In the previous three posts lawyer Rachel Fischbein provided expert advice from her legal experience about what to do when a copycat copies your work. (Links to her posts are in the text and at the bottom of this post.) Her approach was methodical and measured in it's response. All of it was super great advice.
In hindsight, looking at those posts, there seems to be an implicit presumption that the copycat was a large company or brand name corporation or knock-off discount retailer. Sure that happens. As a lawyer, Rachel Fischbein most likely deals with such cases where significant money may be at stake, potentially leading to a resolution through a "licensing or royalty payment for the use of our designs."
But a number of copycat scenarios brought to my attention by readers are of a more common type involving someone from our own art or craft community, e.g. a student, participant in our workshop, fellow artist or maker, friend or foe. I hear about this all the time. Sooner or later, most of us become aware of someone else's work that is just too similar our own.
When you experience such a situation, a key question might be, "Are copies necessarily an intentional act of the copycat?" And how should you handle this situation? Do they understand the consequences?
This is not a new problem. I found an example of this exact situation in the Archives of American Art Research Collections consisting of an exchange of letters between two metal artists in the 1950's. The first letter is from Victor Reis, a San Francisco Bay Area metalsmith of local renown at the time (ca. 1956). In the letter Reis writes to Margaret De Patta about a ring she is selling which he declares is a copy of his own design. While Margaret De Patta is well known now for her jewelry, at the time she was a struggling art jewelry maker (just like the rest of us). An excerpt from the Victor Reis letter is provided below.
"Dear Margaret, This letter is not suppose[d] to be a bad one. But I['d] like to express my feelings and talk open and free to create a clean atmosphere even if there are some clouds around. A visit in the city, a look into Nancy's display, gave me a strange feeling. I saw the Margaret De Patta display with a ring about 100% like one of mine. " .... He continues, "It's not a complex of me, that I believe so often to find my work executed through others, like a necklace through Merry Renk." Victor Reis' letter continues with more examples and small drawings.
Margaret De Patta replies in a letter, "Dear Victor - Your letter came several days ago. Needless to say I have given it much, much thought. First I want to say that I am glad that you have written openly to me. A person can never honor statements that are made behind one's back, and I have heard of these from several sources."
De Patta's letter continues and suggests that the San Francisco Metal Arts Guild board should establish a method for mediating such matters. Obviously, 50+ years later we (the arts and crafts community) still have similar issues and have not yet agreed upon a method for mediating these copycat scenarios even among friends.
So who is the copycat?
I have not yet found any documented resolution regarding the issue discussed in the letters, but I was impressed that Victor Reis and Margaret De Patta did follow a vital precept endorsed by Rachel Fischbein, to initiate the "Initial Copycat Communication." Write to the copycat offender with a non-threatening business like manner seeking an amicable solution with documentation.
What would your documentation include? Rachel Fischbein in the post "What is a Copy? Copycat" describes a methodical approach to evaluating whether something is a copy. The key element to this evaluation is to document the similarities. "Figure out who's product was created first" and "Determine if the copier had access to your work."
Here is my list for copycat communication:
- Compare and evaluate the copycat version to your work.
- Document where they may have seen your original work.
- Write a private, non-threatening letter to the copycat.
- Follow Rachel Fischbein's recommendations for a structure of this letter.
- Discuss the situation with the copycat.
- Do all this direct communication before going public on social media.
During this evaluation, keep in mind that the technique* or materials can not be copyrighted -- paint is paint, clay is clay, metal is metal, enamel is enamel, etc. So the copy has to copy a style, design, aesthetic or conceptual component in the "copy."
Going back to the reference to the Margaret De Patta letter she says, "A person can never honor statements that are made behind one's back, and I have heard of these from several sources." Take the time to write a civil communication documenting the apparent copycat scenario as you see the situation. Just like Victor Reis reaching out to Margaret De Patta, if you have concerns, it is best to direct them privately in your "Initial Copycat Communication."
These are your first and second steps before jumping to public accusations on Facebook (or another public forum). This may fly in the face of our natural impulses to either retreat into a cocoon to avoid any confrontation or publicly "burn" the offender.
However, in the age of the Internet, more than a few online discussions dealing with a copycat scenario start with a Facebook post along the lines of "what shall I do?" or thinly veiled references to dastardly deeds .
The posts by Rachel Fischbein taught me that no matter what the copycat violation, a key message is to take professional, non-threatening and clearly thought out actions before burning any bridges or escalating to a crisis.
While I have no easy solutions to the slippery territory of the copycats that live in your community, I do think it is worthy of discussion and communication, hence this post.
Let me also acknowledge that many individuals have said that pursuing this level of documentation and communication with the copycat is a "waste of time." The "originators" is this camp typically justify ignoring their copycats with a rationale such as "I have moved on." or "I don't care so much about old work." or other similar reasoning.
I disagree -- because there are moral, legal and financial consequences of ignoring a copycat, and of being a copycat. This will be the subject of the next post.
In the meantime, I welcome your opinions about this topic.
This post was updated on December 11th, 2021.
*"Copyrighted technique"? In short, there's no such thing. The description of a technique may be copyrighted to the extent it includes creative elements, but the underlying technique, and the factual description of it, are not subject to copyright protection. SonnabendLaw Intellectual Property and Technology Law,Brooklyn, USA
Appraisal of Margaret De Patta jewelry on Antiques Roadshow
Margaret De Patta jewelry including ring, brooches, and earrings appraisal on Antiques Roadshow
Read the previous posts by Rachel Fischbein: