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.
- 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!