Initial Copycat Communication

This post is part two of a three article series by Rachel Fischbein, Esq. on what to do if you find someone copying your work. Today’s focus is on the initial communication with the copier.

Before taking steps to reach out to the copier, please review the first blog article "What Is A Copy? Copycat?" to determine the type of copying and to develop comprehensive documentation of the copycat's copy.  This should be an ongoing effort on your part until the situation is resolved.

Feeling harmed and disrespected by your copier makes it tempting to send an angry email, threatening a lawsuit and berating the copier for his or her actions.  Often this type of email is the least effective way to create a behavioral change or to come to an agreement with the copier.

Below are tips for the first communication, intended to create an opportunity for positive results to end the unwanted copying.

Please note that this is general information and not legal advice. Please contact an attorney for advisement on your unique situation. 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 ASKHarriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete. 

Decide Who Will Send the Initial Communication
Despite being an attorney, I do believe that sometimes these matters can be more easily resolved by two parties communicating directly to each other. I particularly encourage the initial reach out to be personally between the designers when both parties are small business owners.  When the parties are two artists or small companies, the ability for the parties to relate to each other can be helpful in coming to an agreement.

When an artist or small company has a design copied by a larger company, having an attorney send the communication can be a good way to show the importance of the issue and the confidence of the designer knowing his or her rights.  Even when you’re doing the initial communication yourself, you don’t need to be alone in the drafting of your first communication with the copycat. An attorney can review the email draft, giving suggestions on how to explain your rights, and offer persuasive language tips, coaching you through the negotiation.

Decide How the Message is Sent
In addition to who will the send the initial communication, consider the communication channel. A physically mailed letter adds a tone of severity and formality that can be beneficial. However, the mailed letter isn’t likely to receive a quick response. An email encourages a fast exchange of information and a more personal connection.  In some situations, you may want to send both, to ensure that the copier received the message, knows of the severity, and has the encouragement to quickly respond. If you do send both an email and a physical letter, let the copier know a letter is on the way in the mail, so they aren’t surprised by the duplicate message.

Explain Your Rights and What the Copier Did Wrong
When asking someone to agree with us and to see our point of view, it is important to walk the other party through our thought process with clear details. We need to explain the situation to the other party, offering them first, an overview of what rights are protected by trademark, patent, or copyright laws, and then why their actions were a violation of those laws. Sometimes designers are confused when establishing the line between inspiration and copying. Ideally, we want the other party to come to the same conclusion as us, that their actions were taken against your rights to the designs, and it could harm both of your businesses. In addition, explain why your rights are protected. Designers are visual. Add photos or diagrams if it feels appropriate and helpful.

Share Alternative Resolutions to a Lawsuit
When explaining what the next steps are for fixing the problem caused by the copying, it is reasonable at this point to suggest that a lawsuit could occur to establish your rights, but also that there may be business reasons why it is beneficial for the other designer to end the copying behavior. Every situation is different, so the best way to work through this is to place yourself in the shoes of the copier.

What would convince you to change your behavior?
Are there alternatives that you can suggest that would end their copying and strengthen their business, as well as yours?

Give the copier directions for how they can resolve the issue.
This is your chance to offer options for a resolution to meet your ideal ending. Be clear on what you want.

• Do you want the copier to merely stop selling the product in the future?
• Could you ask for a portion of the previous sales?
• Are you willing to license out your design to them for a portion of the future sales or one-time licensing fee?
• Think about how you can benefit from the copier’s actions and efforts.
• Perhaps along with compensation you might want recognition as the designer for the benefit of having your name exposed to more people.
  
  
  
  

Encourage Communication
Remember, the goal with your initial letter is to create change and movement towards a solution, it is not to vent out your anger and frustration.

• Make yourself approachable and keep the communication channels open between you and the copier.
• Let them know that you’re available by phone or email.
• Suggest some times that would be ideal for a phone conversation.
• Your copier is more likely to honor your rights when you’ve established a personal connection and listened to their side of the story.
• Give them a chance to step up and act with integrity.
  
  
  

Silence or Disrespectful Copier
Most of the time, copiers are willing to change behavior when a personal connection is made and you’ve logically explained the issue to them. However, sometimes we have difficult personalities to face and we have to consider alternative ways to encourage behavior change through reputation damage, threat of lawsuits and/or public shaming. These tools are meant for “worst case” scenarios, and not as starter tactics.

The next post by lawyer Rachel Fischbein will address this "worst case" scenario where  public disclosure, shaming, reputation damage, and threat of lawsuits may be necessary. Subscribe to ASK Harriete so that you won't miss the third blog post in this three article series on ASK Harriete!

Follow this series:

What Is A Copy? Copycat?

Fashion Law Primer: Protecting Your Designs

California Lawyers for the Arts Offers Legal Resources & Information

 

Share this post with appropriate attribution and link to the original post to bring awareness to your community. 

Harriete

 

 

 This post was updated on December 11th, 2021.

What Is A Copy? Copycat?

This post addresses several variations of an all too common story, a designer is gaining traction on her designs, getting known for a particular style, feeling some success from her efforts, when suddenly a friend emails; "Take a look at these designs," the friend says. "They're just like yours." As the designer, you're understandably feeling harmed, disrespected and worried. But before you fire off an angry email to the copycat, read through this post to plan out your strategy. This post is meant to be general information, not legal advice, so if you are seeking counsel on your unique situation, please contact an attorney. 

Note: 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 ASKHarriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete. 

What is a copy?

Shocked and surprised when we see a copy of our work or ideas the first step is to examine the copycat version carefully looking to see what is being repeated. Is it the unique idea captured by product, or is it the design of the product? If it is the design of the product, did the copycat repeat the functional or useful aspects of the product, or is it the stylistic and aesthetic parts of the design that were copied? Did the copycat try to imitate something about your product that displays your brand identity? 

Functional or Useful Aspects of the Products:
If the copycat looked at your product and saw how the product worked, and decided to recreate the functionality portions of the product, you could look only to patent law for protection. Once your product is released to the public, anyone may copy the functional aspects of your product, unless you have filed for a patent and secured the rights to exclude others from that design. 

 

Aesthetic or Non-Functional Aspects of Your Design:
The parts of your product design that were meant to be pleasing to the eye, and not serve a functional purpose are easiest components to protect from copycats. We typically use copyright laws as protection for designers, but design patents can be used as well. If the copycat recreated your unique print pattern, etching design, drawing, photograph, painting or 3D sculpture design (including aspects of jewelry that look like small sculptures) you may be able to stop the copycat. 

 

 

Branding:
Is the copycat trying to make the products look like they came from your business? Could a consumer be confused in determining if you and the copycat are the same business or separate businesses? If the copycat is trying to make the product look like it came from your business or is using similar branding, we look to trademark law for protection. Always keep in mind that trademark law has two functions, to protect the business owner, and also to protect the consumer from being confused about the origin of a product. 

 

Document & Create Timeline:
After you identify what makes the product similar to yours, its time to document what is happening, before you reveal to the copycat that you're aware of the situation.

 

 

If the product is for sale online:

• Take screen shots of the listing.
• Look to see if there's a history of reviews?
• How long ago did the copycat start selling the product?
• Look at the copycat's social media.
• Has the copycat mentioned this product?
• How long ago was its first mention?  
• If it’s a small business doing the copying, dig into the identity of the copier.
• Do you know them?
• Could you have seen each other at a trade show or event? 
• Did they enter your booth, discuss your work, or attend a workshop you gave?

Get all the facts organized.

• Figure out who's product was created first.
• Determine if the copier had access to your work or would have been prompted to discover your website and saw your public product listings.
• If they have repeated your functional design aspects, look to see if they have any mention of a patent on the product, such as a patent serial number. You can also use Google Patent Search for a preliminary investigation to see if someone else actually holds a patent on the design you thought was uniquely yours! 

Decide What You Want to Best Benefit Your Business

As a designer, you're probably creating products out of passion, but also desire financial success for your efforts. Sometime we can take moments of negativity, such as discovering a copycat, and turn them into a business opportunity.

Instead of approaching the copycat with hostility and anger (and a threat of a lawsuit) consider alternatives.

• Could the copycat bring something desirable to your business, such as a new customer base or a chance to license your designs to the copycat?
• Think strategically about how you can get the copycat, who clearly believes in your products or business to bring you into their profits.
• Lawsuits are slow moving and expensive. Perhaps working together with your copycat will provide the biggest and quickest reward. 

Working through creative ways to benefit from the copycat’s actions brings us to our next post, sending that first letter to the copycat....

Stay tuned for the next two posts by Rachel Fischbein, Esg.

The next post will be about the Initial Copycat Communication.

The final post in the series will be about the issues of public shaming of a copycat to gain the attention of the copier.  and hopefully, generate a resolution.  

Follow this series:

Fashion Law Primer: Protecting Your Designs

California Lawyers for the Arts Offers Legal Resources & Information

 

Share this post with appropriate attribution and link to the original post to bring awareness to your community. Harriete 

 

 

 

Post Guest Author: 
Rachel Fischbein is the founder of Law On The Runway. She primarily assists fashion and beauty entrepreneurs as they build the foundations of their companies and navigate contractual relationships.  She has been published by Women 2.0 and Young, Fabulous, & Self- Employed Magazine. Ms. Fischbein is also on the board of directors of PeoplewearSF, a nonprofit supporting the Bay Area fashion industry. Rachel is a frequent presenter on topics such as intellectual property rights within apparel and jewelry designs, privacy law issues of wearable technology,
and the regulations of social media and blogging.

 

This post was updated on December 11th, 2021.

RELATED POSTS ABOUT COPY, COPYCATS & COPYRIGHT:

Copycats Cost Artist $250,000 Loss 

Alibaba Who? AlibabaMe?

Cultivating A Culture of Copycats  

The Guild of Unauthorized Sharing

Fair Use Guidelines

"I love your work and want to make one for myself"

Purchase of an Object versus Purchase of Copyright or Right to Copy

Fashion Law Primer: Protecting Your Designs

I recently attended a workshop with Rachel Fischbein, Esq. , titled "Fashion Law Primer: Protecting Your Designs." 

The evening program covered the legal aspects of protecting creative designs in jewelry, fashion accessories, or branding with copyright, trademarks and patents.

The evening went very quickly. Rachel had to push at a reasonably fast pace for the hour and a half just to cover all the legal options.  We had time for a few questions, but I would have loved more discussion, even hours more discussion.  I was anticipating so many possible situations to apply her suggestions in the craft community.

Design patents, utility patents, trademarks, trade dress,  and copyright are the legal options to protect design work.  Publication and registration timing are significant considerations in protection of your art, designs, brand, or even protecting workshop content.  

Are you considering a Licensing Agreement? Work for Hire? 

Surely,  there is no doubt that hiring a lawyer like Rachel Fischbein to protect your intellectual property would be worthwhile. What I loved about listening to Rachel was that she wanted to work with the jewelry and fashion industry.  She is on our side. 

The irony was at the time she made it sound so easy and straightforward, yet now I look at my extensive notes and I am discouraged and rather overwhelmed. I took the workshop to become more informed, but it isn't a substitute for a legal career. It seems inappropriate to become a "workshop imposter" to share her workshop in a post. I think Rachel's voice of experience would be fabulous content for professional development at the next conference sponsored by your local/national organization

When I look at the plethora of the copycat incidents, there is a big problem with all the legal protections Rachel mentioned. Most of us aren't taking these legal steps, nor do we have the resources to take a copycat to court. So how do we  protect our ideas, designs, brand identity or even a workshop title or content with our own initiative?

How are we realistically going to stop the copycats that may not know that it is unethical and illegal to copy designs and ideas.  Or how about the ugly reality, that some of the copycats just blatantly do not care. 

So here is some breaking news!  Rachel has written a 3 part series for ASK Harriete starting next week.

Post #1  What Is A Copy? Copycat?

Rachel Fischbein says, this blog post addresses the variations of an all too common story, a designer is gaining traction on her designs, getting known for a particular style, feeling some success from her efforts, when suddenly a friend emails. "Take a look at these designs," the friend says. "They're just like yours." As the designer, you're understandably feeling harmed, disrespected and worried. Before you fire off an angry email to the copycat, read through this blog to plan your strategy.

Post #2  Initial Copycat Communication

What should your initial letter to the copycat say? Rachel Firshbein will guide us through the "Cease and Desist" letter strategies. 

Post #3  Going Public: Speaking Out! Public Disclosure of a Copycat Complaint

 

Below are blog posts, worksheets, and workshops offered by Rachel Fischbein.

Trending Legal Issues in 3D Printing in the Creative Arts (especially the fashion industry) 

This workshop was given in May 2015 but I hope that California Lawyers for the Arts hosts it again."As 3-D printers are becoming more accessible and affordable to the public, the increasing use and availability of 3-D printers will drastically affect intellectual property protection -- especially in the fashion industry."

Worksheet for agreements with Independent Contractor Designers (discontinued)

"A worksheet of topics and questions to discuss when working with designers who you are independently contracting."

Worksheet for Terms & Conditions of Fashion or Beauty Website (discontinued)

"This worksheet is to help business owners of a fashion or beauty company as they begin selling products online. By working through the worksheet, you'll make business decisions needed for your terms & conditions of your website."

Consultation Hour- Worksheet Assistance (discontinued)

"Did you recently download one of the Law On The Runway worksheets? Do you need assistance with filling it out or implementing the information into your business? This is a special discounted rate for consultation on the worksheets provided in the Law On The Runway store. After completing your purchase, please reach out to [email protected], to set up a time for your consultation."

 

Harriete

This post was updated on December 11th, 2021.

RELATED POSTS: 

California Lawyers for the Arts Offers Legal Resources & Information

California Lawyers for the Arts Offers Legal Resources & Information

California Lawyers for the Arts is an advocacy organization for artists, makers and musicians. For 40 years they have been providing artists and musicians with referrals to lawyers, dispute resolution services, and education programs along with a publication library specifically for individuals in the creative arts and for art organizations.

I have attended many of their educational programs and used their arbitration service. In 2015, I attended a program titled, Fashion Law Primer: Protecting Your Designs taught by Rachel Fischbein, Esq. (More information about that class in the next post.)  

Rachel Fischbein will also be writing a post for ASK Harriete on how to approach a copycat infringer, composing a cease and desist letter, and what documents you should keep before and after you notice the copying.  A follow up post will illuminate whether or not to make a public statement about the copying. Are there any legal consequences to discussing a copycat situation publicly? I really want to know. So stay tuned for this series on ASK Harriete.

BACK to information from
California Lawyers for the Arts:

While CLA was the first legal organization to support the arts, I know many states now  have their own organizations. Do some research for your state. 

For any one of us witnessing examples of copied work, stolen ideas or workshop content, or borrowed or copied images, what is the legal recourse that offers an alternative to hiring lawyers?

"Copyright issues are exclusively a matter of federal jurisdiction, but taking a case to federal court, with its arcane local rules and discovery procedures, can be expensive and time consuming. A survey by the American Bar Association showed that the average cost of a copyright infringement lawsuit in Los Angeles through the end of discovery was $292,000; the average cost through the end of trial and appeal was $517,000.  Unless actual damages are truly substantial, the copyright holder will be without an effective remedy in federal court. "

It would be ideal if there was an option such as Small Claims Court. This article,  Small Copyright Claimants Need Access to Justice on the California Lawyers for the Arts website from 2013 discusses this option. Perhaps at some time in the future with advocacy from the arts community there will be a small claims court option available for everyone. 

The blog on CLA includes informative articles which are worth reading about copyright infringement.  The "ongoing debate about sampling rights and legal ownership of musical property" is discussed in their post Blurring the Lines Between Homage and Infringement.  If you aren't familiar with the copyright debate regarding this song, or any copyrighted content, a post on ASK Harriete,  The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use  offers more background on this topic.

 While the legal case above involved music rather than visual arts, the same principles apply. "Ostensibly, it would seem that copyright infringement is straightforward: either you appropriated someone else’s work and called it your own or you didn’t. In order to be found liable for infringement, two things must be proved. First, there must be direct or indirect evidence of access to the original composition. Then, if access has been established, “substantial similarity” between the original and the alleged infringing work needs to be shown." 

Stay tuned for a future post by Rachel Fischbein for your first steps in dealing with copycats.

NOTE "TO WHOM IT MAY CONCERN:" Copying someone else's work or appropriating someone else's ideas or images is not only illegal, but is ethically, morally and artistically a complete dead end to your future career.

Harriete

This post was updated on December 11th, 2021.