Cease and Desist Issues related to copycat and copyright infringement Feed

The GOOD, The BAD, and The UGLY in the Age of the Internet

On March 14, I gave the keynote address for Synergy 3, the International Polymer Clay Association Annual Conference.    Watch this presentation directly on SlideShare (below). Sit back with a cup of tea or coffee to watch the full 45 minutes of entertaining and provocative observations concluding with four recommendations for the arts and crafts community.

 

PLEASE COMMENT if possible.  This presentation tackles an issue that affects both aspiring and established makers and artists and needs to be shared, circulated, and discussed throughout the arts and crafts community. 

CONTINUE THE CONVERSATION.
If willing, you can easily embed this presentation in your website or blog.
SlideShare provides the embedding code in four different sizes (height and width) or a code specifically designed for WordPress. Just click on the EMBED button on SlideShare (above the lecture).

Links-gold

 

Find links to the books, websites and information mentioned in this lecture on  ASK Harriete at:  http://tinyurl.com/bnp7gps

Find the full text and RECOMMENDATIONS in this lecture at:
http://www.harriete-estel-berman.info/Good-Bad-Ugly-in-the-Age-of-the-Internet-keynote-lecture.html
http://tinyurl.com/axyasuo

Depending on the reactions, some future posts on ASK Harriete will expand on the topics raised.  Contact me privately through the email link in the left column of ASK Harriete or leave a COMMENT.

 


A response to comments on Copycat, Copyright and Coincidence.

Many people left comments regarding the series of posts about "COPYCAT, COPYRIGHT or COINCIDENCE". Here are some responses to a number of comments.

Metalsmith2010 This series of posts was originally based on an Opinion article I wrote for the January 2010 issue of Metalsmith Magazine, Volume 30/No.1/2010.  I hope you get a chance to read the entire article in the magazine, but to facilitate a dialog on this blog, a summary of the opinion is presented in an earlier post. 

My response to some of the comments (in no particular order) is below.

TamryGentrybacklit steering wheel_433Tamra Gentry asked how I feel when people say, "There's nothing new under the sun?" as a rationale for copying other artists' work.  My reply....a few people try to justify allowing copycat work to be sold in a show or included in a book by rationalizing "there is nothing new under the sun."  While I agree that we all build on a foundation of ideas established before us, this doesn't justify copying other people's work and taking credit as the originator.  It takes a lot of work to be "inspired" and create something new and innovative.  The originator should be recognized for creating and the imitator should be labeled "copycat."   

K. Alice asked, "How to prove that someone is a copycat?" I don't think you have to prove that the work is a copycat unless you are taking the case to court. The issue here is whether a "reasonable observer" would conclude that another artist's or maker's work is too similar or that the style or technique inappropriately resembles your own.

CERF Shoe by Harriete Estel Berman is constructed from recycled tin cans. It has a UPC toe and looks liek a Converse style sneaker. It is comparable to a person who steps on your toes in line.  If they did it one time, apologized and didn't do it again, then you would graciously accept that it was an unintended accident or coincidence. If that person repeatedly steps on your toes, you would no longer consider this unintended.

In most circumstances you will be making a judgment call, dividing hairs, whatever you call it.  There will always be room to quibble about differences.  But I have seen multiple examples where similar work seemed like no accident. It was inappropriately close, i.e. a "copycat" to any reasonable observer.

CERF shoe by harriete Estel Berman constructed from recycled tin cans, shoe laces are a peice of recycled copper wire. If you're concerned about an incident of copycat work, ask your fellow makers, artists or mentors for their opinion.  Ask for help from individuals you respect.  

Everyone should be an advocate for their own work, but I never suggested being rude or showing disrespect. Polite professional communication while standing up for your work is always best.

As a comprehensive statement, I would like to emphasize that this copycat issue should be part of an ongoing discussion and mission statement within the arts and crafts communities at large.  This is about fundamental ethics. Teaching and learning from one another is an honored tradition for skill development, but copying another maker's work should not be condoned nor tolerated.  I'll admit the boundary line is not always perfectly clear, but we should be united in saying out loud to the entire community, copying should be discouraged and originality should be encouraged.   

The article in Metalsmith Magazine and these blog posts are an effort to openly discuss a problem that may have always been there.  Not discussing the issue and whispering complaints behind closed doors doesn't do anything to rectify a problem.  Imitators get away with it only if everyone remains silent. 

CERF SHOE by Harriete Estel Berman is constructed from recycled tin cans looks like a Converse sneaker with a UPC toe. Raising the issue of copycat work may be difficult in the real world but you could be performing a great service. A copycat will always have a limited audience for their work. The copycat person has much more to gain by finding their own voice, and in doing so, discovering an exciting future of possibilities. 

IN CONCLUSION: While I don't think that we can entirely eliminate copycat work, I believe that the best protection is a clear message of community ethics. 

I hope these posts offer a forum for ongoing discussion. Even if you are reading this post months later, you are welcome to leave your comments.

Save the Cease and Desist letters for your future reference. ["A kinder, gentler Cease and Desist Letter" and "A Formal, Assertive Cease and Desist Letter"

Share this information with your fellow artists and makers. Discuss this issue at your next Critique Group or online.

BermaidLady72gr
Bermaid  Pin © 2010
Recycled tin cans, sterling silver rivets,
Artist: Harriete Estel Berman
Available for purchase on Etsy

Become an advocate for other artists. When you see copycat work, it is your responsibility to say something.  Either contact the originator, send a letter to the copycat, or speak to the exhibition or craft show organizer.

Perhaps the Internet can be a tool for effective change, rather than a medium where people are afraid of being copied.

Harriete
www.harriete-estel-berman.info 

 



Copyright - Legally Protecting Your Work

Many artists are concerned about protecting their work from copycats and copyright or trademark infringement.  It is certainly understandable. All of us invest a great deal of time, energy, and money in making our work. 

UncleBensCupgr
Never Let Your Eyes Deceive You From
the Real Truth © 2001-04
from Consuming Conversation
Recycled tin cans, bronze, 10k gold,resin
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Obtaining your own copyright is relatively easy and inexpensive.  Go online to the U.S. Copyright Office where you can access lots of information and a page of frequently asked questions.

 

In general, you need to fill out the copyright application, include appropriate documentation, and pay the required fees.  Copyright may be for an individual work or a related series of work.

As an additional resource, Nolo Press offers multiple pages of do-it-yourself copyright information on their web site for free.

 

Con2gr.
Consuming Conversation 2 © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Two questions that people often ask me.  Here are the questions and the answers copied directly from the U.S. Copyright Office page of frequently asked questions. 

 

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

These answers bring us directly to several critical issues:

First, it is not necessary to apply for copyright immediately to be protected.  You can apply ("register" your copyright) at a later time.  

Second, what you have created may not be copyrightable. To register (or to be granted) a Copyright with the U.S. Copyright Office you are going to have to prove that your idea is "original" to the anonymous reviewers sitting behind desks at the Copyright Office. This can be a challenge.

I have been turned down for copyright on some of my work. Using found objects of any kind from product packaging, to twigs and seeds, puts you in a kind of gray area by the narrow perspective of the U.S. Copyright Office. Same goes with trying to copyright functional items such as a necklace or a chair. You need to prove that your design for a necklace or chair, as an example, is a truly unique design.

ConvRstackgr
Consuming Conversation © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen


So, ultimately, is it worth it?  This is the topic of discussion for the next post.

www.harriete-estel-berman.info


Cease and Desist Letters - A formal, assertive example to help artists and makers protect their work.

CeaseandDESIST

When someone copies your work, what can you do?  In the previous post, a sample letter with a polite approach was provided.  Many artist's feel that a personal appeal to "a fellow artist or maker" is better than being confrontational. If that works, fine, but . . .

If you tried being polite and it hasn't worked or you know an imitator will defy your initial efforts, it is time to get more formal and assertive to protect your rights. 

SINGLE Pin by Harriete Estel Berman is a signature UPC design with BERMAIDgreen As mentioned in the previous post, it would be wise to step back and take a critical look at the situation.  Is this really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends, mentors, and fellow artists for an honest assessment.  

SINGLE pin by Harriete Estel Berman uses UPC with her pseudonym Bermaid Collect "evidence" of infringement (e.g. side by side images of your work and the copycat work).  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the Internet to search and start asking around. Examine the details as well as the overall design.  

Ultimately, whether intentional or coincidence, if it is infringing on your work, you should take action. To keep this in perspective, remember that the copycat is taking something away from you.  They are benefiting from your work and hard-earned reputation.  




A sample of a formal Cease and Desist Letter is provided below.  Modify it to adjust for your specific situation.   Send it to the offending artist or maker first.  Hopefully this will be enough to resolve the issue.  However, if you get no reply or a belligerent reply, send copies to the offending artist/maker's gallery or representative and any other place where their work is shown (exhibition, book, magazine, etc.)  Your correspondence with these other parties establishes the fact that your work is "prior art" and that you do not condone imitations.  Raising awareness is your most practical path to stop the copycat.  If you do not take action, people may begin to think that YOU are the copycat.

sample Cease and Desist Letter

Name of artist
address
city, state
web address
email

Address of artist, gallery or exhibition
City, State

RE: Cease and Desist Copyright Infringement

Dear

I am the owner of and have reserved all rights in the artistic work titled, [name of work] (hereinafter, the "Work"), which was first expressed in material form on [original date of completion].

It has come to my attention that your work titled, [name of work] imitates or is substantially similar to the copyrighted Work.  Consequently, any offering for sale, sale, and display of such work constitutes infringement.   

Or
It has come to my attention that you have made and offered for sale at [name of gallery or exhibition] works which appear substantially similar or in imitation of the Work, which infringes my trade dress rights in violation of 15 U.S.C. §1114.

Additionally, your use and display of these works may cause or has caused confusion and mistake among purchasers thinking that these are the Work or derivatives of the Work, in violation of 15 U.S.C. §1125.

In light of the above, I must insist that you immediately cease and desist from all further use, making, offering for sale, sale and display of all artwork that is confusingly similar to the Work, and to cease advertising and promotion of such works.  Please notify me in writing that such actions have been taken.  

Alternatively, you may request a grant of limited and non-exclusive use rights which would require that you pay a license fee (among other terms), all of which would be the subject of a separate agreement.

If I have not received your response by [date], this matter may be handed over to my attorneys for further action and additional expense for which you could liable.

Sincerely,
Name of artist
address
city, state
web address
email

If readers of ASK Harriete would like to copy this letter for future reference, I am giving you my permission for future use.

CRITIC-LEAD100
Metalgramatic © 1986
from Critic's Choice
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

If you have additional suggestions to improve this sample letter, please don't hesitate to add a comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

Harriete


 

 


 

 


Cease and Desist letters - A "kinder, gentler" example to help artists and makers protect their work.

Discovering that someone else's work is uncomfortably similar to yours can be jarring.  Why would they do that?  It is not flattering -- you feel violated. That copycat is taking something away from you.  They are benefiting from your hard work and hard-earned reputation.   

Copycat
It would be wise to step back from the emotions and take a critical look at the situation.  Ask yourself if it is really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends for an honest assessment.  It may be time for you to evolve your own efforts toward more unique work.

Eye of the Beholder Pin constructed from recycled tin cans by Harriete Estel Berman.
   Eye of the Beholder © 2009
   Recycled tin cans
   Artist: Harriete Estel Berman 

However, if the other artist's work is just too much of a coincidence, you should take some action.  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the internet to search and start asking around. 

It surprises me, but even with mounting evidence of an imitator, many artists and makers are reluctant to assert themselves for fear of hurt feelings or being labeled a "mean person."

While you have likely heard that there is no such thing as a "nice" Cease and Desist letter, there are occasions when an artist should consider approaching another artist with sincere concerns to protect their work from copycat work or   coincidence.

You can raise the issue and awareness without being confrontational

Below is a sample letter for politely approaching an artist who is doing work uncomfortably similar to yours.  (A more formal Cease and Desist Letter will be in the next post.)  Simply letting them know that you are aware of the similar work may be enough for them to change direction.

Make your own modifications to this sample letter as necessary for your circumstances. Suggestions are in brackets.

sample letter

Date: (Month Day, Year)

Dear [fill in name here],

I am a/an _______  [pick one: artist/ maker/ craftsperson] working  with ____________________ .  [Describe your materials or design style and how long you have been working in this style or with this media.] 

Last week, ___________ [pick one: Google Alerts, a fellow artist, book, magazine, etc.] brought to my attention that you recently published an image of work that appears to  ____________ . [Describe the offending aspect that you feel copies your work without being rude or insulting. Stick to the facts.]

I have been working with this _______ [material, media, style] for the past _____[number] years while your use seems to have been launched more recently.

At this time, I respectfully request that you discontinue this particular line of work that so closely resembles my work. The fact that your work is so similar, significantly increases the possibility of confusion between my work and yours.   Most galleries, exhibitions, and collectors will avoid showing or buying work that appears to copy an earlier artist's prior work.

Whether the similarity in your work was intentional or coincidence, I hope that this notice will allow you to rethink your efforts.  I sincerely believe that each artist will achieve their best work by finding a unique path that provides long term growth and personal expression.  Please consider taking your skills in another direction.

I would like to resolve this issue between the two of us without further publicity or involving formal legal action.   Please email me or give me a call at ____________ [telephone number].

Thank you in advance for your cooperation.

Sincerely,


Name of artist
address
city, state
phone number
web address
email address

This is the "polite" approach. If readers of ASK Harriete want to copy my sample letter for future reference, go right ahead.

I also recommend that you use the Internet as a tool by setting up Google Alerts for your name, titles of your work, materials or techniques so that you can catch copycats early.  And when you find one, at least send this polite letter of concern. 

If you have additional suggestions to improve this letter, please add your comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

A sample of a more formal Cease and Desist Letter will be provided in the next post. Future posts will cover legal protection and other recent points of discussion.

Harriete
www.harriete-estel-berman.info


Designing to Avoid Copycat, Copyright or Coincidence

Previous posts discussed the problem of copycat work. I hope that you have had a chance to read my Opinion article titled "COPYCAT, COPYRIGHT or COINCIDENCE"* in the January issue of Metalsmith Magazine, Volume 30/No.1/2010.

Flower Game Board Earrings in Blue and Pink by Harriete Estel Berman
  Earrings © 2010
  Recycled Game Board
  Harriete Estel Berman

While researching for this article and interviewing artists and makers, several suggestions surfaced about how to design your work during the creative and fabrication process to avoid copycats or, at least, minimize the chances.

The suggestions below are meant to be approaches or methodologies during the designer's or maker's creative process.  Legal methods such as a Cease and Desist letter and applying for a copyright or trademark are covered in other posts.

1) Avoid using any commercial kits, forms, patterns, molds, glazes, etc.  For example, PMC (Precious Metal Clay) makers can buy patterns to emboss textures. If you can buy these patterns so can other people. Same goes for patterned metal sheets, pre-printed papers, etc. Create as much original materials for the fabrication of your work as possible.

 

Small Plexiglas Beads fabricated by Harriete Estel Berman
  Plexiglas Beads I made for new work
  © 2010
  Artist: Harriete Estel Berman

2) Use more unusual materials that you find from obscure resources or make yourself.  For example, using beads purchased at Michael's art and craft store means that anyone else can buy the same materials. While it takes greater effort to create each and every component in your work, the resulting unique pieces make it far more difficult for other people to duplicate your signature style. In other words, make your own beads, paper, colors, patterns, glazes, etc. from start to finish.

 

Deliema of Desire Slim Fast Candy Box with M & M thumb tacks by Harriete Estel Berman 3) Reinvent your materials. Even taking common every day materials and using them in new innovative ways can create a signature style.

 

 

4) Make your work more complex, and detailed. This will eliminate many would-be copycats who don't want to invest the same amount of labor or tedious effort.

 

Deliemma Desire Candy Box with Flower Bow by Harriete Estel Berman
  The Dilemma of Desire © 1997
  Recycled tin can candy box
  Artist: Harriete Estel Berman
 Candy box hold tacks that look like
  M & M's -

5) Continue to innovate and develop within your own signature style.  Continuously repeating one style, fabrication method or technique without growth allows other people to catch up.  Constant evolution is the key!

 

6) Develop mastery and expertise in your own techniques. Working with the same materials over many years with constant innovation can lead to mastery of skills and expertise that would make it impossible for others to copy your signature style. 

 

Deliemma of Desire Candy box with Flower Inside pattern by Harriete Estel Berman
  The Dilemma of Desire © 1997
  Artist: Harriete Estel Berman
  Inside view of candy box.

7) If you work with commonly available materials (that anyone can find, buy or cast) you will have to make more work, better work and be better at your own publicity and promotion than anyone else.  You can't depend on copyright as a protection.

 

 

 CELTICcircle

8) If you work with historical forms and symbols (such as Celtic Circles, as just one example), it will be difficult to develop a signature style or identity. Innovate beyond your original inspiration. Try to develop your own vocabulary of forms.

 

9) Don't teach workshops in your signature style.  I know this isn't going to be a popular statement.  Workshops are great for teaching a wide variety of skills, but I'm shocked when artists and makers teach their signature technique or style.  They are teaching a whole room of people to be copycats. 

 

Pins Words Like Winter Snowflakes from recycled tin cans by Harriete Estel Berman. Quote is from Homer. Commentary about Conferences.
 Words Like Winter Snowflakes (pins)
  © 1999-2004
 Recycled tin cans, brass, s.silver,
 Artist: Harriete Estel Berman
 Pins can be worn as a group,
  individually or rearranged.

What else can artists do in the design of their work to prevent copycat work?

 

PAINT BOX AND PINS constructed from recycled tin cans by Harriete Estel Berman based on a quote by Homer.
 Words Like Winter Snowflakes
 © 1999-2004
 Recycled tin cans, brass, s.silver rivets
 Artist: Harriete Estel Berman
 Photo Credit: Philip Cohen

Do you have ideas to share about how to prevent copycat work? Please share you ideas with others as a comment. 

 

*Download "CopyCat, Copyright, or Coincidince: Maker Beware" by Harriete Estel Berman written for Metalsmth Magazine. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Creative Commons License
Harriete Estel Berman by ASK Harriete is licensed under a Creative Commons Attribution 4.0 International License.
Based on a work at http://www.askharriete.typepad.com.


Copycat, copyright or coincidence - simple steps for prevention.

Metalsmith Magazine 2010This is the second post regarding the 2010 Winter issue of Metalsmith Magazine, Volume 30/No.1/2010 in which I wrote an Opinion article  titled, "COPYCAT, COPYRIGHT or COINCIDENCE". This post discusses some of the steps that can be taken to prevent or resolve problems of copycat, copyright or coincidence. 

After many interviews, I now realize that artists and makers too often lack confidence and knowledge about what actions can be taken to reduce or confront imitations.  I was especially surprised to learn that many artists are reluctant to take any action at all .  It makes them uncomfortable or they do not want to be viewed as a “bad guy.”   This has got to change!   

Would you stand in line and let someone step on your toes? Would you let them push you out of line? Wouldn't you say something? Letting a copycats infringe your own signature style is a very close parallel.

Artists and makers can take simple and inexpensive defensive measures to protect their designs and techniques.  No matter how the imitator got there, whether copycat or coincidence, the imitation looks like copyright or trademark infringement to me and everyone else.

1) Academic programs, workshops, and instructional books must make this issue part of their curriculum.  Any mentor or teaching forum should clearly state that copying is not ethical and should encourage students to create their own identity. 

2) Each artist and maker is personally responsible and must be an advocate for his or her work. Artist’s should not be bashful or reluctant to stand up for their work and their livelihood.

3) The artist should send a copy of a Cease and Desist letter to every exhibition, gallery, show, wholesale/retail event or book that displays copycat work that infringes. 

4) No exhibitions or craft shows should admit work that is a "copycat" in nature. This includes student and emerging artist shows. While this is impossible to implement 100 %, jurors have a responsibility to be well informed about their field. It is also very helpful to appoint jurors to review work within their field of expertise. For example, I would not be a good juror for a glass show as this is not my area of expertise.

5) Finally, everyone can help. Copycats should not be allowed to hide in broad daylight. Raising awareness is the most effective remedy.  Whenever or wherever anyone sees copycat work, tell the gallery owner, exhibition sponsor, or website owner about it.  Most professional venues value their reputations and will remove copycat work that is brought to their attention.

Lifesaver Bracelet - Identity Collection by Harriete Estel Berman The next post suggests modest changes artists, designers, and makers can make to the  design and fabrication of their work
to help prevent and protect your work from copycats and/or copyright infringement.

Harriete
www.harriete-estel-berman.info

Lifesaver Bracelets constructed from reycled tin cans by Harriete Estel Berman

Lifesaver Bracelet - Identity Collection
© 2007
Recycled tin cans,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
more info




Copycat, copyright or coincidence? An Opinion in Metalsmith Magazine

In late January 2010, the winter issue of Metalsmith Magazine, Volume 30/No.1/2010 includes an Opinion article that I wrote titled, "COPYCAT, COPYRIGHT or COINCIDENCE". This publication should be at your newsstands or waiting in your local library.  Subscribers of Metalsmith already have their issues.

I hope you get a chance to read the entire article in the magazine, but to facilitate a dialog on this blog, a summary of the opinion is presented below.

Metalsmith2010How often have you said or heard, “That looks just like . . . (some other artist’s) work.”   The arts and crafts community is suffering from “copycat-ism” or more accurately, infringement of intellectual property or copyright infringement.  It is infecting the entire art and craft community, from schools and universities, to wholesale/retail shows, stores, galleries, books and even award competitions.

The problem is not new … but the Internet has given this issue greater visibility, and at the same time, a viable path for advocacy to confront this issue.

For years major craft shows have grappled with this problem.  But what about other situations such as commercially oriented wholesale/retail shows, galleries, websites, or other market venues?  What about knock-off manufacturing?  In my research for opinions, it seems that some imitators actually justify production of copycat work with the fact that the originator is not in the same show.  GASP!  I envisioned the guys at Times Square showing me “Authentic Rolex” watches from the inner lining of their overcoats, or Gucci bags at a flea market. So who loses? Actually all of us are hurt by this practice. 

The remainder of the article goes into more details and outlines how we can help our community.  In the next few posts, I will be offering a practical action plan, a few tips on how you can prevent this from happening to you and two samples of Cease and Desist letters.

Vigilance and vocal opinions are necessary to help inform the arts community.  Please share your tips and suggestions with others as comments below this post and upcoming posts.

Do you have any experiences with copycat, copyright, or coincidence? I think the only way to deal with this is open discussion.

Please feel welcome to leave a comment below.

If you have a lot to say (especially if you have images of originals and copycats or look-a-likes, as examples) you may ask to be a "Guest Author".

Harriete
www.Harriete-estel-berman.info