Previous month:
December 2015
Next month:
February 2016

January 2016

Why I Can't Justify Ignoring the Copycat

WHY-I-cant-justify-ignoring-copycat.2

Copies-copycat-72
Several previous posts dealt with what to do if someone or some business is copying your work. Among the comments and responses to these posts and related discussions, more than a few artists and makers suggest that they would prefer to ignore the copycat (whether friend or foe) because the situation is too uncomfortable or too unlikely to reach an acceptable outcome.  The "originator" typically justifies ignoring their copycat with a rationale such as "I have moved on" or "I don't care so much about old work" or other similar justification.

I disagree with ignoring the copycat -- although I can also acknowledge the discomfort and uncertainty of outcomes.  But, I can not simply ignore the copycat regardless of the situation for two very fundamental reasons. 

1. Copies affect your income and reputation possibly devaluing both your past and future artwork.

2. Copies may be used in contexts that damage your reputation or trademark.  

Seeing copies of your artwork used in an advertising campaign, printed on t-shirts or sold at an undesirable venue may not be how you want your reputation exploited in public.  Use your imagination.  Would you want your work to represent issues, people, or topics that offend you? In a comment on a previous post by Cindy, "Art and photos may be used to advertise or promote businesses and causes that are in conflict with the artist's beliefs. It makes it appear they are sell outs or hypocrites because not everyone will know it was infringement and not a paid use." 

What if the copy impacts the value of your brand/trademark?  For example "Tiffany and Company sued Costco for the sale of counterfeit TIFFANY diamond engagement rings. "

Here's another example of how a copycat can affect your revenue from Natascha Bybee, Past President of the Seattle Metals Guild and reader of ASK Harriete. "I read an article about an artist being copied. I was very upset on their behalf, but sadly could not remember the name of the company. [Later] I saw "their" product at a craft show in December, but I didn't know if I was dealing with the originator or the copier, so I didn't buy anything and it made me have a more reserved attitude towards their booth. Since I couldn't distinguish between the two artists, I just avoided them altogether and would never recommend them." 

Video clips from Antiques Roadshow show several examples of the negative impact of copycats (shown below) where fakes, copies of the original, or outright forgeries impact the value of all the work attributed to an artist or maker.

Listen to the very end of each video segment to get the triple whammy full impact of how fakes/copycats affect value. Customer confusion is the relevant issue. It doesn't matter if the copy is not of the same quality, or the same patina, or finish, if it causes customer confusion the copy still affects the perceived value for all the work in that genre as buyers doubt the authenticity.



Charles-Loloma-BraceletsAn original receipt for this Charles Laloma Bracelet is considered "as important as the bracelet" because "there are a lot of fakes on the market." Any potential buyer will question every time, "Is this real? Or is it not real?" 

 

  Fake-George-ohr-VaseFake George Ohr Vase, ca. 2013 is made to deceive "by a person in the northeast who keeps producing them and selling them on the Internet. They appear, they are seen, and they are purchased by people who just don't know."

  Clementine Hunter PaintingsClementine Hunter Paintings, ca. 1980

 

  Fake-Remmington-Russell-BronzeFake Remington & Russell Bronzes

 

 

Let me know in the comments or privately  if you know of other examples. 

More personally, whether you sell your work online, from your studio, or in a gallery, a purchaser expects their purchase to be unique, worth the price, and a consummation of a special relationship with you.  If your customer finds a cheap knockoff elsewhere, they are going to feel ripped off.  The question of authenticity will raise doubts about your work and your reputation.  You may never know how many customers may withhold recommending you and your work to their friends.

What to do if you find a copycat copying your work.

  • Evaluate the situation carefully. Recommendations are in the post What is a Copy. Copycat?
  • If images are posted online, a simple "DMCA Take Down" might force the website to remove the images. This is easy to do and takes about 15 minutes and it is free. 
  • Contact the copier with the Initial Copycat Communication.
  • If the copycat work is shown at a gallery, write to the gallery.
  • Private and confidential will be your initial approach before taking stronger tactics.    

The suggestions in this post aren't guaranteed to work.  The point is that some diligence and effort may protect your work and your reputation by stopping copycats as soon as you become aware of them. Speaking out and addressing this issue is your first step.

Perhaps not every situation demands a full out response, but choosing to automatically ignore a situation can have some very negative consequences.  I believe that the recommended initial actions in these posts do not require extensive effort and have a reasonable chance to stop the copycat at an early stage before much damage is done.   

What do you think?

Harriete 



Dealing with Copycats in the Community!

Dealing-with-Copycats-Community
In the previous three posts
 lawyer Rachel Fischbein provided expert advice from her legal experience about what to do when a copycat copies your work. (Links to her posts are in the text and at the bottom of this post.)  Her approach was methodical and measured in it's response. All of it was super great advice.

In hindsight, looking at those posts, there seems to be an implicit presumption that the copycat was a large company or brand name corporation or knock-off discount retailer. Sure that happens.  As a lawyer, Rachel Fischbein most likely deals with such cases where significant money may be at stake, potentially leading to a resolution through a "licensing or royalty payment for the use of our designs."  

But a number of copycat scenarios brought to my attention by readers are of a more common type involving someone from our own art or craft community, e.g. a student, participant in our workshop, fellow artist or maker, friend or foe.  I hear about this all the time.  Sooner or later, most of us become aware of someone else's work that is just too similar our own.  

When you experience such a situation, a key question might be, "Are copies necessarily an intentional act of the copycat?" And how should you handle this situation? Do they understand the consequences?  

Magnes-Sign-Victor-Reis-Fence
Original Victor Reis metalwork from the gate of the Magnes Museum now shown in Berkeley.

This is not a new problem.  I found an example of this exact situation in the Archives of American Art Research Collections consisting of an exchange of letters between two metal artists in the 1950's.  The first letter is from Victor Reis, a San Francisco Bay Area metalsmith of local renown at the time (ca. 1956).  In the letter Reis writes to Margaret De Patta about a ring she is selling which he declares is a copy of his own design. While Margaret De Patta is well known now for her jewelry, at the time she was a struggling art jewelry maker (just like the rest of us). An excerpt from the Victor Reis letter is provided below. 


Victor-Reis-drawing-ring"Dear Margaret, This letter is not suppose[d] to be a bad one. But I['d] like to express my feelings and talk open and free to create a clean atmosphere even if there are some clouds around. A visit in the city, a look into Nancy's display, gave me a strange feeling. I saw the Margaret De Patta display with a ring about 100% like one of mine. " .... He continues,  "It's not  a complex of me, that I believe so often to find my work executed through others, like a necklace through Merry Renk."  Victor Reis' letter continues with more examples and small drawings. 

De-Patta-maker's-markMargaret De Patta replies in a letter, "Dear Victor - Your letter came several days ago. Needless to say I have given it much, much thought. First I want to say that I am glad that you have written openly to me. A person can never honor statements that are made behind one's back, and I have heard of these from several sources."

De Patta's letter continues and suggests that the San Francisco Metal Arts Guild  board should establish a method for mediating such matters.  Obviously, 50+ years later we (the arts and crafts community) still have similar issues and have not yet agreed upon a method for mediating these copycat scenarios even among friends. 

Encourage-Communication-with-the-copycat

So who is the copycat?

I have not yet found any documented resolution regarding the issue discussed in the letters, but I was impressed that Victor Reis and Margaret De Patta did follow a vital precept endorsed by Rachel Fischbein, to initiate the "Initial Copycat Communication." Write to the copycat offender with a non-threatening business like manner seeking an amicable solution with documentation.  


What-is-a-copy-copycat copyWhat would your documentation include? Rachel Fischbein in the post "What is a Copy? Copycat" 
 describes a methodical approach to evaluating whether something is a copy. The key element to this evaluation is to document the similarities. "Figure out who's product was created first" and "Determine if the copier had access to your work." 

 

Here-list-copycat-communication

Here is my list for copycat communication:  

  • Compare and evaluate the copycat version to your work.  
  • Document where they may have seen your original work.  
  • Write a private, non-threatening letter to the copycat.
  • Follow Rachel Fischbein's recommendations for a structure of this letter.
  • Discuss the situation with the copycat.
  • Do all this direct communication before going public on social media.

During this evaluation, keep in mind that the technique* or materials can not be copyrighted -- paint is paint, clay is clay, metal is metal, enamel is enamel, etc. So the copy has to copy a style, design, aesthetic  or conceptual component in the "copy." 

Going back to the reference to the Margaret De Patta letter she says, "A person can never honor statements that are made behind one's back, and I have heard of these from several sources." Take the time to write a civil communication documenting the apparent copycat scenario as you see the situation.  Just like Victor Reis reaching out to Margaret De Patta, if you have concerns, it is best to direct them privately in your "Initial Copycat Communication."


These are your first and second steps before jumping to public accusations
 on Facebook (or another public forum). This may fly in the face of our natural impulses to either retreat into a cocoon to avoid any confrontation or publicly "burn" the offender.


Facebook-dastardly-deedsHowever, in the age of the Internet, more than a few online discussions dealing with a copycat scenario start with a Facebook post along the lines of  "what shall I do?" or thinly veiled references to dastardly deeds .

The posts by Rachel Fischbein taught me that no matter what the copycat violation, a key message is to take professional, non-threatening and clearly thought out actions before burning any bridges or escalating to a crisis.  

While I have no easy solutions to the slippery territory of the copycats that live in your community, I do think it is worthy of discussion and communication, hence this post.  

Let me also acknowledge that many individuals have said that pursuing this level of documentation and communication with the copycat is a "waste of time."  The "originators" is this camp typically justify ignoring their copycats with a rationale such as  "I have moved on." or "I don't care so much about old work." or other similar reasoning.

I disagree -- because there are moral, legal and financial consequences of ignoring a copycat, and of being a copycat. This will be the subject of the next post.

In the meantime, I welcome your opinions about this topic.

Harriete

 *"Copyrighted technique"?  In short, there's no such thing.  The description of a technique may be copyrighted to the extent it includes creative elements, but the underlying technique, and the factual description of it, are not subject to copyright protection. SonnabendLaw Intellectual Property and Technology Law,Brooklyn, USA

Margaret-De-Patta-ring-Antiques-RoadshowAppraisal of Margaret De Patta jewelry on Antiques Roadshow

 

 

 

 

 

 

  Margaret-de-patta-jewelry

Margaret De Patta jewelry including ring, brooches, and earrings appraisal on Antiques Roadshow
 

 

 

 

 

Read the previous posts by Rachel Fischbein:

What-is-a-copy-copycat copyWhat Is A Copy? Copycat?

 

Initial-copycat-communicationInitial Copycat Communication

 

 

Going Public-speaking-up

Going Public: Speaking Out! Public Disclosure of a Copycat Complaint


Going Public: Speaking Out! Public Disclosure of a Copycat Complaint

Going Public-speaking-up
Sometimes when the copying is blatant and
direct communication between the two parties fails, the designers, artists or makers who have been wronged by a copycat consider reaching out to the public for support to draw negative attention to the misbehaving copier.

Public support can be a helpful move, if done thoughtfully, particularly for a small company copied by a large company. Before you take this drastic step though, be mindful of the potential consequences, and think carefully about how you’ll plan the public statements. Public shaming is particularly tempting when you’re angry. Before you go to the Internet to publicly vent frustration, consider what your long-term goals are and the impact your behavior will have on your business.

This is the third post by lawyer Rachel Fischbein about dealing with a copycat situation. The first post was "What Is A Copy? Copycat?"  The second post was "Initial Copycat Communication." ASK Harriete recommends that you read these posts before taking any actions. Fischbien recommends focusing on the issue, not the people involved.

Rachel-Fishbein-headshot
The opinions expressed in this post are by the author, Rachel Fischbein, Esg.,
founder of Law On The Runway, and do not necessarily reflect the opinions of ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete.  As with the previous guest blog posts by Rachel Fischbein, please consider this blog general information, not legal advice. Should you have a concern about copyright infringement, please speak directly to an attorney to get advice on your unique situation.

      _____________________________________________

When preparing to make a public statement about the copycat incident, refer back to your notes of the timeline and educate yourself on copyright laws. Make sure what you are saying publicly is accurate, and you’re being fully truthful. You may want to consider publishing a longer document as a blog post, a downloadable document, or even a website to explain the copying and the interaction with copycat. Include all the important details, so it's clear you aren’t trying to spin the truth in short social media posts. Curious minds will be looking for the facts needed to come to their own conclusion. Walk the readers through the legal standards of copyright infringement and how the facts of the situation show infringement. You may want an attorney’s assistance for this.

While you may be dealing with difficult personalities of the copycat, always keep the statements and public conversations focused on the copyright infringement facts, and not about the people who represent the copycat business or designer. You may encounter a person on the copycat’s side who is deceitful and disrespectful, but your statements shouldn’t be about that person’s character traits directly. Limit your statements to the actions taken by the copycat and the copycat's  representatives.

You may post copies of emails or other documents sent to you by the copier, if the documents or emails were not sent after a promise of confidentiality from you. Be cautious though when using most intellectual property created/owned by the copycat. You may post only want it necessary to make your point, using the Fair Use doctrine of Copyright. Do not copy their logo to add their branding or unnecessarily take screenshots of their website for reposting. When in doubt, consider linking directly to the copier’s website. Be sensitive to their intellectual property and respect any information that they may have shared with you with an expectation of confidentiality.

 

Going-Public-reputation-showcased
Remember your reputation is also being publicly showcased.
This public statement is not only a reflection of the copycat’s business practices, but your reputation as well. Write your statements with professionalism and care. Try to showcase your logic and a desire for justice. Have a friend who doesn’t know about the issue read your statement first, before you publicly post anything. Ask for honest feedback about how your business looks in light of the posting. Does the statement foster the type of reputation you’re trying to build for your business? A public statement being passed around the Internet may be someone’s first introduction to your business. Remember, once you publicly post anything to the Internet, consider that it becomes a permanent posting. Someone may save a copy and bring it back to public attention in the future.

 

Going-Public-tell-communityTell the community exactly what they can do to be helpful.
Go back to your original goals as discussed in post #2 about Initial Copycat Communication. What do you want from the copycat? How can others in your community or the general public help you get what you want? If the copycat is a service provider to others in your community, such as a manufacturer with a private label, perhaps you can ask other designers to not use the manufacturer’s services in the future. If the copycat is a large brand, perhaps you are asking for social media sharing and public visibility.

Include your ideal resolution as well into the messaging. Let the copycat know it isn’t too late, and now there’s only shame to suffer through.  Possible resolutions include:

  • A licensing or royalty payment for the use of your designs.
  • A promise to stop creating that product in the future. 

If the copier does agree to a payment or to stop production, be prepared to make one final public statement, if requested by the copycat, letting the community know how the problem was resolved.

Rachel Fischbein

ASK Harriete asks: 

Are there any negative consequences to a public airing of the  copycat situation? (This is assuming that everything that the copy victim has written is professional in the public disclosure.)
 
Can the copy victim be sued for this public disclosure of the copycat situation?

Are there any other negative consequences that the copy victim should be prepared for?

I will try to find some answers.

Read the previous posts by Rachel Fischbein:

What-is-a-copy-copycat copyWhat Is A Copy? Copycat?

 

Initial-copycat-communicationInitial Copycat Communication

 

 


More information: 

Fashion-Law-primer-protecting-your-designsFashion Law Primer: Protecting Your Designs

 

 

Information about Fair Use:

Fair Use Guidelines

 

Fair Use - Is your work "transformative?"

 

Understanding Fair Use in Copyright Laws

 

Fair Use and Copyright Issues for Artists