Etsy Right of Publicity 2026: No DMCA Counter Notice

You drew the portrait yourself. You own the copyright in your own drawing, you used no logo, no team name, no studio font, and you checked the trademark register before you listed it. The listing came down anyway, and the notice did not say copyright and did not say trademark. If that has happened to you, the Etsy right of publicity is almost certainly what you ran into: the right a person has to control commercial use of their own identity.

We read Etsy's 2024 and 2025 Transparency Reports from its investor site, Etsy's own intellectual property help article, 17 U.S.C. §512 and 15 U.S.C. §1125 at the Legal Information Institute, the enrolled text of Tennessee's ELVIS Act, and the Copyright Office's July 2024 report on digital replicas. Then we read the pages ranking for this term. The best is a competent 2,000-word explainer with no tables, no FAQ and one statute cited by section. None tells you what to do after the removal, because the usual answer, the DMCA counter notice, is unavailable here and none of them says so.

That is the gap this piece fills: which right actually came for your listing, what Etsy's own figures say about how often it happens, why the remedy you have read about is missing, and what is left to you instead.

The Third Right Nobody Reads About

Almost every Etsy compliance guide, including several of ours, splits listing risk in two: copyright protects the expression, trademark protects the brand. That is where our own fan art guide starts, and for fictional characters it is the right split.

Real people break it. A photograph of a musician is someone's copyright, usually the photographer's. The band's name is someone's trademark. The musician's face is neither, and the right covering it is a creature of state law with no federal statute behind it. Draw that face yourself and you have cleared both rights the guides discuss while leaving the third untouched.

The three behave differently at every point that matters to a seller.

	Copyright	Trademark	Right of publicity
What it protects	A fixed creative work	A mark indicating source	A living or dead person's identity
Governing law	Federal, 17 U.S.C.	Federal and state	State only, statute or common law
Named in Etsy's IP help article	Yes	Yes	No
Counter notice available	Yes, DMCA	No	No
Statutory restoration clock	Yes, §512(g)(2)	No	No
Penalty for a knowingly false report	Yes, §512(f)	No federal equivalent	No
Your own authorship helps	Yes, decisively	Sometimes	No, it is irrelevant

That last row is the one that catches careful sellers. Drawing it yourself is the correct answer to a copyright problem and no answer at all to a publicity problem, because the thing being complained about is not the drawing. It is whose face is in it.

What Etsy's Own Numbers Show

Etsy publishes an annual Transparency Report on its investor site, and it is the only public source with real figures attached to this. The 2025 edition reports that Etsy processed around 111,000 alleged infringement reports, a 30% increase on the year before, while total listing removals stayed roughly flat at about 846,000.

The breakdown is the interesting part. Etsy classifies its intellectual property takedowns into four buckets, and three of them are named rights.

Etsy IP takedowns, by issue	2024	2025
Copyright	59%	64%
Trademark	38%	33%
Patent	0%	0%
Other	3%	3%
Alleged infringement reports processed	85,591	~111,000
Reports rejected by Etsy	15%	18%
Copyright reports met with a counter notice	9%	10%

A publicity claim is not copyright, not trademark and not patent, so on Etsy's own taxonomy it falls into "Other": a bucket holding 3% of takedowns, undifferentiated, with no published subdivision. Three per cent of a large number is still a large number, and nothing in either report breaks it out further.

Two more figures are worth holding on to. Etsy rejected 18% of submitted IP reports in 2025, citing inability to verify the reporter's authorisation, an insufficient description of the property, or a failure to meet its requirements, so reports do get refused. And counter notices were filed against only 10% of copyright reports, so the tool is underused even by sellers who have it.

What Actually Triggers a Publicity Claim

The trigger for the Etsy right of publicity is commercial use of an identifiable person, and "identifiable" is doing more work than "photograph". A caricature, a silhouette, a signature, a catchphrase closely tied to one person, or an obvious nickname can each identify someone without reproducing a single pixel of anyone's photograph.

What follows is a map of the product shapes that generate these complaints, with the thing the claim actually attaches to in each case. It is not legal advice and the law varies by state, which is the next section's problem.

Product shape	Copyright exposure	Trademark exposure	Publicity exposure
Print of a photo you found online	High, photographer's	Low	High
Your own drawing of a living celebrity	None, you are the author	Low	High
Name only, on a mug or shirt	None	Possible, if registered	High
Caricature or silhouette, no name	None, if drawn by you	Low	High, if identifiable
Memorial or tribute item, person deceased	Varies	Low	Depends on the state's post-mortem term
AI-generated image "in the style of" a person's face	Unsettled	Low	High, and newly legislated
Fictional character from a film	High, studio's	High	Low, the character is not a person

Two rows matter most. The deceased row is state-dependent, so a memorial product lawful in one state is actionable in another. The AI row changed most recently, because several states have legislated for it directly.

The ELVIS Act Changed the Shape of the Risk

Tennessee's Ensuring Likeness, Voice, and Image Security Act of 2024 is the clearest statutory statement of where this is heading, and the Tennessee General Assembly publishes the enrolled bill, so we read the operative text rather than a summary. It took effect on 1 July 2024 and amends the state's existing Personal Rights Protection Act.

Most coverage calls the ELVIS Act a law about AI voice cloning for musicians. Read the sections and it is considerably broader.

Section	What it does	Why it matters to a seller
§47-25-1102	Defines "voice" as a sound readily identifiable and attributable to an individual, "regardless of whether the sound contains the actual voice or a simulation"	A simulation counts as the thing itself
§47-25-1103(a)	"Every individual has a property right in the use of that individual's name, photograph, voice, or likeness in any medium in any manner"	Every individual, not just the famous; any medium, so merchandise is in scope
§47-25-1104(b)(2)(A)	Post-mortem right runs 10 years from death, then terminates on proof of 2 years' non-use	Memorial products are not automatically safe
§47-25-1105(a)(1)	Civil liability for knowing use "for purposes of advertising products, merchandise, goods, or services"	Merchandise is named in the statute
§47-25-1105(a)(2)	Civil liability for publishing, distributing or making available to the public a voice or likeness, knowing it was unauthorised	No advertising element at all
§47-25-1105(a)(3)	Civil liability for distributing a tool whose primary purpose is producing an unauthorised likeness	Reaches the generator, not only the output
§47-25-1107(c)	Standard is now "knowledge or reasonably should have known"	Wilful ignorance is not a defence

Subsection (a)(2) is the under-reported one. Where (a)(1) requires use for the purposes of advertising goods or merchandise, (a)(2) requires only that you made a likeness publicly available knowing the use was unauthorised. A public listing page is a publication. The statute also added an explicit First Amendment limit to the exemptions in §47-25-1107(a), which is where any expressive or commentary defence now has to live.

Tennessee is one state. We read its statute because we could read it; we are deliberately not quoting section numbers for other states, because their texts were not reachable from here and a half-remembered citation is worse than none. The structural point holds regardless: these rights are state rights, the post-mortem terms differ, and the newer amendments are aimed squarely at synthetic likenesses.

Why There Is No Counter Notice for a Likeness Claim

Here is the part that no competing page covers, and it is the practical heart of the Etsy right of publicity problem. When a listing comes down on a copyright report, federal law hands the seller a specific, dated, enforceable procedure. When it comes down on a publicity claim, none of that exists.

Etsy's own help article is explicit about the boundary: "If you submit a report of copyright infringement, the sellers you report have the option to file a DMCA counter notice." The 2025 Transparency Report uses the same framing, describing the counter notice as available when a listing is removed "in response to a copyright infringement report". Copyright is the trigger, and copyright is 64% of takedowns, not the 3% bucket.

What the DMCA gives a seller	Copyright report	Publicity claim
Statutory counter notice, elements set by §512(g)(3)	Yes	No such procedure
Provider must tell the reporter it will restore in 10 business days, §512(g)(2)(B)	Yes	No
Restoration "not less than 10, nor more than 14, business days", §512(g)(2)(C)	Yes	No
Reporter must sue to stop restoration	Yes	Not applicable
Damages against a knowingly false reporter, §512(f)	Yes, including costs and attorneys' fees	No equivalent
What the seller actually has	A statute	Etsy's internal review

Read the §512(g)(3) elements and you can see why they do not transfer. A counter notification requires a statement under penalty of perjury of a good faith belief that the material was removed "as a result of mistake or misidentification of the material to be removed", plus consent to the jurisdiction of a Federal District Court. Both are built around a federal copyright claim. A publicity complaint is a state law claim about a person, so there is no federal cause of action to consent to and no copyright mistake to swear about.

§512(f) is the loss that stings most. It makes any person who "knowingly materially misrepresents" that material is infringing liable for damages, "including costs and attorneys' fees", to the injured seller. That is what gives a bad-faith copyright reporter something to lose. Publicity claims have no such provision, so whoever files against your listing carries no statutory downside for getting it wrong.

One practical consequence follows immediately, and it runs against most advice on the internet: do not file a DMCA counter notice against a likeness complaint. It is the wrong instrument, it swears to the wrong facts under penalty of perjury, and it volunteers your consent to federal jurisdiction in a dispute that is not federal.

The Federal Gap: Lanham Act Now, Digital Replicas Next

There is one federal hook, and sellers meet it from the wrong side. Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a)(1), creates a civil action over any "word, term, name, symbol, or device" or "false or misleading representation of fact" that is "likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association" with another person, or as to "the origin, sponsorship, or approval" of goods. It may be brought by "any person who believes that he or she is or is likely to be damaged".

Applied to merchandise, that is the false endorsement theory: not that you copied anything, but that a shopper might think the person approved your product. Note which way it cuts. The Lanham Act is why a celebrity's lawyers have a federal claim against a listing; it is not a tool for getting a listing restored. It also means an "unofficial" disclaimer does more work than sellers realise, and less than they hope.

The gap is recognised at the top. The Copyright Office published Copyright and Artificial Intelligence, Part 1: Digital Replicas on 31 July 2024, concluded that existing law does not provide sufficient redress, and said plainly that "a new law is needed" because "the speed, precision, and scale of AI-created digital replicas calls for prompt federal action". Its recommended contours are a close description of what sellers are missing today.

Copyright Office recommendation, July 2024	Position today
A federal digital replica right, narrower than state name, image and likeness law	Does not exist; state law only
Covering all individuals, "not just celebrities, public figures, or those whose identities have commercial value"	Varies by state
Protection at least for life, with limited post-mortem term	Varies widely; Tennessee runs 10 years plus non-use
Liability for "distribution or making available", not creation alone, and "not limited to commercial uses"	Tennessee §47-25-1105(a)(2) already does this
A safe harbour that incentivises providers to remove replicas "after receiving effective notice"	No notice-and-takedown regime exists
Statutory damages and prevailing party attorney's fees	Varies by state
A federal floor, with no full preemption of state law	No federal floor at all

The fifth row is the one to sit with. The Copyright Office is recommending that Congress build, for personas, the notice-and-takedown machinery that copyright has had since 1998. Until something like it is enacted, the absence of a counter notice is not an oversight in Etsy's process. It is the absence of a statute for Etsy's process to implement.

What to Do If Your Listing Came Down for Likeness

Since the statutory route is closed, what is left is Etsy's internal review, and the way to use it well is to be specific rather than aggrieved. Etsy's 2025 report says it added a policy violations page in Shop Manager and "a listing appeals process, beginning with Creativity Standards violations", so the appeal surfaces are improving, from a low base.

1. Read the notice for which right is named. If it says copyright, you are in §512 territory and the DMCA route applies. If it names likeness, publicity, personality or image rights, or names nothing at all, treat it as a publicity matter.
2. Do not send a DMCA counter notice. Wrong instrument, wrong sworn facts, and it concedes federal jurisdiction you need not concede.
3. Establish that the person is not identifiable, if that is true. This is the only argument that goes to the heart of the claim. Generic, composite or unrecognisable is a defence; "I drew it myself" is not.
4. Check whether a licence exists. Estates and agencies license likenesses, and some products are legitimately licensed through a supplier. If yours is, the licence is your entire case, so attach it.
5. Separate your own rights from theirs. If the reporter also claimed your photograph or artwork, those are your copyrights and they are reportable, through the same IP policy that is being used against you.
6. Fix the text, not just the image. A name in the title or tags is an independent trigger and often the easier one to prove. Trademarked words on Etsy covers the mechanics.
7. Do not relist unchanged. Repeat findings are how shops close: Etsy closed roughly 28,000 shops for repeat infringement or counterfeiting in 2025.

Etsy's October 2026 listing image and AI rules now sit alongside all of this, so an AI-generated image of a real person's face can trip two systems in one listing. The photo rules piece covers that half.

This is the weakest procedural position a flagged Etsy seller can be in, and the reason is structural rather than anything Etsy chose. Knowing which right was named is most of the work: it tells you whether you have a statute behind you or only an argument.

Related Articles

• How to Sell Fan Art on Etsy, the copyright and trademark split this article adds a third right to
• Etsy DMCA Takedown, the procedure that does exist, for the claims it covers
• Etsy Takedown Notice: What to Do, reading the notice before you answer it
• Etsy Appeal Letter Template, the structure for a specific, evidenced appeal
• How Competitors Use Trademark Reports, when the report is tactical rather than genuine
• Selling AI Art on Etsy, where synthetic images meet the newer rules

FAQ

What is the right of publicity on Etsy?

It is the right of a person to control commercial use of their identity: name, face, voice, signature or anything else that identifies them. It is a state law right in the United States with no federal statute, and Etsy's intellectual property help article does not list it alongside copyright, trademark and patent, even though listings are removed over it.

Can I sell a drawing of a celebrity if I drew it myself?

Drawing it yourself resolves the copyright question, because you are the author of your drawing. It does not address the publicity question at all, because the complaint is about whose identity is being used commercially, not about who made the image. Authorship is simply not an element of the claim.

Can I file a DMCA counter notice against a likeness complaint?

You should not. The counter notice in 17 U.S.C. §512(g)(3) requires a sworn statement that material was removed by mistake or misidentification under copyright, plus consent to federal court jurisdiction. A publicity claim is a state law claim, so the instrument does not fit and filing it anyway swears to the wrong facts under penalty of perjury.

Is a likeness takedown the same as a copyright takedown?

No, and the difference is procedural rather than cosmetic. A copyright removal carries a statutory counter notice, a restoration window of not less than 10 nor more than 14 business days under §512(g)(2)(C), and damages under §512(f) if the report was knowingly false. A publicity removal carries none of those, leaving Etsy's internal review as the only route.

What about selling items featuring someone who has died?

That depends entirely on the state, because post-mortem publicity terms vary. Tennessee's statute, as amended by the ELVIS Act, runs the exclusive right for 10 years after death and then terminates it on proof of two years' non-use for commercial purposes. Other states use different terms, so "they died a long time ago" is not a general answer.

Does adding "unofficial" or "fan made" to my listing protect me?

It helps with one theory and not the other. A disclaimer speaks to confusion about endorsement, which is the Lanham Act §43(a) false endorsement angle. It does nothing about the underlying publicity claim, which is about commercial use of an identity rather than about whether buyers were confused.

Is an AI-generated celebrity image treated differently?

It is more exposed, not less. Tennessee's definition of voice expressly covers a simulation, its §47-25-1105(a)(3) reaches tools whose primary purpose is producing an unauthorised likeness, and the Copyright Office recommended a federal digital replica right in July 2024. Separately, Etsy's October 2026 image rules apply to AI-generated listing images, so one product can face two problems.

Sources. 17 U.S.C. §512 and 15 U.S.C. §1125, Legal Information Institute. Tennessee HB2091, the ELVIS Act, Tennessee General Assembly. Copyright and Artificial Intelligence, Part 1: Digital Replicas, U.S. Copyright Office, 31 July 2024. Etsy 2024 and 2025 Transparency Reports. Etsy, How to Report Intellectual Property Infringement. Etsy's policy pages at etsy.com/legal return 403 to automated clients, so the Intellectual Property Policy text was not read directly; Etsy's help centre and investor reports are used in its place. This article is general information about how Etsy's process works, not legal advice.