Alibaba Who? Alibaba Me?

Over the past year, I've become aware of mass market manufacturers overtly copying craft work of American artists and makers.  I've even seen examples of the copycat manufacturer actually using a picture copied from the artist/maker's website or Etsy shop, and promoting the same image on Alibaba.com. 

So I wondered.....

 
Alibaba.com is a web site catering to thousands of legitimate businesses worldwide to facilitate international trade.

According to Wikipedia, Alibaba is an exchange website performing a business to business service similar to eBay or Amazon.  Manufacturers can list their products online to a global market.  In 2012, "Alibaba handled $170 billion in sales, more than competitors eBay and Amazon.com combined.^[2]" Quote cited from "E-commerce in China: The Alibaba phenomenon". The Economist. 23 March 2013.

That is really an astonishing number, don't you think?

The Alibaba network can be used by copycats in two ways: 

1) A copycat manufacturer can post on Alibaba.com with explicit offers to make 100's or 1,000s of identical copies of craft work at a fraction of the original retail price.

2) An unscrupulous retailer can initiate requests on Alibaba seeking a manufacturer to fabricate copies based on art or craft images and then the manufacturers (whether consciously or unwittingly) bid for the business.  

Unfortunately, with access to a global marketplace through web exchanges like Alibaba, unscrupulous international manufacturers and retailers can offer to reproduce almost anything -- including copies of creative people's craft and artwork.  

The mass copying of original works without permission is an insidious rip off of artists and makers.  Money is being made by all parties – except the original artists and makers.  

Further aiding the copycat trend are countries like China that do not culturally or legally have the same concept of original art, craft, intellectual property or copyright laws that have been important ethical and legal concepts in western society.

Although China has a growing body of copyright laws, they are still widely ignored. The very concept of protecting intellectual property is often marginalized. Export manufacturing in economies like China is highly competitive -- often live or die, regardless of ethics. Bribery and who you know often prevail as business practices. 

The issues surrounding protection of intellectual property is a huge problem for many western technologies and businesses. We hear about this all the time on the news. Even large corporations with professional expertise and a cadre of lawyers at their disposal are concerned about protecting their intellectual property in overseas markets.

So what can artists and makers do to protect their work?
Lots, but every option that I can think of requires vigilance and action on your part. No one is more responsible for the future of your work than you. 

Options include:

• Reverse Image Search -LOOK for copies of your work. 
• Speak publicly and raise awareness about copycats to embarrass distribution channels, stores and business in the U.S. that market copycat work. This will be your most effective tool as companies do not like bad press about ripping off artists and crafts people.
• Support fellow artists and makers when their work is copied. The ethical and legal issues surrounding copycat work are not based on whether you define the work as "original." This is about creating visibility and awareness for copyright infringement. 
• Design your work so it is difficult to copy. This is easier said than done. 
• File a DMCA 

...more soon.

Harriete Estel Berman

RELATED POSTS:
ETSY: A Home for Copyright Infringers

Jamie Spinello's Copycat Discovery! This wasn't supposed to happen! 

DMCA "Take Down" - Action & Advocacy Against Copycats

Are you rrrready to RRRRUMMMMBBle??  Time for a copycat smack down!

One way for artists and makers to remove illegal or unethical online copies of their images, designs or written content is with a DMCA "take down" letter. DMCA is short for Digital Millennium Copyright Act . 


IPWATCHDOG website has a great article titled, "Sample DMCA Take Down Letter" that explains all the steps along with a sample letter. In summary, "If you are the owner of a copyright you can provide notice to the webhosting company that houses the infringing material, and they will almost always take action."

Your goal is to remove the copyrighted image or information so the item can not be found or sold on that copycat website. 

Finding the webhost for the copycat is free and easy.  There are several sites that offer this research tool called Whois. It literally only takes seconds. Almost every site that is selling domain names will have a Whois feature. If you feel uncertain, do a test by putting in your own domain name. You will understand the results much better.

Here are a few links for Whois search on different sites: 

• Whois.com 
• internic whois.
• GoDaddyWhois

You can do all the DMCA research and send the letter yourself.  It is far simpler and easier than I thought.

I also found a site that will do all the DMCA work for you but there is a fee. "Professional takedowns starting at $199 and "Do It Yourself" takedowns starting at $10 / month!" I have never tried it myself and can not attest to whether they are more effective than just doing this yourself. And I do not endorse a watermark on your images as recommended by this site. 

I understand it takes time to file a DMCA. The time is well spent. If artists and makers more assertively protect their work, copycats will be less likely to assume that they can copy our work without repercussions. The first time you do anything it takes a little learning time, but just like anything else, with practice it gets easier and faster. 

Online hosting sites such as Etsy and Alibaba.com are not held legally responsible for the items posted on their sites....for all practical purposes, their level of advocacy for your work is non-existent.

Even ETSY (which promotes itself as a craft community-friendly marketplace) is not pro-active regarding copyright protection.  In my opinion, Etsy's level of advocacy for its sellers is superficial. Etsy and Alibaba.com are obligated to comply with the Digital Millennium Copyright Act (DMCA), but they routinely claim that they are not accountable for the merchandise on their sites. "They have the benefit of the “Safe Harbor” provision which means that if they implement the procedures dictated by the DMCA, the company cannot be sued themselves for copyright infringement. Regardless, that safe harbor gives Etsy little reason to be proactive in stopping in infringement but only reactive as per the DMCA requirements." 

SUMMARY:
A DMCA notice is relatively easy to do. It is one level of advocacy that you can use to be an advocate for your work. Use the DMCA to take down anything that infringes on your copyright.

Harriete Estel Berman

More posts about copycats issues coming this week! Stay tuned!

RELATED POSTS

HOW 4 SMALL BUSINESSES PROTECTED THEIR INTELLECTUAL PROPERTY FROM CHINESE MANUFACTURERS AND ETSY COPYCATS

 

Pot Luck and Hot Topics with MBMAG

Just in case you'll be in the Monterey, California area on Feb. 16, I will be speaking at the Monterey Bay Metal Arts Guild lunch meeting and social.  This public event is free. 

DATE: February 16, 2014 Sunday
LOCATION: Moss Landing at the Haute Enchilada's back room.
TIME:  12:30 Pot luck Lunch and social. Bring food for the pot luck and get to know the Monterey Bay Metal Arts Guild members. 
           1:00 Short meeting for MBMAG membership
           1:30 p.m - 3:00 p.m. Lecture with Q & A

The early afternoon lecture begins with a brief description of my work, with some examples on hand for closer inspection. Then we jump into some professional development topics and resources that can help makers with their own work. 

Are you suffering from self-rejection? Wonder how to promote your work effectively online? Want tips for the best (low cost to no cost ) strategies for your images, website or blog?

Do you have questions or topics that you would like to discuss? Bring up the controversial issues, burning topics or discuss the every day professional practices that will boost your career.

 

No topic is too small or too hot to touch. Even spicy, well-seasoned  artists struggle every day to be the best they can be. Join the conversation.  Spark the Q & A.

You can also submit your topic request in advance (without raising your hand)? Write directly to me at [email protected] or leave a question in the comments. 

Or I can answer your questions anonymously.

Stay tuned to the MBMAG event page on Facebook or their website for more details.

Harriete Estel Berman

Creativity & Creative Confidence

The simple pencil is a power tool and metaphor.  A pencil line on paper is a physical expression of a thought -- but it can also be erased -- which allows for mistakes, adjustments, and corrections without judgment or consequence. 
The pencil enables creativity.

Throughout the fabrication of my installation, Pick Up Your Pencils, Begin, I often thought about the many meanings and iconic potential of the pencil as both medium and message.

The pencil may be relegated to filling in a bubble on a standardized test.  Or the pencil can be a medium for learning and fostering creative confidence.

Two fabulous interviews with noteworthy innovators highlight the creative process and the necessity to actively expend effort to achieve creative outcomes.

This first interview is with Tom & David Kelley of the design and innovation firm IDEO speaking about their book "Creative Confidence - Unleashing the Creative Potential Within Us All" 

The Charlie Rose program is embedded in this blog or can be watched on the Charlie Rose website.

Their primary message is that everyone can be creative. "We have to stop this process in which we divide everyone into the creatives and the non-creatives." 

"It isn't like creativity comes from on high. You still have to work at it. Your intuition is informed by your experience. The more times you have gone down this path, coming up with a new idea, testing it with people, and trying to understand the right thing, your intuition is informed, so it is easier to leap to that big idea."

The effort of trying, testing, and experiencing failure is a very familiar scenario in my studio. When I struggle to bring new work to fruition, I know the effort, frustration and the failure.  The self-judgment of the early, lesser outcomes drives the learning and paths to experiment with new directions.

I highly recommend watching this interview and reading the book. There are many insightful comments during the interview.  A comment that particularly resonated with me was, "None of our processes gets you away from the creative leap to a new place."  In other words, a creative leap is going where you have never gone before. A leap is a big jump, not a baby step -- a jump that you would not have recognized unless you had already tried the many baby steps.

There is a 2nd interview that I want to mention in this discussion about creativity.

Listen to this Charlie Rose show (below) with Jony Ive, Senior Vice President of Design at Apple, and with industrial designer, Marc Newson. They discuss their "craft" of design. Generally they focus on objects they've designed for the Red collaboration at Sotheby's.

They certainly do know "craft" despite their design background. They describe the gorgeous sterling silver pitcher (left) designed by Henning Koppel for George Jensen with reverence for the craft process. They understand and value "the making" of an object.

A surprising revelation  is that Jony's father was a silversmith, and Marc Newson studied metalsmithing. They discuss this object twice so listen all the way to the end of the show. 

The lecture is embedded in this post or go full screen right here.

Listen carefully for how they describe their design process at length. Each insight is a treat...but what I always appreciate between the lines is that they never say it is easy. They work at their designs. They open the topic of design, simplicity, function, the beauty of objects, the function of tools, and transcending function to achieve aesthetics. The process of making, with consideration of the materials and the fabrication, is integrated into their thinking.

"So much of what we do is trying to imagine something that doesn't yet exist." 

The final thought for today is that they mention sitting and drawing in their sketch books.  

I imagine that they are using PENCILS.

Harriete Estel Berman

 

Committing or Conquering Self-Rejection

Due to a recent turn of events, I am elated, but have come to a realization about my earlier thinking as well.  

Pick Up Your Pencils, Begin has been selected as a finalist for the Eco Art Awards in the category of "Repurposed Materials in Art and Design." With this selection comes professional acknowledgement, and being one step closer to the prize money. That is all good and wonderful, but what I am also all too aware of is, I almost didn't enter.

Right! I almost committed "self rejection."

I think that is why Tom Muir's recent comments in his interview on the Jay Whaley Blog Talk Radio especially resonated with me.

Below is a short MP3 portion taken from the recorded podcast. Tom Muir talks about entering shows and the impact of self-rejection. [This is the first time I've tried inserting an MP3. Try a click. It should play. It worked for me. Let me know if you like this feature.] 

Whaleystudios-5772751selfrejectexcerpt

 

Below is an edited text excerpt from the interview:

Jay Whaley:
"You enter a lot of competitions every year don't you.

Tom Muir:
"I do, yes. I usually enter 12 or more competitions most years.

Jay Whaley:
And you encourage your students to do that too.

Tom Muir:
"Yeah, I sure do.

Jay Whaley:
"It seems to me that you are even delighted by your rejections.

Tom Muir:
"Well, I don't know about delighted, but I have a good sense of humor about that. I had two years in my career where I was rejected from every single exhibition I entered. So I do encourage my students to enter. I think it really helps them resolve their works and take their work much more seriously."

"The other thing that we have seen........ students feel that they could never enter something and get accepted, and then when they see the actual show or see the catalog, they say gosh ...I could have gotten into that. Well you could have but you didn't enter. So it is kind of like a self rejection."

"One year I took all my rejection letters and I covered my office door with that....to show that it's not such a bad thing to get rejected. You could enter those same works in another exhibition the next year and maybe win best of show in a much bigger competition."

My folder of reject letters (above) for just the last few years. I save them for the I.R.S. as documentation of my professional efforts.

In another example of conquring rejection consider this story from Kate DiCamillo, currently National Ambassador for Young People's Literature, a two-year position to promote children's literature through the Library of Congress. 

It took her six years before she published her first book.  She received 450 rejection letters before a publisher finally agreed to publish her work. She kept a notebook of every submission, and rejection. She says, "if there is any message that I can give in that respect, it's persistence and not giving up on your dream."     

FROM ASK HARRIETE: 
So the next time you are considering entering a juried show, "don't self-reject."

If your work fits the requirements;

1. Use the TOP TEN TIPS for Getting Into a Juried Exhibition, Show, Book or Magazine;

2. Enter the show!

Harriete Estel Berman 

FYI Tom Muir will be speaking at the upcoming Professional Development Seminar 2014 titled "Collectors, Collections and You." Don't miss it!  

The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use

The award winning show "The Good Wife" offered a lively banter discussing Copyright Infringement in the recent episode titled, "Goliath And David." Watch the show online.

I loved every minute of it and think the issues brought forward are relevant to many of the discussions circulating in the arts and crafts world regarding legal issues, copyright, and copycats. Six minutes into the story the first revelation arrives. And if you are confused about copyright, copies, derivative work, parody, and fair use....it is all explained in the story. Pay attention to how precise and specific the discussion needs to be in teasing out the legal issues.

They use music, more specifically a rap song, as the example....and... sure, this is just a fictional story, but the information was fascinating. The issues presented in the case become more relevant with the recent cases brought to court by Marvin Gaye estate suing for infringement against Robin Thicke song "Blurred Lines."  

Compulsory License, and Derivative Copyright were the first two issues brought forward in the story. Quoting the show, "The compulsory copyright allows you to cover the song, but the derivative rights protect you if you make changes in that song." This is specific to the music industry.

The next issue discussed is a legal agreement. Alicia Floric (the main character of the show) says, "Money has to change hands even if it is only five dollars." True.  A similar example in the Netflix series "Breaking Bad", a lawyer asks for a dollar from each prospective client (in the middle of nowhere, at night, in the windy desert) to enter into a contractual relationship with his new "clients" to establish lawyer/client confidentiality.

Continuing with The Good Wife copyright issues...
We then hear the voice of "excuses." Statements that are often used to justify copies. The character on the stand in court says, "I do know artists are sponges. We take in the same information from the zeitgeist, transmute it into something new. And sometimes there is a best way to do something. Uh, good artists will often duplicate each other because they hit on the best way at the same time."  I can't tell you how many times I've heard these kinds of comments. 

Testimony of the copycat continues...
"Similarity does not constitute theft." "Similarity is not a crime. That's how our culture develops and grows." 

 

Additional issues brought forward in the story include parody and fair use.* I love how the musician is lost in the legal arguments. "This is so cool.  It's like legal jazz."  The dialog is really funny. His scripted opinion echoes half the audience watching the show.

The story then moves onto the idea of transformation under Fair Use. "The judge wants the characters to prove that it was a "transformative artwork."

Two music experts are brought into the courtroom. Fascinating as their opinions diverge. Unfortunately the show confuses "satire" and "parody" using the words interchangeably, but ultimately the program does state, "Originality must be protected."

"A transformative artwork by its very definition must be transformative." 

I don't want to reveal the entire show.....you might have to watch the story a couple of times to absorb all the legalities. And the whole show has it's usual multiple threads of intrigue, sexual tension, and character development. All worth watching any night of the week!

The only thing that I will tell you is the copycat lost the case. Watch the show to find out how this is revealed.

Listen to this YouTube video to compare the two songs "Blurred Lines" from Robin Thicke and "Got to Give It Up" by Marvin Gaye.

Harriete

Harriete Estel Berman

 

*The Supreme Court has unequivocally held that a parody may qualify as fair use under § 107. According to the Court, a parody is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. Like other forms of comment or criticism, parody can provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.” Id. In other words, parodies can be considered “transformative” works, as opposed to merely “superseding” works. Since transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright,” the more transformative the parody, the less will be the importance of other § 107 factors that may weigh
against a finding of fair use. Id. at 579.

RELATED POSTS:

Fair Use - Is your work "transformative."

Blurring the Lines Between Homage and Infringement from the California Lawyers for the Arts

 

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