Wrongful accusation of copyright violation

[MetalStamper]

What is the name of your state (only U.S. law)? OH

As a hobby and a side job I make handmade jewelry which I sell online on Etsy. Most of my jewelry is hand stamped/engraved on metal disks of various shapes. Today I received an email from the site admin stating that one of my items has been deactivated due to the fact that another seller has claimed that she's the "copyright owner of certain designs and materials" I was totally shocked to hear that as I have never heard of her or seen any of her items prior to today, and upon looking at the my item that was reported and her item that she claimed I copied I was even more puzzled. The only similarity between the two pendants is that they were both stamped on a circle disk with two cut out hearts (which is sold by another supplier and is available for anyone to buy and use, so she has no copyright on that) my pendant reads "Mothers love is forever" while she simply has two names stamped on hers. So what could she have copyrights too? The disk wasn't made by her and our engravings are totally different.

The site did give me an option to file a copyright counter notice if I believe my item was removed unfairly but what alarms me is that it states that the accuser will be notified of my counter claim and "Unless the copyright or intellectual property owner files an action seeking a court order against the Member, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice" So basically I'm concerned that she might try to take me to court, especially knowing that I'm in OH and she's in CO and that most people don't have time or money to fly across the state and that she would have an easy case if I didn't show up and it would get ruled in her favor, and I would be held liable for attorney fees. This was also written under counter notice section : "If you materially misrepresent that a product or activity is not infringing upon the intellectual property, you may be liable for damages (including costs and attorneys� fees). Therefore, if you are not sure whether or not the material infringes on the intellectual property contact your attorney first."

To sum it up, on one hand I think she's taking advantage of me because I'm newer to the site and she thinks she can bully out the completion by assuming I wouldn't do anything or try to fight the accusation. The only similarities we share is the circle design of the pendant, which is produced and sold by another seller and she has no right to. The message on my pendant is totally different so I don't see how that could even be viewed as copying her, and her idea of stamping two names on a circle disk is in no way unique or even sound like anything that could even be copyrighted. Plus I don't want the infringement notice to remain on my account, as it might be damaging to me in the future and would simply look bad. But on the other hand I don't want to dig myself deeper in trouble if it is something she could possibly sue me over and win.

Does it sound like she even got a case? or should I appeal the deactivation of my item. Is it something that she could take to court? and if so would I be obligated to go from Oh to CO to attend?

Thanks in advance for any information and advice!

 

[quincy]

What is the name of your state (only U.S. law)? OH

As a hobby and a side job I make handmade jewelry which I sell online on Etsy. Most of my jewelry is hand stamped/engraved on metal disks of various shapes. Today I received an email from the site admin stating that one of my items has been deactivated due to the fact that another seller has claimed that she's the "copyright owner of certain designs and materials" I was totally shocked to hear that as I have never heard of her or seen any of her items prior to today, and upon looking at the my item that was reported and her item that she claimed I copied I was even more puzzled. The only similarity between the two pendants is that they were both stamped on a circle disk with two cut out hearts (which is sold by another supplier and is available for anyone to buy and use, so she has no copyright on that) my pendant reads "Mothers love is forever" while she simply has two names stamped on hers. So what could she have copyrights too? The disk wasn't made by her and our engravings are totally different.

The site did give me an option to file a copyright counter notice if I believe my item was removed unfairly but what alarms me is that it states that the accuser will be notified of my counter claim and "Unless the copyright or intellectual property owner files an action seeking a court order against the Member, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice" So basically I'm concerned that she might try to take me to court, especially knowing that I'm in OH and she's in CO and that most people don't have time or money to fly across the state and that she would have an easy case if I didn't show up and it would get ruled in her favor, and I would be held liable for attorney fees. This was also written under counter notice section : "If you materially misrepresent that a product or activity is not infringing upon the intellectual property, you may be liable for damages (including costs and attorneys� fees). Therefore, if you are not sure whether or not the material infringes on the intellectual property contact your attorney first."

To sum it up, on one hand I think she's taking advantage of me because I'm newer to the site and she thinks she can bully out the completion by assuming I wouldn't do anything or try to fight the accusation. The only similarities we share is the circle design of the pendant, which is produced and sold by another seller and she has no right to. The message on my pendant is totally different so I don't see how that could even be viewed as copying her, and her idea of stamping two names on a circle disk is in no way unique or even sound like anything that could even be copyrighted. Plus I don't want the infringement notice to remain on my account, as it might be damaging to me in the future and would simply look bad. But on the other hand I don't want to dig myself deeper in trouble if it is something she could possibly sue me over and win.

Does it sound like she even got a case? or should I appeal the deactivation of my item. Is it something that she could take to court? and if so would I be obligated to go from Oh to CO to attend?

Thanks in advance for any information and advice!

First, I suggest you check to see if the other seller has federally registered any copyright in the jewelry design (go to http://www.copyright.gov to do a search). Federal registration is not necessary to have rights in a work, as copyrights are automatic once the work is fixed in tangible form, but the copyright in a work DOES need to be registered when the copyright holder wants to file an infringement suit.

If the seller has not yet registered the jewelry design, then she could still potentially sue you for infringement but she would need to register the copyright in the work first. And, if the design was not previously registered (and depending on how long she has been selling the work online), any damages that might be awarded her if your work was found infringing on hers would be limited to what she can prove have been your profits in selling your same/similar design or what she can prove are her losses in sales due to your infringement. These are not (necessarily) easy proofs.

That said, no one here can personally compare your jewelry design with the other seller's design, so no one here can tell you if your design is likely to be judged infringing or not. You really need a personal review by an attorney in your area if you want the best advice on whether to file a DMCA counter-notice or not. If the seller does not file suit against you after receipt of the counter-notice, however, your work will be returned to its place on Etsy. If you do not respond to the infringement notice or do not challenge it, your work will not be returned to its place on Etsy.

The decision as to what to do is yours. I suggest you have the designs looked at by an attorney in your area. Good luck.