They say imitation is the sincerest form of flattery, but when it’s costing you business or your reputation, what do you do? We demystify the rules of copyright and what to do if someone’s copying your work in this two part special.
Surely this is every creative’s nightmare: You’re sitting on the sofa, having a Monday night scroll through your Instagram feed, when something catches your eye – for the wrong reason. Someone else has made something that looks like an exact rip-off of one of your designs – one you spent so long perfecting and honing. You might feel upset, or blisteringly angry, or like you just want to cry. But what, practically, should you do next?
Unfortunately, intellectual property law is a very complex subject, and one that has a lot of myths surrounding it circulating in the designer-maker community. The most important thing is to arm yourself with at least a basic understanding of it to safeguard you against instances such as this and – crucially – don’t panic or make a knee-jerk reaction, as this could come back to bite you.
Firstly, let’s examine just how unique a design needs to be in order for it to be considered ‘original’. You may have read online that if a certain percentage of an existing design is changed, or a certain number of elements, then it’s no longer a copy. This is a complete myth. “Any design that’s based on an existing one could potentially be infringing,” explains Jane Banyai from Anti Copying in Design (ACID) (www.acid.uk.com). “It’s the importance of the elements that are reproduced and whether this makes up all or a substantial part of the design, rather than the number of changes.”
Yep, we warned you it was murky. So, what exactly should you do if you think you’ve been copied? “The sensible approach is to contact an IP lawyer for an initial assessment and comparison,” continues Jane. “Options then range from doing nothing because it’s not commercially viable, to sending a ‘cease and desist’ letter.” She stresses that most cases never go the full way to court, and are usually settled after the exchanging of letters.
Who exactly you think has copied your work will have a big impact on how you approach it. Illustrator Ella Masters (www.ellamasters.co.uk) has had her work copied several times, but has managed to resolve many of these by contacting the person directly. “Often people are just naive. They find work online and don’t realise they can’t copy it,” she explains. “However, if they’re selling it, then The Association of Illustrators, which I’m a member of, has helped me send cease and desist letters.”
Taking on Goliath
But what if it’s not an individual reproducing your designs, but a well-known high street chain? “Big brands can actually be easier to deal with because they don’t want negative publicity,” advises Camilla Westergaard from Folksy (www.folksy.com). “Often they buy designs from third parties overseas and won’t realise they’ve been copied.” The approach is still the same – seek legal advice before acting.
However, getting letters drafted by lawyers can be out of many designer-makers’ budgets, and so ‘shaming’ on social media has become a popular way to deal with copying. Of course, this can have negative consequences, too. If it hasn’t been legally proven that the other person has copied you, then you risk being sued for defamation. Jane suggests publicising the ‘remarkable similarity’ between products and letting social media followers draw their own conclusions. “This can often result in a much speedier solution or even translate into positive commercial agreements,” she tells us. “ACID has a lot of experience in this approach so we would always advocate taking advice to navigate through this tricky area safely and without taking risks.”
If you’re feeling worried about copying of any kind, the best thing you can do is record all your work so you have evidence that ideas originated with you. Camilla recommends posting sketches to yourself so they are dated and not opening them. This will also help you if someone else wrongly accuses you of copying – a situation we’ll discuss in detail next issue. But overall, the most important lesson is to keep calm and not panic – these situations can often be resolved amicably.
This article originally featured in Mollie Makes 53. Read part 2 of the copyright special, Help! Someone Says I’ve Copied Them!, in Mollie Makes 54, on sale 29 May 2015. Available from all good newsagents, supermarkets and our official online store. Sold out? Download it from Zinio, Google Play or Apple Newsstand.
Illustration: Steph Baxter