Another day, another infringement. Well, several of them actually. It really is never-ending y'all.
Fairy Wing Hair Combs from Hey Ricochet
A friend of mine came across these fairy wing hair combs on Instagram and recognized the design as my Titania fairy wings, which I created in 2007.
Often when I catch people using my photos of this design or copying it, they argue how "I see that design everywhere, it's been around forever!" , or "it's all over Pinterest" as if that makes it okay, and my favorite, "you don't own all fairy wings!"
But you see, it's 'been around forever' because I made it that long ago and it was popular enough to go viral, but almost always without credit to me.
You can still see my old listing on my old website saved in the Internet Archive here, date and all.
They did remove 2 small veins, however, that doesn't make it okay either. There's this mythical magic percentage that people think they can change in a work that protects them legally, but it is a myth.
Substantial similarity is what a court would look for, and there is obvious substantial similarity here. Yes there's small differences, which may make it a derivative, but the copyright owner has the exclusive right to create derivatives of their work and any use by others would require a license or royalties.
I started small, as I usually do, and first sent a Cease & Desist to them directly on 8/26/24, asking for the listing and social media posts containing the infringing content to be removed within 48 hours.
On August 29 I got a response saying "We are working with counsel on a response to the claims put forth in the previously mentioned email and will respond in a reasonable time. "
Yet they left all the content up and are still promoting it.
I then reported it to Shopify for removal, after which Hey Ricochet sent a counter notice even though Shopify still had not removed it by then, which means they're refusing to stop selling them.
That meant I had to escalate to legal action, and I filed a CCB claim, & sent a copy of that claim to Shopify.
Look, consequences!
There's the fairy wing hair comb listing on Hey Ricochet's site with a 'Page not found' 404 error.
I'm also waiting on Instagram to remove the posts.
But in Shopify's new removal notice they repeated that the other party may file a counter notice, which would allow Shopify to put the content back up after 10-14 days - even though Hey Ricochet had already filed a counter notice.
And they said they can't verify that the document of my filing would satisfy section 512(g)(2)(c) requirement of a court order to prevent the content from being re-listed.
I asked the CCB about this and their response was:
"If your claim is alleging infringement of material that you identified in a takedown notice to Shopify, and if you notified Shopify notice of the CCB proceeding before it restored that material, then the claim meets the requirements of section 512(g)(2)(c). If that is the case, then it should suffice if you send Shopify a copy of the claim, and tell Shopify that section 1504(c)(1) of the Copyright Act provides that CCB infringement claims qualify under section 512(g)(2)(c)."
I forwarded that email to them. So let's keep that info handy in case any other platforms try to deny your CCB claim is sufficient!
They are also still selling these hair combs wholesale though, which I didn’t realize they were doing on a different website, Faire.
If they’re selling wholesale, they must have produced quite a lot of them. I’ve also sent a removal notice to Faire and waiting for them to take action.
Hey Ricochet could have worked with me to come to some kind of agreement, instead of ending up with a dead web page when people look for these fairy hair combs they've been pumping up and apparently doing a big photo shoot to promote.
The CCB claim can be seen here: https://dockets.ccb.gov/claim/view/9644
Rhinestone iron-on from Heat Transfer Warehouse
I wish I could say that's the only infringement I've been dealing with, but there's another company that's been profiting off of my Teasel fairy wing design for a few years now.
I discovered that Heat Transfer Warehouse had been selling a rhinestone iron-on of my Teasel fairy wings design. Now, I'd been running into these rhinestone copies for a while now and every once in a while had to report them. Maybe this was the source?
I first sent a Cease & Desist letter on July 30th, which they ignored completely.
So I went ahead and reported the listing to their host, Big Cartel, who sent them a warning that it would be removed if they don't remove it themselves. They fortunately did remove it, but, I may go ahead and file a CCB claim because they've been making a profit off of my design and, continued to sell it after I sent the C&D. I think I should be getting at least a portion of those sales, they should have licensed the design from me if they wanted to use it.
Here's the rhinestone design with the actual photo of my Teasel wings that it looks like it was traced from overlayed on top with a transparency adjustment.
This matches far too well to be a coincidence IMO. Even the wing in the foreground appears to be traced. Some changes were made to the bottom panels, which are simply copies of the upper panels in my original design, so again this is still substantially similar and a derivative.
I took a screenshot of the page while it was active, and according to the Internet Archive that page has been active since Sept. 2020. How many have been sold? How much should I have been paid in royalties?
Since they removed the page themselves, they didn't end up with that embarrassing 'page not found' situation.
Copycat wing makers on Etsy from Ukraine
These next copycats have been more frustrating to deal with. Even though Etsy took them down when I reported them, one of them filed a counter notice, but since they're in Ukraine I can't sue and I can't even file a Misrepresentation Claim with the CCB because they only deal with entities in the US.
On July 16 I found 3 wing listings on Etsy that were copies of my Kira wings design by seller ReddoStore. Here's a screenshot of the listing for the purple wings:
They were selling these in a few colors. The design doesn't even really have any changes, it's absolutely copied. Here's a photo of me with those wings edited in - I made the overlays from photos of the actual wings.
Photo taken by Jordan Price.
Near the end of August I discovered those same exact wings, but from a different seller who was also in Ukraine, OlenaOlenaStore.
Same back brace & everything! I reported those too, and Etsy took them down. So far, no counter notice, but that doesn't mean they won't send one eventually. Unlike the time limit copyright owners have to send the service provider a court order to prevent the posts from going back up after the counter notice is sent, they don't have a time limit so they could very well send one at any time.
I don't think that's a fair system, that I have to show them proof of my design, but all the infringers have to do is sign a notice saying they have good faith belief that they didn't infringe.
I've had a lot of trouble with wing makers in Ukraine for some reason, these two aren't the only ones!
I've had to report infringements from this account, who still has posts up that copy my Kira design but Instagram won't remove the posts. Here she's using mini Kira wing copies without the veins to put onto a crown: https://www.instagram.com/p/Cuq-6O3ow-I/
And advertising it on Etsy: https://www.instagram.com/p/CuxS3P4IZ2v/
Another thing I noticed is they have the same back brace as ReddoStore & OlenaOlenaStore, you have to look closely at their photos because the butterfly is being worn on the inside against their backs so it's not as immediately noticeable.
Here's a better pic, you can see the butterfly behind the wings here
I'm not sure if there's someone selling the back braces or if they're all buying wings pre-made and reselling, but it sure seems like reselling if 2 different unrelated sellers are selling the exact same product and that breaks Etsy's rules! I tried telling them this, but they don't seem to care. I tried reporting them for violating Etsy's rule about reselling pre-made products but nothing has changed.
I've even had to report TheWingsUA (their Instagram handle), aka WingsAndFlowerDesign on Etsy, for making wings using my Titania wings photo.
That particular photo got used a LOT, and has also been made into temporary tattoos, all without permission or any money paid to me of course. Below is the original photo of mine that this version came from.
That particular photo got used a LOT, and has also been made into temporary tattoos, all without permission or any money paid to me of course. Below is the original photo of mine that this version came from.
She's unfortunately not in the US either, I forget now where she resides but I couldn't really do anything except report her posts.
But this WingsAndFlowerDesign company has been getting really popular with Americans because they're priced so cheap. Some of their designs are really pretty but... are they really their designs or are they stolen too?
Some seem like they might be made with AI, which, I'd rather have them do that than copy my photos or designs. But there's other wings in their shop that look very familiar to me, designs that have been around elsewhere and they may be using images or clip art they find online. And if most of what I see from someone is either copied from another artist, a nature design, or AI, that tells me they are lacking in design skills so they have to use designs that are already made.
They also seem very similar to the CrystalWingsUA Etsy store.
Thankfully they at least didn't send a counter notice... not yet anyway.
But another thing I never got from any of these companies?
An apology. An "I'm so sorry I used your design".
There are many many more overseas copies than I can fit in here, but I'm working on getting them removed somehow.
In a couple weeks I have a virtual meeting with Senior Counsel for Enforcement from the Office of Policy and International Affairs at the U.S. Patent and Trademark Office to discuss the copyright issues that myself and so many other artists & designers are struggling with, especially with foreign sellers!
I'm not sure what will come of this, if it will lead to any actual changes, but I will update you here if it does!