Thank you!!

I would like to take this opportunity to thank my "cheerleaders" for helping me through this whole ordeal with Marvel and Etsy.
My wonderful husband who listened and was always there for me, my awesome Mom who put up with just as much crap as my husband, Karen & Mike aka Tabberone and their awesome awesome website, patience and persistence. I also thank everyone else that was behind me in this as well, (there are so many to name). My dear friends Christie & Lisa you guys are the best!! Barbara, I am not forgetting you either as you have been there from day one and you are an awesome cheerleader!! (Just no splits please) LOL I am glad to have you all on my "team". Oh!! I also want to thank my "Dad" (a former police officer) and Doug for everything they have done to help as well. And Tanya, you're up there too!! (No splits from you either)LOL
I am also going to take the time and thank Mr. Gregory Pan at Marvel Entertainment, Inc. for taking the time to see this through as well. I know we got off on the wrong foot, but I am glad that justice has prevailed. Thank you.
I thank everyone for the comments, IM's, emails, etc... on the "victory".

Ok, change of subject...Please say a prayer for a few of my friends, 1 has been VERY sick these past few days, 1 is having surgery on Friday and is very scared and 1 is having a time starting a new life. They are all very dear to me and they all need some prayers. Thank you & God Bless!!

I WON!!! I WON I WON!!!!!!!!

This evening I received this in my inbox!!

Dear Ms. Russell,

Thank you for the higher resolution images, they were much clearer than what I saw earlier and it does not look like counterfeit fabric. I really sincerely appreciate you taking the effort to do this because this was the only point I was not certain of. While you may not believe it, counterfeit fabric from factories selling counterfeit apparel and other fabric goods are a problem and we try our best to take appropriate action when we see it. The fake material I see usually follows the patterns of popular styles at the time it was made, and after some time it becomes an older style than what is currently sold in stores. The fabric that you use from Spring Industries is about 4-5 years old and is different from what they have been selling recently. I doubt you will believe me, but I in good faith based my decision on reporting your auction because the image did not look like high quality licensed fabric that I have seen recently.

Ms. Russell, we have no interest in disrupting your business and I apologize that I did not receive many of your emails due to the spam filter. I assumed you were dealing with Etsy to file a proper counter notice since that was your concern in the last mail I received from you that you sent to Sarah at Etsy. If you are using licensed fabric, I suggest you use a clearer image and describe the item as licensed. Regardless, I wish this was handled with better communication which would have resolved this much faster and with less stress on your end.

I will write to Etsy to retract the claim immediately.

Kindest regards,

Gregory Pan

Licensed or not licensed that is the question...

So last night I go into my email and I find this:


Please see the attached letter and advise if you can provide any information to verify your claims that the products you are selling are licensed. If they are indeed licensed, let's please try to resolve this amicably with calm heads.

Additionally, please do not send multiple e-mails to my inbox if you want me to actually see your messages. Your address was flagged as a spammer by the company spam filter and almost all of your messages were automatically sent to my spam inbox which I only just discovered.


Thank you and kind regards,

Gregory Pan
Marvel Legal Affairs

Attached Letter:


Gregory Pan
Legal and Business Affairs
Marvel Entertainment, Inc.
417 Fifth Avenue ♦ New York, NY 10016
Fax: (212) 576-8569
gpan@marvel.com
{00073635 GP}
VIA EMAIL
October 21, 2009
Attention:
Re: Sale of Unlicensed Product on Etsy.com
Dear Ms. Russell:
I write regarding your allegations that Marvel Entertainment, Inc. (“Marvel”) has violated
your rights to sell products on Etsy.com. While you have made numerous claims that
Marvel has violated your right of first sale, you have yet to convincingly prove that the
product that you are selling was in fact a licensed product. The image of your item on
Etsy.com did not show a clear image of any product licensed by Marvel and was
therefore determined to be counterfeit.
Please provide either 1) a sales receipt for the licensed product; and/or 2) a clearer, high
resolution image of the product so that we can make a better determination that it is in
fact licensed. If possible, please provide an image of any tags or product identification so
that we know the item in question is an authorized licensed product.
If you can provide the above information to prove that the product was indeed licensed
by Marvel, Marvel will contact Etsy.com and retract any claims made against your
product.
Marvel reserves the right to take whatever remedies are available to it at law and in
equity, and shall do whatever best protects its interests. Nothing in this letter shall be
construed as a waiver or relinquishment of any rights or remedies available to Marvel.
Very truly yours,
Gregory Pan

Here is my first "issue" with this email:

I have NEVER claimed that the items I am selling are licensed. I also had a disclaimer in all of my fabric made listings that stated that I was not affiliated with the fabric companies and that nothing was endorsed by anyone.

#2 I am asked not to send multiple emails because I was flagged as a spammer, BUT it seems that the first 250 emails in 4 hours got through just fine since I slipped one in on him asking if I should continue with my emails or was he going to answer me and he answered me almost immediately. So I emailed him back and said "I sent multiple emails because while you were quick to terminate my listings you took your time even replying to me. And now that you have I can see that no one read anything I sent.

I never stated it was a licensed product. I stated it was made with licensed fabric. I assure you this was licensed fabric and if Marvel doesn't know what they have released into the market place then shame on you.

I provided a federal court ruling stating that the use of licensed fabric was permitted. Please read the court case. Please read my emails. Please provide a response that addresses the issues and federal court ruling and federal doctrines that I address in my emails.

Once again for your reading pleasure is a copy of the email I sent to you before. (I attached the original again)

Now on to the letter issues:

Again, I have NEVER claimed my products were licensed and yes he has violated my right to sell my products.

#2 The picture of the item being disputed and that was posted on Etsy.com was blurry, so he said "The image of your item on Etsy.com did not show a clear image of any product licensed by Marvel and therefore determined to be counterfeit."

Obviously he still isn't reading my emails or he would already know that I told him the fabric was purchased years ago, do you really think I kept the receipt? How is a high resolution picture going to tell them if it is in fact a licensed fabric or not? I, like I'm sure all or most crafters, also cut the selvage ends off of the fabric as they are unuseable.

I have also emailed him about 50 times asking to see these laws and equities he speaks of as well as the interests he is "protecting" and again I get no answers. Oh, I'm sorry they all went into a spam folder over a week ago!

This morning I received this one:

Thank you for responding.

Can you please provide a clear image of the fabric? I cannot determine if the close up image you have on your listing is of a blurry image or of poorly made fabric similar to counterfeit fabric that I have also seen. The design is not similar to what we have been licensing recently, either.

Marvel's licensed fabric has a high level of quality as well as legal lines on the product and I could not see that in the image you had. If you cannot provide a clear image to prove that the fabric was licensed, then I cannot just take your word that it was licensed fabric.

Additionally, can you please provide support that the Precious Moments case you are citing is supported in your jurisdiction?

Regards,

Gregory Pan

My response to him:

Mr. Pan,

The Precious Moments case does not have to be in my jurisdiction (you should already know that), and the First Sale and Fair Use are Federal doctrines supported countrywide.

As I stated to you before in my many emails, this fabric was purchased many years ago. It was most likely purchased at one of the following stores: Wal Mart, JoAnn Fabric, Hancock Fabrics or Hobby Lobby. I do however know that it was manufactured by Spring Industries and Licensed by Marvel. Again shame on you for not knowing this information.

I am still in the process of going through my many boxes of fabric to locate this particular one for the selvage end. But I am sure like most crafters the selvage end was more than likely cut off and discarded.

You will find 2 pictures of MY product attached to this email. The first picture you referred to was blurry, NOT counterfeit material. I can buy fabric at Wal Mart for $4.00 a yard, why would I need to counterfeit it?

Now we wait for the response...


http://www.hairtiesgalorenmore.artfire.com/

Standing up

Family, friends, followers and fellow crafters,
As many of you know I am a firm believer in standing up for my rights and the rights of others. For just over a month now I have been in somewhat of a battle with 2 companies that have no regard for crafters or the common people. These companies seem to only be interested in lining their own pockets at the expense of others, while some of us are just trying to make a few extra dollars to keep up with these hard economic times. In an ongoing effort to help myself and fellow crafters to be able to make some extra money without being bothered by corporate attorneys and their false claims of infringement as well as the venues that refuse to investigate, learn the law, or back their sellers, I will be filing a lawsuit seeking an injunction. Hopefully this injunction helps the many thousands of other crafters out there as well.
In order to file a lawsuit, it of course costs money, which I unfortunately do not have extra just sitting around as most people don't now days. So, I was thinking that so many people start their holiday shopping early, maybe they would like some of my handmade crafts for gifts and /or stocking stuffers, and at the same time help a good cause with their purchases. My online studio is located at http://www.hairtiesgalorenmore.artfire.com/ and can also be accessed directly from Facebook through my Artfire kiosk. Paypal is the payment method and is pretty much instant as well as secure.
Please feel free to forward this on to anyone you wish. I do NOT expect any one to buy or feel guilty for not buying, this is just a shot in the dark for me. You can't kill a crafter for trying! If it works, GREAT!! If it doesn't, then oh well we'll figure out plan B.
I have been told that I make some pretty mean and addictive Pecan turtles as well as some white chocolate macadamia nut turtles, both of which are only $10.00 a pound and would make a great gift (even for yourself)!
Thank you all for your support through all of this, it IS greatly appreciated!
If you are on Facebook, don't forget to fan me (hairtiesgalorenmore). You can also do it from over there >>>>>>>>>>>>>>>>>>>> I think?? LOL

I Just HAD to share this!!

I just had to share this with everyone, enjoy!!



Etsy & Etsy News
Hall Of Shame Members
This Page Added September 11, 2009





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Last Updated September 29, 2009

You will note that there are a lot of pundits who will tell you what you can and cannot do with patterns, licensed fabrics, embroidered images, pictures of products, and descriptions, but none can point you to specific court cases or federal law that supports their claims. Etsy is one of those web sites. Etsy joins our list of moronic and self-serving corporate attitudes all in the name of big bucks and the seller be damned. We rank them just after eBay on the stupid scale.




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The Etsy News makes the "claim" in its Mission that it is the "Unofficial news for Etsy's buyers and sellers" and that "UEN's editors are NOT employed by Etsy or affiliated with Etsy; we just care about the community". However, we believe that in order to use the "Etsy" name they have either official permission or implied permission, and therefore Etsy News has more than some responsibility. Also, a certain "Sarah" appears to have strong ties to Etsy from comments on the site (FYI - "Etsy" rhymes with "Besty"). These strong ties refute the presented appearance of no affiliation (or sponsorship) with Etsy.

Seems "Sarah", who appears to be one Sarah Feingold, Esq.: Attorney and Jeweler (Sarah is Etsy's in house attorney), posted what we consider inaccurate statements on "site terms" and "copyright-branding" concerning copyrights and the format appears to give these statements credibility, thereby ushering Etsy and Etsy News into the Hall of Shame. Sarah's claim, "the First Sale Doctrine does not typically apply to a product created out of the licensed character. Therefore, it is unlikely that the First Sale Doctrine will protect a product created out of a licensed character" is directly refuted by Precious Moments vs La Infantil, 971 F. Supp. 66 (D.P.R. 1997), where the federal court denied an injunction to stop La Infantil from using licensed Precious Moments fabric to make and sell bedding.
Sarah


It is alo refuted by LEE v A.R.T. Company, 125 F.3d 580 (7th Cir. 1997), where the 7th Circuit Court of Appeals stated that when A.R.T. Company, bought and then mounted the works of art sold by Lee on ceramic tiles (covering the art with transparent epoxy resin in the process), and then resold the tiles, is was not infringing upon the copyright by Lee. See also Gracen v. The Bradford Exchange, Inc., 698 F.2d 300 (7th Cir. 1983), supporting the claim that the mounting process cannot create a derivative work because the change to the work "as a whole" is not sufficiently original to support a copyright.


Sarah, did you even take trademark and copyright law in law school? Or did you sleep through those classes as well? Your statements, as Etsy's in house attorney, defy logic and comprehension.




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Sarah's next statement, "When you buy a copyrighted good, for example licensed beads or stickers that have a character on them, you are only buying the physical object and not any of these exclusive rights" is refuted by the Supreme Court:

"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INT'L, INC. (96-1470), 98 F.3d 1109, reversed.


Her next statement, "When you take a licensed character and create a product, for example a necklace or a bag, you are transforming the good, and most likely creating a Derivative Work" (emphasis added) is refuted by the Precious Moments case and by:


In order for a work to qualify as a derivative work it must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989); see also L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976).


Sarah, do you really have any idea what a derivative work is? Perhaps Sarah could explain how taking a piece of fabric and making a bag from it qualifies the bag to be copyrightable? It isn't and never could be. A derivative requires the "transformation" of the copyrighted image into something new. The simple act of cutting and shaping fabric with a licensed image on it does not transform the copyrighted image. Sarah needs to take a close look at these two decisions from the 2nd Circuit Court of Appeals where the court states that "clothing is not copyrightable". Since the bag cannot be copyrighted, where is the infringement you claim? Since the fabric wasn't copied, or the characters on the fabric copied, there is no copyright infringement. There is no trademark infringement because you are not counterfeiting a product; you are using genuine material.


Her last statement, "For example, if I make and sell a quilt from licensed fabric, a consumer may assume that the quilt is an officially licensed product" ignores the requirement under trademark law, the Lanham Act specifically, that the seller must do something to deceive the public into believing that the quilt was manufactured by the trademark owner. This is why we suggest crafters use the Tabberone Disclaimer. Sarah, you are a moron who is spreading the false assumptions upon which many people labor. It has been our experience that far too many people on the Etsy.com web site believe you. You are doing a lot of harm.




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Etsy was originally on the Craft Sites Hall of Shame page which was added July 7, 2007. On September 11, 2009, this page was expanded, given its own page listing and the following was added:



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Etsy could, like eBay could (but does not), demand a detailed explanation of alleged infringement and examine that explanation to determine the validity. Neither the DMCA or federal law holds the IP provider accountable for refusing to remove objectionable material, it only provides a "safe harbor" for those that promptly removed allegedly infringing material. It would still be up to the rights owner to prove contributory infringement which would be very difficult if the IP provider had a reasonable doubt as to the validity of the alleged infringement. Etsy does not demand a detailed explanation of alleged infringement nor does it appear to care. The only plus we see in the Etsy cowardice is that unlike eBay, Etsy mentions the counter notice in the take down and will use it for trademark and patent claims whereas eBay does not.
Etsy has joined eBay in telling lies and fabricating information. Caving to Marvel's letters of intimidation, Etsy is terminating lawful auctions for items made from licensed fabrics sold by Marvel. Why? Because, according to Etsy, some yoyo named Gregory Pan, Contracts Manager of Marvel Entertainment, has claimed certain items are "not authorized". What a bunch of wussies.

Etsy can't give a better and more accurate description of what is meant by the comment from Gregory Pan, Contracts Manager of Marvel Entertainment, because Esty does not ask for one. Could Etsy require more detail and then could Etsy make a determination if the claim were prima facie valid? Etsy could but like eBay, Etsy is afraid of lawsuits. Etsy is more concerned about lawsuits that would not happen than protecting the rights of the Etsy sellers, who like the eBay sellers, are the primary source of revenue for the site.

And Etsy is lying about liability. In Etsy's Copyright and Intellectual Property Policy (http://www.etsy.com/copyright_policy.php), Etsy falsely asserts to the rights owner, or to the seller who might challenge the takedown,


"If you materially misrepresent that a product or activity is infringing your intellectual property, you will be liable for damages (including costs and attorneys' fees)."


According to whom? The DMCA states the requirement is that they "knowingly materially misrepresent" the facts (emphasis added). Etsy left out the word "knowingly". That is also trumped by the low standard of the DMCA for a "good faith belief" for issuing a takedown. If the rights owner has a "good faith belief" then there is no way that they can "knowingly materially misrepresent" the facts. Even in cases where the courts have found the rights owner knowingly lied, damages have not been assessed. That statement is a lie.
If the courts will not hold the rights owner liable, how many times do you think they have held the alleged infringer to be liable? First, how many rights owners have actually sued after receiving a counter notice? Very few. Why? Because most legitimate infringing activities will be stopped with a lawsuit, not with a takedown. Going after small sellers is nothing more than resume enhancement.












Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.

If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.



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Marvel

Well here we are almost a month later and I JUST finally (yesterday) got a response from one Gregory Pan at Marvel Entertainment. This was only after I sat for many hours emailing him non stop for hours on end.
First he tried the " Please have your attorney contact me and I will gladly speak to him or her." I then informed him that I am my attorney. Then sent another email as follows:
Mr. Pan,
"I am my attorney and if you are ready and willing to speak to an attorney then you should be ready and willing to speak to me. I want this resolved as soon as possible. I'm sure the courts are not going to like seeing how you shirk your responsibilities. You have received approximately 500 emails from me in less than a month, yet you do not respond until today when I keep sending non stop.
This needs resolved now. "
To which he responded with:
"Unless you follow the correct procedures to responding to Marvel's notice, Marvel has no obligations to respond.

Marvel reserves the right to take whatever remedies are available to it at law and in equity, and shall do whatever best protects its interests. Nothing in this letter shall be construed as a waiver or relinquishment of any rights or remedies available to Marvel. "
My response to that was:
"I followed the procedures set forth by esty in responding to Marvel's notice. I did what I was supposed to do, you however chose to ignore all of my correspondence until today with the excuse that "Marvel has no obligation to respond."
"Marvel reserves the right to take whatever remedies are available to it at law and in equity, and shall do whatever best protects its interests."
I would like to see said laws and equity. What interests exactly are you protecting? If you read any of my hundreds of emails, you would see that you have nothing to protect.
Next email from Mr. Pan simply says "please send me the counter-notice that you sent to etsy." So, I sent him the counter notice as well as the original email from etsy (my infringement notice).
I then hear nothing from him again until I send him an email asking if I should go forward with my lawsuit. Actually he wouldn't answer that one, so I sent another that said "I will take that as a yes, it is prepared and will be filed by this weekend."
To which he responded: "Marvel reaffirms our stance that our actions were within our rights and believes that your claims do not have any merit. You should proceed as you see fit."

How after over 500 emails does he think my claims have no merit? I sent him cases and judgements. Oh, that's right he probably ignored all of those emails as well. I'm sure the courts will love how he has (not) handled things on his end. Any moron can look up the same things that I sent him and see that they (Marvel)have no merit. I sure hope Disney has a much better attorney on their side...

Federal court here we come!!!