Boy, do I have a story for you. Let’s just get right into it.
An Intellectual Property Infringement was filed against one of my listings on Etsy by a certain Individual whom I don’t want to name because I’m not trying to slander them. I’m simply trying to express my feelings, point of view, and frustration as a small creator. A few weeks ago for a design that said “you’re killin me smalls” with a screengrab of The Sandlot.
Now, I’m not a lawyer, nor do I want to pretend to know the first thing from a professional standpoint about trademark and copyright law. I did do a little digging, curious if this was just a threat or if there was something to stand on.
This person does own the rights to some similar phrases and uses them to represent their brand, YOU’RE KILLING ME!! Like I said, this is not to slander, but you can go to that page and see the trademark information yourself. Also, other cases have come up and this is totally Google-able, and I wanted to try to shed some light on this issue so that it doesn’t happen to other small businesses.
After a lot of research, my conclusion is that this type of stuff is a very grey area. When it comes to using famous quotes and whatnot, I’ve seen some articles saying just don’t do it if you’re not sure, and I’ve seen others saying that they’re up for grabs because you’re not using someone’s whole work and trying to pass it off as your own (because everyone knows lil old me didn’t come up with “you’re killin’ me, smalls”).
If you’re wondering if his trademarked phrases matter in terms of spelling, from what I understand, as long as it’s similar enough and can confuse a customer into buying something they think is actually from a different business, that’s infringement.
There’s also the question of “what if that trademark exists exactly the way I spelt it, and it’s not enforceable?”
Because that happened as well.
According to the United States Patent and Trademark Office, “You’re Killin’ Me, Smalls” was abandoned (I’m guessing because it also says “dead” because the owner of it passed away…?). So I’m not sure if since that trademark isn’t enforceable anymore because it was “abandoned”, can that quote be used without issue? Not sure. If you’re a lawyer, I’d love for you to answer that one.
Anyway, this person and I exchanged a few emails in which I asked about the spelling differentiation (didn’t matter) and why other stores (I mean big stores, like Kohl’s, HotTopic, and others) can sell these designs without them lawyering up, but I for some reason, am not allowed.
They didn’t have an answer to that one and simply accused me of not caring whether or not I ripped off 20th Century Studios.
And maybe we were both a little defensive, but hey, I feel like I’m getting picked on a little. I mean, just on the Google shopping tab, hundreds of listings come up.
So that’s kind of where we’re at. The Etsy listing is down, and I have a feeling this person going to be spending a lot of mental energy and time trying to defend his business against a sh*t ton of artists using a very famous movie quote.