Friday, September 30, 2011

My opinion on dealing with copy-cattery

I've been meaning to talk about copying and was reminded of the issue when shopping around Etsy today. I saw an item that gave me a sinking feeling because it strongly resembled one of my most loved designs. I can honestly say that upon seeing the item, my body temperature rose for a few moments. This has happened to me about a dozen times. My immediate reaction to seeing a potential mimic is to be either indignant or foaming-at-the-mouth enraged. After dealing with this feeling for years (sometimes poorly) I have a plan of action I feel confident to recommend.

Next time you come across something you deem a copy of your work, try this:

1. Be really upset for as long as you feel really upset but please do not do a single thing. If you must vent your anger, make sure you are speaking to a small private audience. I like to call my Mom because she is always on my side and makes me feel like I can overcome any injustice.

2. Once your passionate fury has subsided to a low growl, take a deep breath and eat a big bowl of humility because the next part requires a clear mind.

3. Examine the copy-ness of the copy. I'm not really discussing rip-offs shipped overseas and mass produced. I'm mostly focusing on the idea of artists and crafters stealing from other artists and crafters. It is painfully obvious when huge companies copy because they barely bother to hide it. This advice mostly does not apply to big companies who practice creative theft.

Most copies in question fall along the similarity spectrum of fraternal twins to distant relations by marriage. To determine if you have reason to take action, ask yourself these questions:

- Research! Did the item in question appear after yours? Do they seem to have some creative ideas in their portfolio or shop or does it all look like copies? Does the alleged copier clearly have knowledge of your existence (i.e.- they bought from you in the past, repeated your writing, used your product photographs, you are so super famous that Martha Stewart asked for your autograph)

- Is your art made of pieces that other people can purchase and assemble? Jewelry findings, clip art, anything made of things manufactured on a large scale? Unless dramatically modified, it is easy to see how similar items could be created from similar pieces.

- Do you think you are the only person who has ever done this? Seriously? I am not trying to be mean but there are lots of productive and creative people out there and sometimes lightning strikes twice especially if you are using an on-trend vocabulary of imagery.

- If your technique or item is very simple, what makes it distinctly yours? It is a gray area for sure but I think this part requires SOUL SEARCHING about what makes your vision unique.

4. If you have come this far and still believe that a person knowingly imitated your totally original item without a dash of their own creativity, you are ready to make your case... to a friend (no lawyers yet!). I hope you have a friend who you can trust who will take this concern seriously and knows that their role is to try to be an objective copycat juror and not a nodding-in-agreement machine. If you can convince your level-headed friend that you have been wronged, feel confident to take the first step of confrontational action!

5. After your friend's agreement, you may be tempted to spill just a tiny bit of venom online. Don't blow it! I believe it is ethical to open a dialogue with the accused before rallying an internet gang against them. I like to employ a firm but non-harassing tone. Maybe talking to them will make you realized that the offender just walked the line of inspiration vs copy a little too closely and you have an opportunity to set them straight. Even better, you may have found a kindred creative person who sees the world the way you do and makes similar art; maybe you should be friends with them!

6. I rarely have had to bust out my Cease and Desist Letter *legal shivers* because most people I've contacted have apologized and promised to stop or convinced me that they were possibly innocent. If your copycat doesn't reply to talking like a normal person, please use the power of legalese and draft one of these puppies and talk about your fake lawyer while you start researching how to find a real lawyer.

7. 95% of the time there is no need for a step 7 in situations of artists stealing from artists. If you are here at step 7 and still want to proceed, I have become useless to you. Thankfully, I have only needed to go this far. If anyone can recommend some resources for serious legal action, I welcome them in the comments.

Did you notice that I have not included a step that recommends you use all the power of your Blog and Twitter followers to drum up intellectual property outrage about your case? Sorry! I know that being validated by the masses is delicious BUT it is also unwise. If you get a lawyer, your lawyer will tell you not to talk about the case. Heck, too much craptalking (aka slander) could have legal consequences for you too!

I hope that next time you are faced with the stressful situation of dealing with copyright infringement, you find my method helpful. In the case of the piece of art I saw on Etsy today that I thought could be a mimic of my design, It didn't make it past step three and was not even close enough for me to feel I needed to confront the artist.

I also hope that the next time you hear one of your favorite artists accuse someone of infringing, that you don't join in for a quick conviction. My theory is that the best way a person can help the original artist is to promote and support of their creativity rather than rally against some designer impostor (lets not drive traffic to their site).

Maybe I am too soft. I'd love to discuss this topic more. Have you ever been too quick to call foul? Do you think it is appropriate for an artist to publicly accuse another artist? Have you ever thought something was your brand new creative idea only to realize someone else had been doing it before you?


M said...

Wise words, Elise. I think I'm guilty of being part of one of those internet mobs. :( I hadn't really thought of the Twitter angle as being a bad move, but it makes sense.

Your calm and measured approach is right on the money, I reckon.

marceline said...

I think you are very sensible! While there are undoubtably lots of nasty copycats out there, I do find people are too quick to judge, especially on twitter.

I also think we are lucky as sellers of illustrated goods - it's either 100% obvious your work has been traced/copied or it's the same thing in a different style. I don't even bother googling to see if someone's already drawn a [whatever my new idea is] as it almost certain mine will be a different take on it, simply due to how I draw. there are thousands of kawaii cupcakes on etsy and I still make a living :)

Elise of Argyle Whale said...

I've wielded pitchfork or two in my day too.

Thanks Marceline! I used to google my ideas all the time before starting a project to see if they had been done before and I feel like that was not necessary and I blocked myself for fear of getting someone mad even though I did think of the idea independently.

You are right that illustrators cases are surely more obvious.

Jaros Designs said...

Excellent post! We all know that fuming, indignant feeling, but walking away when we're that worked up is so important.

I really try to remember that I'm not the first person to wrap wire around a gemstone. Also, when we surround ourselves with wonderful crafty people, we can come up with the same idea independently. I vent to my husband, but never online.

I try not to search them out either - it's not good for your health.

Daphne said...

Right on.

Meaghan said...

I feel like I'm in a unique position at this point in my life. For a few years, I was very clearly a seller and interacted with sellers as a peer. Yet now, as I haven't made anything for sale in close to a year, I feel as though I'm just a buyer...a customer. That's a very interesting place to be, and I appreciate this post so much as a buyer. Advocating a clear and measured approach to handling a very distressing and hurtful situation like a possible copycat is so wise. Most sellers these days link the websites or Etsy pages to things like Twitter, and I'm confident that many customers either follow them or visit their tweets on occasion. If their instinct is to "take it to the streets", they run the risk of alienating current or future customers with their anger and vitriol. It's a really careless risk to take.

In my day job, I'm expected to behave professionally. If my coworker steals my work and does it for me/better than me/faster than me (which she has, mmkay), my first cause of action is not to stand up in my cubicle and scream about the injustice. As an adult, I'm charged with pausing, breathing, and examining the enduring value of a hissy fit. Maybe I seek the support of a colleague, discreetly. Maybe I privately tell my boss. But I don't sic the entire library on my coworker just because my feelings are hurt. What that shows, more than anything, is that my pride outweighs everything else, including my own productivity.

Thank you for always being a strong and accessible voice of reason in these matters. I told my friend yesterday that I feel like I have a reputation for being an injustice screamer when it comes to the indie craft/art world. My face is probably on a bulls-eye at Etsy. So it was personally validating to "hear" you say that I'm critical and thoughtful. :-)

DangAndBlast! said...

Another thing to remember, if you're determined to try the legal route: generally speaking, "useful goods" aren't copyrightable. Logos and other images, as well as things under the legal definition of "art," are. That's why Payless knock-offs of Nine West shoes are absolutely legal - but knockoff handbags with the Louis Vuitton logo aren't; and taking someone else's photograph and selling it as your own isn't. Unless your purse has something super-super-special about it, people can legally copy and sell it all they want -- and even if it has something super-super-special, you are legally shaky unless you have a patent on it. (Patents work - see the icky patent-troll person who took out a patent on "evenly spaced ribbons along the sides of children's toys" or something similar, and who's successfully taking legal action against various people selling taggy blankets etc.) Even if you *say* on a pattern or tutorial that it's copyrighted and people aren't allowed to sell items made from it... well, you can also say you're the Queen of England. The pattern itself is copyrightable (that is, people can't sell copies of the pattern - except for right of first sale, where they sell their own copy and no longer keep it, where that law has jurisdiction, such as the US), but you have no legal control over what people do with products made using the pattern.

All of this is irrelevant if you're doing art (legally-definable "art") - paintings, drawings, photography, sculpture, etc. - but it's worth knowing if you're making "useful goods" such as bags, clothes, toys (real ones designed to be used), etc. Jewelry is in the fuzzy, in-between area, so you may *try* to pursue that if you're determined, but your chances aren't exceptionally good.

DangAndBlast! said...

Realized I should note: I'm just talking about the legal issues here. Certainly it's fine to ask people to be nice and credit you, etc.; and I've paid several times for the "for commercial use" versions of free patterns - that's just nice behavior, even if it's not actionable when you behave otherwise!

Elise of Argyle Whale said...

Thanks Meaghan for finding the perfect office example for what I'm trying to say!

Thanks to Dang&Blast for your legal perspective too. Much appreciated!

chezkimberly said...

go elise!
wonderful post! wonderful!