After the posts last week about copycat problems, Jamie Spinello contacted me on Facebook. Jamie says that she has discovered that three of her necklace designs have been copied almost exactly by Forever 21, Charlotte Russe, and Nasty Girl.
It takes a lot of courage to speak out about these issues. There is no easy solution. Recognizing the problem and a willingness to speak publicly about the struggle to protect your work takes courage, a lot of courage.
Think about the issues presented here. What if this happened to you?
Note: The opinions expressed by the author, Jamie Spinello in this post are hers and hers alone, and do not necessarily reflect the opinions of ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied.
The red questions are my questions to Jamie Spinello.
If you have your own questions, why not ask Jamie in the comments?
PREAMBLE FROM JAMIE SPINELLO:
I am not an attorney, I am only stating what I have learned so far. My actions regarding the copycats have just begun. My story is not yet over.
Before beginning this narration of my story, I'd like to reinforce that it is a good practice to get in the habit of registering copyright for all the designs an artist creates and wants maximum protection. That is a step all artists need to start taking if they are career artists/ designers.
Also, it is $35 per piece to register a copyright online. If your work qualifies (read the details and fine print) you can register a whole "series" for $35 which would save a ton of money. Make sure it qualifies by the definition of "series" as defined by the US Copyright Office, which is a bit different than an artist's definition.
Jamie Spinello story starts with this email:
Thanks for your interest in my story. I appreciate you sharing it. There is misleading and confusing information about whether or not an artist can defend their work. Many people seem to think "no", but if you go to the US copyright office's website, they have a number of free .pdf downloads on the subject available for anyone to read and educate themselves. There they can read about what is called "common law copyright".
"Common Law copyright" is an automatic copyright given to a work upon creation, "pen to paper" so to speak. Common law copyrights are backed by proof of first publication and first sale dates. If you publish something online with an e-commerce site, a record of its existence in time is created and preserved.
For example listing an item on Etsy and paying for that listing fee through PayPal, once it is available for public view, it is "published" on that day, both an Etsy and a PayPal record will exist for this. The first time the item sells, another record in time is created that can serve as evidence, especially if it is through PayPal or another reputable payment service that keeps exact records.
Although it is not required to register your designs because of common law copyright, it is advisable to do so as extra protection, first and foremost because the infringer will suffer a much greater monetary loss once the copyrights are filed with the US Copyright Office site (there are many details about this, read more at the US Copyright Office site) , which makes it a bigger risk for them and it shows that you are poised to defend yourself should someone choose to try to take advantage of you.
I get really upset when I see people say, "Oh well, nothing you can do, can't copyright art" etc., not only because it is a really callous thing to say something like that to someone that has just been robbed, but even more so because it is simply FALSE. The false rumors about artists not having any rights need to stop.
I think the photos speak for themselves.
The way that I found out about all of this, is that I happened to be reading some forums and someone was upset that a big company had stolen one of their paintings and put it on a t-shirt (with the artist's signature still on it and everything).
Right then I thought, "Hmmm wouldn't it be horrible if...." and then I went to Google Image Search and reverse image searched one of my most graphic necklaces.
Within seconds, there were gold plated copies of my design popping up in the Google image results. I was shocked! "This wasn't supposed to happen! This can't be real. This can't happen to me!" I thought.
So after one search, I did another reverse image search of another design, replicas popped up, and then a reverse image search of another, and more replicas popped up. At that point, I decided to educate myself as fast as possible about what my rights were regarding copyright infringement and to seek an attorney.
How long ago did you make this discovery for the necklaces?
I discovered the first knockoff of my work at the beginning of October 2013. I discovered many more of my necklaces and earrings being knocked off by well-known stores all on the same day.
After I posted about the first infringement that I had found, people messaged me about more infringements that I had not even seen yet. Some of my designs have been for sale online and through large retailers for many months in 2013 without me knowing.
I think all artists and designers need to do reverse image searches of their work at least once every couple of months and get in the habit of formally copyrighting their work that they want to protect seasonally. This is a serious problem and large mass producers are thinking they can get away with it.
What has been your legal action so far?
I have gathered and cataloged a ton of evidence. I am letting my social media followers and customers know about this issue, so that they can keep an eye out and also know that these knockoffs are not authorized by me if they see them in stores. I am currently working with attorneys.
The copycats are competing in the same market. Do you think the copycats of your jewelry could cause customer confusion?
That was my number one first concern. I don't want my customers thinking that my ideas and my designs are not my own if they see the knockoffs of my work in any of those stores. I also do not want my customers thinking that I willingly do business with those companies. I have a different set of values than a store that mass produces items. I am a one woman handmade studio. I do not mass produce any of my creations. I take pride in designing all of my work myself and making my designs by hand one at a time.
I wonder why you're being reserved about this?
I just want to be as professional as possible by maintaining a level head through this all.
Jamie will you tell us more about your legal battles as your case evolves?
I don’t know what specifics I will be able to give along the way, as I mentioned before I am at the beginning of this. If there are specifics that I think could help others, I will ask my attorney first if it is OK to share details. If nothing else I would be happy to talk more specifics after a resolution is found.