative reflection of the person or the products made and/or sold by the person but rather their terrible habit of posting misinformation.

quirke joined Etsy January 7, 2007 and is located somewhere in or near British Columbia. quirke, or Alexandra, specializes in jewelry and giving very bad information on the Esty boards. quirke appears to be more egotistical than many others and from postings appears to be anti-American while relishing the Yankee dollar.


http://www.etsy.com/forums_thread.php?thread_id=6007909&page=2

The first sale doctrine does not apply to derivative work. It merely states you can throw away or re-sell AS-IS a copyrighted item.

In the U.S. a derivative work must meet the criteria of "creativity" and "originality". In other words if your item is creative and original, it is a derivative work and you have infringed on copyright.

If it is unoriginal and uncreative, then you may not have infringed.

Tabberone is not a lawyer and that website is misleading. If you actually read the cases you will see they were settled because the items in question did not meet the criteria for derivative works.

Posted at 10:03 pm, November 16 2009 EST

Point 1 - The Copyright Act's first sale exclusion state the lawful owner may, without authorization from the copyright owner, "sell or otherwise dispose" of that copy. It does not state anywhere anything about it being unaltered. See 17 U.S.C. § 109 "Limitations on exclusive rights" also known as the First Sale Doctrine. We also have court cases to back this and quirke does not. In Precious Moments v La Infantil, 971 F. Supp. 66 (D.P.R. 1997), the court ruled cutting up and sewing copyrighted Precious Moments fabric into children's bedding for sale was not a derivative. See also Scarves By Vera, Inc. v. American Handbags, Inc, 188 F. Supp. 255 - US: Dist. Court, SD New York 1960, where the court allowed the defendant to make handbags out of copyrighted/trademarked towels.

Point 2 - A "derivative" must in of itself be copyrightable. An example is the motion picture "Gone With The Wind" is a derivative of the book by the same title. A dress made from a pattern is not copyrightable and therefore is not a derivative. quirke seems to ignore this point because ignorance is bliss. See LEE v A.R.T. Company, 125 F.3d 580 (7th Cir. 1997), see also Gracen v. The Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), see also Ets-Hokin v Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000), and see also Lee v. Deck the Walls, Inc, 925 F.Supp. 576 (N.D.Ill.1996).

Point 3 - A rather nasty lie told here. the cases were settled because the companies, M&M/Mars. Disney, Sanrio (Hello Kitty), United Media (Peanuts), Major Leage Baseball Properties, and Debbie Mumm, all preferred not to fight the case and lose. They settled with us. Not the other way around. And most paid our expenses.

Point 4 - The spaceous claim that the "items in question did not meet the criteria for derivative works" makes no sense. It is true that they were not derivative works based upon court decisions, but what does that have to do with why they were settled? Was quirke a party to the settlement talks? No. quirke is simple attempting to justify her senseless diatribe.

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http://www.etsy.com/forums_thread.php?thread_id=6448731&page=3 I am always surprised (though by now I shouldn't be) that so many artists want to capitalize on and profit from someone else's work. Whatever happened to orginality? If you're concerned about legal boundaries, you should at the very least contact the trademark/copyright holder to ask permission, or an intellectual property lawyer. Don't take specific advice from a website, verdicts in copyright cases vary highly from one case to the next - do you want to be the case that costs dearly?