Mistaken accusations of copying are on the rise, particularly online. We examine how to protect yourself
One morning Anna*, a designer-maker and illustrator, switched on her Mac to check her emails, coffee in hand as usual. Yawning, she scrolled through the usual Etsy queries and wholesale negotiations, when one jumped out. ‘Cease and desist’ it stated bluntly. Shaking, she clicked on it, slowly reading the lawyer’s words accusing her of copying another designer. “My first thought was: ‘Could I have done this?’” she recalls. “And then: ‘Am I going to lose my business?’”
Anna hadn’t actually copied any designs. But, unfortunately, mistaken accusations of copying are not uncommon in the designer-maker community. It can be difficult to ever 100% prove where designs originated from, especially when they feature common trends and motifs, and highly-publicised ‘shaming’ of alleged copiers on social media may have caused some to become slightly trigger happy in their reactions. A false accusation of copying can be expensive and, of course, tarnish your reputation. So how do you protect yourself?
As Content Lead for Folksy (www.folksy.com), Camilla Westergaard has witnessed many mistaken claims of copying arise online. “I once featured a necklace on our blog that someone claimed was a rip-off of their design,” she reveals. “A lot of arguing broke out in the comments, until eventually the claimant deleted her remarks, then emailed me to apologise for being wrong.” Camilla recommends keeping all your sketches and other evidence of ideas generation to prove designs originated with you – preferably date-marking them somehow: “I’ve known designers to post sketchbooks to themselves, which they’ll leave unopened.” At the very least, make sure you sign and date them.
If you really want to protect your designs with an iron fist, then in the eyes of the law the best thing to do would be to register them as belonging to you, such as having a trade mark registered with the UK Intellectual Property (IP) Office. However, this is unfortunately way out of the budgets of most designer-makers and independent creatives. Instead, consider registering them with Anti-Copying in Design’s (ACID) Design Databank (www.acid.uk.com/acid-design-databank.html). Although this doesn’t add to your legal rights in the same way, it provides reliable third party evidence of when designs were created.
ACID also recommends putting together an ‘IP strategy’ for your business – both to protect from accusations of copying but also to stop others copying you. This may include statements on your website, marketing material or products; identifying risk factors and keeping ideas close to your chest.
Always Be Unique
Luckily for Anna, she didn’t end up going bankrupt or losing her business. However, the false accusations levied against her still turned out to be rather costly. “I scan everything I draw and I also work from a lot of photographs, so I had plenty of evidence to send the lawyer,” she tells us. “But getting a solicitor to draft my reply wasn’t cheap and I ended up losing a considerable portion of my year’s profits.” Unfortunately, the only way she could ever reclaim the money from the complainant would be to take them to court – a pricey move. “I now keep a separate savings account in case something like this crops up again,” she says.
And although it might sound like we’re stating the obvious, the single most important thing you can do to protect yourself is to stay as original as possible in your designs – a surprisingly tricky feat when faced with pressure to be on-trend and commercial. “It’s a myth that if you change a design by a certain percentage or number of changes, that you have created a new design,” advises ACID. “The scope of protection enables legal action against another who produces a similar design that creates the overall same impression.” Try not to look to other designers for inspiration too much – get out and about, visit galleries and museums, or draw and paint outside. Not only will you produce better work, you’re bound to feel much more creatively satisfied, too.
Read part 1, Help! Someone’s Been Copying My Work, here.
Illustration: Steph Baxter