Celebrities, Crocs, and Copyright – Transcript

By Tatiana Krisztina
Voices (in order of appearance)
Tatiana Krisztina (Host)
Emily Hering, Interviewee, Owner of Sunfish Press
Jules Reist, Interviewee, Owner of FanBehavior

[Concert sounds]

Tatiana Krisztina [Narration] 00:02
Concerts, remember those? The kind before 2020. A room full of people. Bass pumping through the speakers. The ground shaking. There’s a buzz in the air. You hope they play your favorite song. People scream. You scream. Adrenaline fills the room. You get to support your favorite artist. It’s your way of letting them know you love them. You think, ‘wow this is the best night of my life.’ And then the music stopped. [Concert sounds stop abruptly] Everything stopped.

Emily Hering 00:34
I was working at a coffee shop and I lost my job. So I was scrambling for money because unemployment was giving me $300 a week, which is not enough to survive off of, especially in the Bay Area.

Tatiana Krisztina [Narration] 00:44
That’s 23 year old Emily Hering. Like many of us, she lost her job at the start of the COVID-19 pandemic in March 2020. To make some money she decided to post some things on Etsy, an e-commerce site for small businesses. She named her shop Sunfish Press. Emily is a huge Harry Styles fan. So she created a croc charm, one of those little accessories for croc shoes. It was a vintage style ticket for Styles’ latest tour titled Love on Tour. Emily made a Tik Tok account to promote her shop. And that’s where it all started.

Emily Hering 01:21
​​It was like a three to five second video of just, like, me holding a croc. Then I went to bed and then I woke up and there were like thousands of new followers. And thousands of views. And I was very caught off guard. ‘Cause I created them as a joke and I was like, oh, I have something here.

Tatiana Krisztina [Narration] 01:37
She’s thankful for her silly little joke. Because when the world stopped, she had a job. Something a lot of people couldn’t say during that time. She’s not the only one. Jules Reist also started her Etsy shop, FanBehavior, during the pandemic. She lost her nannying job and wanted a creative outlet.

Jules Reist 01:57
I learned how to embroider, um, which took me forever to try to learn how to figure out. But yeah, that’s pretty much how I started just, like, being let go and, like, just feeling a little bit inspired.

Tatiana Krisztina [Narration] 02:09
Similar to Emily, Jules came up with her best seller as a joke. She didn’t think it would do as well as it did, or capture the attention of one of the celebrities it was about. Jules created a shirt that featured a heart and a picture of Harry Styles and fellow singer Lizzo. Above and below the image, she wrote “these are my parents, no wonder I’m so hot!”

Jules Reist 02:31
I posted a Tik Tok of the shirt. Um, and it, it blew up a little bit, maybe like 80,000 views and a lot more people started buying it, wearing it to the concerts and all that, and they’re tweeting photos of it and all of that.

Tatiana Krisztina [Narration] 02:44
And then, it happened.

Jules Reist 02:47
So, um, Lizzo ended up seeing a photo of a fan wearing my t-shirt and she tweeted and she was like, “I need this shirt. I hope Harry sees this shirt,” all this stuff. So I was, like, doing everything I could to, like, get in contact with her so I could send her one. Um, but I got no reply. So I was like, okay. Oh, and then I posted a Tik Tok of her tweet and that blew up. And then I gave up after that, trying to reach out to her. ‘Cause I thought it was never going to happen. And then I was at the Harry Styles concert in Los Angeles and, um, you know, my friend and I, we had camped out all day. And so we were super happy to be in the front. I was trying not to be on my phone too much because I wanted to take in, like, actually being there and she was on her phone and she grabs me and I turn around and she shows me the picture of Lizzo at the concert, which I didn’t even know she was. And she was like, “she’s wearing your shirt!” And I, I was crying and it was crazy. Yeah. So that’s how I found out. And it was so cool because I was there at the same time she was. So that was like, I don’t know. It like touches my heart one of like the biggest moments probably in my life.

Tatiana Krisztina [Narration] 03:58
Crazy, right? Lizzo’s shirt made headlines on Daily Mail and PopSugar. And with it, Jules shop got attention. She gained fans and shoppers. Now she has over 2,000 sales and over 6,000 followers on Tik Tok. Similarly, Emily had noticed she gained her own following of fans. They even have their own name.

Emily Hering 04:18
There is like a solid group of followers that are like die-hard. I call them Sunfish Stans.

Tatiana Krisztina [Narration] 04:23
Sounds adorable, right? Cut, edit, print. But as everyone who’s lived through 2020 knows – we don’t live in a fantasy world. The story doesn’t end there.Both Jules and Emily have experienced their art stolen and resold. According to them, both Etsy stores and manufacturers are stealing their designs and claiming them as their own.
Emily Hering 04:46
Oh, it’s an ongoing saga with my man Allen. We love Allen. The first few rounds of croc charms were made with a certain manufacturer at Alibaba, which is like the way to get things done. It happens, like, that’s just how you do things. ‘Cause you can’t really make them in America. ‘Cause chemical mandates and whatnot. The same way that you can’t make enamel pins in the states. Um, and I, I don’t know, I call it “croc-ageddon”. Um, there was, like, there was a period of time where, like, the original Harry Styles croc charms were popping up all over Etsy. And I’m like, where the hell are these people getting my molds from? Um, and so I interrogated my manufacturer, his name is Allen, and so I’m interrogating him and they have, like, catalogs of, like, ready-made designs that they can just like produce and send to whoever wholesale versus like the more custom. You send them a design and they, like, make it blah, blah, blah, blah, blah. And sometimes they add these designs to their ready-made catalog without consent. And that’s what happened with pretty much all of my charms. And so they’re, like, all over Etsy now and I did not authorize them. And so I’m pulling a Taylor Swift and, like, trying to buy back my molds to send to my new manufacturer.
Tatiana Krisztina [Narration] 06:01
Pulling a Taylor Swift. The pop artist is known for crusading to get the rights to her own music. She rerecorded her older albums recently, dubbing them “Taylor’s Version” and encouraged fans to buy and listen to those versions because she owns them. So Emily is taking a page out of Taylor’s book and trying to buy back her molds so people can’t profit off her hard work. She’s found a new manufacturer, and even though the charms are a bit different, they still do the trick.
Emily Hering 06:32
It’s a little bit different, they’re thicker. And like the peg is a little bit shorter, but it’s essentially the same product. And I don’t really want to pay for new molds if I’ve already had them made. And if I take them away, they can’t use them anymore. So that’s like the ongoing saga.
Tatiana Krisztina [Narration] 06:49
Emily says she was first alerted to the problem by her “Sunfish Stans”.

Emily Hering 06:54
Some of, like, the Sunfish Stans are like, “Hey, I saw these on Etsy. Are they yours?” And I’m like, “yeah.” Um, and you can do, like, a whole thing to, like, file a DMCA and get them taken down, but then they can also do the same to you. And there’s like no checks and balances.
Tatiana Krisztina [Narration] 07:10
DMCA – the Digital Millennium Copyright Act. It was signed into law in 1998. It protects the unlawful distribution and reproduction of someone else’s work. In normal terms – it’s illegal to sell someone else’s work and profit. Duh. But Emily claims there’s no checks and balances. According to her and Jules, Etsy isn’t that great with protecting creators under the DMCA.

Jules Reist 07:35
So I would have to go through Etsy legal and file a bunch of claims with them. Um, and I’m looking to get like the design trademarked now, because it’s just become so popular that like, it’s so easy for people to steal and Etsy can only do so much. Etsy’s not too great at protecting their sellers and like copyright and things like that. So they’ll delete some of them, but then the, um, opposing shop can file a claim back saying that they didn’t copyright it, even though it’s the exact same design with my watermark. So, um, you know, it’s a process going through all of that. It takes time. It’s horrible. They do a terrible job. I’m like, I worked so hard on this, like, and, like, now people are just taking it and you’re not doing anything about it.

Tatiana Krisztina [Narration] 08:18
Horrible, right? Emily thinks so.

Emily Hering 08:22
I sent the most angry messages to my manufacturer. And he was like, “why are you so upset?” Um, it was, like, kind of gaslight-y. And that was just like making it worse. I was, like, burning red. It was horrible. Um, and I’m still very bitter about it. But, um, it’s just frustrating. I don’t know, ‘cause like being, like, the altruistic business owner, like, I would never imagine, like, going to a company and be like, “replicate this”. Um, I don’t know. So it’s, like, kind of slimy, kind of furious, like a weird sloshy feeling.
Tatiana Krisztina [Narration] 09:02
She should just take legal action, right? But it’s not that easy. Copyright and suing cost money, something Emily doesn’t easily have.

Emily Hering 09:11
There’s like literally hundreds of listings now for stuff that I’ve created. And it’s become such a big monster that it’s not even worth, like, slaying anymore. Like it’s become so far out of my control and so many different companies have, have like, the molds now that it’s not even worth going after it. It would be like a second full-time job just going after all these people. Um, and suing would be a complete mess. So I’m just like, no, I’m fine, have it.
Tatiana Krisztina [Narration] 09:40
It’s not just sellers suing other sellers. As you might already be thinking: these artist have to be suing people for using their likeness, right? Right. And guess which artist made headlines for doing so? In 2015, Taylor Swift started suing Etsy sellers for using her trademark phrases like “this sick beat” and other lyrics she had trademarked. Her legal team is still hard at work, Jules claims to have received a notice from them for using Taylor’s face on a shirt.

Jules Reist 10:11
I mean, it was cool to get noticed by Taylor Swift’s legal team or whatever, but yeah, that could be an issue as well. Yeah. That’s no longer on my shop. Um, which sucks cause it’s one of my best sellers.
Tatiana Krisztina [Narration] 10:24
Jules is taking a page from Taylor Swift and taking steps to trademark her signature shirt slogan that she created. You know, the “these are my parents, no wonder I’m so hot”

Jules Reist 10:35
So you can’t really trademark their face, you know, but I can get like the saying trademarked if that makes sense. The “these are my parents” saying, because I know that’s, like, the popular thing that, like, most people, as they wanted to make another design, they’ll take the saying and then just put it with different people. Um, so that’s more of my focus with the trademark thing. Cause you can’t really do it with, like, Harry and Lizzo.

Tatiana Krisztina [Narration] 10:58
Artist creates music, a fan creates apparel based on that artist. Artist files copyright. Then other fans take the work of the other fan and make their own apparel. So the original fan files a copyright. A copyright on a copyright on a copyright. It’s a vicious circle isn’t it? Etsy was unable to be reached for this audio piece, so all claims made against them are opinions based on Emily and Jules’ experiences. Like Jules’ experience with Taylor Swift’s legal team, please don’t sue us.