DIY This Necklace And Copy Another Person's Idea

Every so often I am appalled to see online a suggestion to copy another person's idea or work.

It happened again just now...
The caption on this Pinterest photo offers suggestions for recreating jewelry by Sydney Lynch design as a DIY project. 

Suggesting that Lynch's work is a good piece of jewelry to copy is an outrageous and unacceptable recommendation. Unfortunately, this DIY proposition is not an isolated example.  If you want to create a tutorial for a DIY project, you must use your own design and ideas.  Telling people to copy another artist and how to do it is completely inappropriate.

If you like a piece of jewelry or admire another artist's work in any media, then suggest that other people buy it from the artist. Don't recommend ways to copy the other artist's work. 

What do you do when you see a D.I.Y. post on how to recreate/copy another artist's work?  When I first saw a situation like this, I didn't know what to do.  This time I wrote a post with vocal condemnation.  Is that enough?

Please post your thoughts or alternative suggestions below. 

Harriete

This post was updated on December 13th, 2021.

Why I Can't Justify Ignoring the Copycat

Several previous posts dealt with what to do if someone or some business is copying your work. Among the comments and responses to these posts and related discussions, more than a few artists and makers suggest that they would prefer to ignore the copycat (whether friend or foe) because the situation is too uncomfortable or too unlikely to reach an acceptable outcome.  The "originator" typically justifies ignoring their copycat with a rationale such as "I have moved on" or "I don't care so much about old work" or other similar justification.

I disagree with ignoring the copycat -- although I can also acknowledge the discomfort and uncertainty of outcomes.  But, I can not simply ignore the copycat regardless of the situation for two very fundamental reasons. 

1. Copies affect your income and reputation possibly devaluing both your past and future artwork.

2. Copies may be used in contexts that damage your reputation or trademark.  

Seeing copies of your artwork used in an advertising campaign, printed on t-shirts or sold at an undesirable venue may not be how you want your reputation exploited in public.  Use your imagination.  Would you want your work to represent issues, people, or topics that offend you? In a comment on a previous post by Cindy, "Art and photos may be used to advertise or promote businesses and causes that are in conflict with the artist's beliefs. It makes it appear they are sell outs or hypocrites because not everyone will know it was infringement and not a paid use." 

What if the copy impacts the value of your brand/trademark?  For example "Tiffany and Company sued Costco for the sale of counterfeit TIFFANY diamond engagement rings. "

Here's another example of how a copycat can affect your revenue from Natascha Bybee, Past President of the Seattle Metals Guild and reader of ASK Harriete. "I read an article about an artist being copied. I was very upset on their behalf, but sadly could not remember the name of the company. [Later] I saw "their" product at a craft show in December, but I didn't know if I was dealing with the originator or the copier, so I didn't buy anything and it made me have a more reserved attitude towards their booth. Since I couldn't distinguish between the two artists, I just avoided them altogether and would never recommend them." 

Video clips from Antiques Roadshow show several examples of the negative impact of copycats (shown below) where fakes, copies of the original, or outright forgeries impact the value of all the work attributed to an artist or maker.

Listen to the very end of each video segment to get the triple whammy full impact of how fakes/copycats affect value. Customer confusion is the relevant issue. It doesn't matter if the copy is not of the same quality, or the same patina, or finish, if it causes customer confusion the copy still affects the perceived value for all the work in that genre as buyers doubt the authenticity.

An original receipt for this Charles Laloma Bracelet is considered "as important as the bracelet" because "there are a lot of fakes on the market." Any potential buyer will question every time, "Is this real? Or is it not real?" 

 

  Fake George Ohr Vase, ca. 2013 is made to deceive "by a person in the northeast who keeps producing them and selling them on the Internet. They appear, they are seen, and they are purchased by people who just don't know."

  Clementine Hunter Paintings, ca. 1980

 

  Fake Remington & Russell Bronzes

 

 

Let me know in the comments or privately  if you know of other examples. 

More personally, whether you sell your work online, from your studio, or in a gallery, a purchaser expects their purchase to be unique, worth the price, and a consummation of a special relationship with you.  If your customer finds a cheap knockoff elsewhere, they are going to feel ripped off.  The question of authenticity will raise doubts about your work and your reputation.  You may never know how many customers may withhold recommending you and your work to their friends.

What to do if you find a copycat copying your work.

• Evaluate the situation carefully. Recommendations are in the post What is a Copy. Copycat?
• If images are posted online, a simple "DMCA Take Down" might force the website to remove the images. This is easy to do and takes about 15 minutes and it is free. 
• Contact the copier with the Initial Copycat Communication.
• If the copycat work is shown at a gallery, write to the gallery.
• Private and confidential will be your initial approach before taking stronger tactics.    

The suggestions in this post aren't guaranteed to work.  The point is that some diligence and effort may protect your work and your reputation by stopping copycats as soon as you become aware of them. Speaking out and addressing this issue is your first step.

Perhaps not every situation demands a full out response, but choosing to automatically ignore a situation can have some very negative consequences.  I believe that the recommended initial actions in these posts do not require extensive effort and have a reasonable chance to stop the copycat at an early stage before much damage is done.   

What do you think?

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

Attention, Shortcuts, Carelessness, Copycats

In my lecture, "The Good, The Bad, and The Ugly in the Age of the Internet" I referred to a quote from the author and exposed plagiarist, Jonah Lehrer.

“My arrogance. My desire for attention. My willingness to take shortcuts, provided I don’t think anyone else will notice. My carelessness, matched with an ability to excuse my carelessness away.” End quote.   


This week, several copycat examples came to light in different media that all represent a "willingness to take shortcuts, desire for attention, and a carelessness expecting that no one would notice."

 

 

"Luc Tuymans Found Guilty of Plagiarism for Painting Photo of Politician" copied a photograph for his painting composition. 

"Tom Petty awarded songwriting royalties for Sam Smith’s “Stay With Me” after the songwriter admitted similarity with the earlier song. (This is not the first time a case like this has gone to the courts.) 

Jeweler's Jury Images Used by Another Jeweler  In this shocking example a jeweler steals an image and represents this as her own work. 

I recommend that you look at all three links. I decided to write this post just in case readers have missed the discussions on Facebook.

So many examples in one week are shocking, but that wasn't all. In another discussion, an artist asks if she can copy poems from the Internet to accompany her paintings. Well thank
goodness she asked. No, no, no you can't copy poems from the Internet to accompany your paintings without permission from the author. 

In another example, I saw online, a jeweler was looking for examples of poems posted online to write on her jewelry. Shocking! No can't put other people's poems on your jewelry. Write your own poems! 

More than anything, I think we are witness to the growing pains in the "Age of the Internet." We have access to an abundance of information and images. It is easy to take, borrow or copy, when driven by the "desire for attention" and with access readily at our fingertips.  It is easy to imagine the lure of appearing to be better, more perfect, beyond the ordinary, without hours of toil... if we copy.

Responsibility rests with each and every one of us to understand that ideas need to come from the inside, not the outside, and certainly not the Internet. And whenever we see copycat behavior, each of us should raise awareness and help our community "take notice." 

Harriete Estel Berman

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

There are rampant versions of copycats within the arts and crafts community. Some are cloaked in naiveté, admiration and enthusiasm.The problems are multi-faceted.

One of the problems is that the copycats don't realize they are stealing from the professionals they most admire.

The issues are serious. By our silence, we in the arts and crafts community are cultivating a climate of copycats. Bringing this issue into the open is not going to be popular, but the undercurrents are eroding our economic, ethical and legal boundaries.

Today's post is about the ethical boundaries and economic impact. There are two general categories.

1) Copycats cloaked in admiration.
These copycats make work to look like the artist/maker they most admire. Instead of buying the work of their art or craft hero, they create sub-quality unauthorized knock-offs. While copies for your personal use with a "Non-commercial Intent" are legal under Fair Use, this practice has a negative impact on the craft community impacting revenue for practicing artists and makers.

Parallel examples are multi-faceted such as commissioning "copy cat work" from another maker. There are too many nuanced examples to illustrate them all.

2) Copycat workshops/tutorials. 

The copycat workshop has several corrosive manifestations. One aspect is the enthusiast that wants tutorials and workshops instead of buying the master's work. The innovator, lacking a market for selling their work may ultimately relent to teaching a workshop purely for economic survival. Or the master might feel obligated or pressured to teach these copycat workshops by the very admirers of their work. 

This copycat culture has become a breeding ground without clear boundaries. Instead of an expanding marketplace for quality and innovative art and craft, we have an expanding culture of copycats. The economy of workshops, schools, and magazines have significant growth largely as parasites on the innovations of the masters.

For the sake of brevity I have simplified the issues....but consider this overall to be a serious problem. A poor economy and eroding prices must increasingly compete with copycats who want to "make one for myself" instead of supporting the master.

Instead of enjoying an object or artwork for its visual impact, content issues, technical skill or innovation, these copycats see the potential for making their own derivative work. This is moving from BAD to UGLY.

Why do we want to clone and copy the original?

Why do we want to copy the formula for someone else's success instead of creating our own? 

Below are observations from people that have written to me about these issues. The identity of the writer is not included, but their voices are not singular.  No artist, maker or workshop teacher is listed below to protect their identity. I have heard these opinions echoed frequently over the past four years. The chorus is growing louder.  

       *******
"I often get emails out of the blue about my techniques, I am not sure how to respond. There are a few techniques I have developed that I feel are unique in my field & that set my work apart in the marketplace. I am all for people learning and developing skills, but it just seems so easy to ask for instructions about how to make my work especially when these techniques are so intimately tied to my livelihood. I feel that I have a right to artistic privacy, but I feel like such a "bad guy" when asked for it."

     *******

"When will the Free Tutorial be available? As soon as I finish new work and post the images online, I have requests for the free tutorial. Things happen quickly on the internet, too quickly. Novel work does not necessarily get much time to mature or become established, making it seem even riskier to share special techniques so casually." 

        *******

"I love your work so I made one for myself" is a shocking statement when I am standing at my booth at a show. Not only have I invested years to develop my skills and technique, but I have invested $1,000's in photography, booth display, and show fees. All of those compliments mean nothing more than they want to copy my work, ... as if this were an acceptable thing to do. This rocks my very foundation."

       *******

"Artist Wanna Bee has just pinned my work to "Things I Wanna Try in the Future" Pinterest board. NO, I didn't make it up.  Guess what. Just try a search if you feel the necessity of nauseating evidence. The shocking spectacle in front of your eyes is a whole group of your work made by other artists."

       *******

"And there is a weird Robin-Hood-in-reverse quality  where less-professional online communities develop a mob-like mentality to "liberate" a unique technique from the established artist/maker who developed the original."

      *******

As one established artist says: "What I fear is that people when they directly ask, are implicitly asking for the permission to copy outright."

      *******

"I've found probably close to 50 paint party studios copying mine and other artists work, and it's growing exponentially because people really enjoy this kind of past time, but have no idea that the art they are "painting" is in violation of copyright laws."

     *******
FROM HARRIETE:

If "I love your work and want to make one for myself" has happened to you, it would be helpful if you left a comment or email me. I could anonymously add your quote to this post to demonstrate that these problems are resonating in the arts community.

SUMMARY

"I love your work and want to make one for myself" is not a compliment, it is a copy. 

Instead, BUY THE WORK YOU ADMIRE. The artist, maker, metalsmith, or artist has worked long and hard to not only come up with the idea but to perfect the techniques and make the item. Why not purchase the item and support a local artist who is doing her best to support her family, etc.?

Harriete Estel Berman

Kate Brennan Hall has generously allowed me to use an image of her poster. Read her blog post titled Golden Rules of Crafting and see what she has to say about the topic. She sells her poster on Etsy. 

Cultivating A Culture of Copycats

Recently another form of copycats was brought to my attention...just when I thought there could be no more versions of the copycat, here it is - the painting party.


Wine and Paint Party Studio out of  Bloomington, Indiana copying Megan Duncanson painting without  permission, recognition or compensation.

At the time of this post,  Megan Duncanson discussed"The Paint Party Studios and the Illegal Copying of Artwork."  She documented her "own art being copied in a Wine and Paint Party Studio out of  Bloomington, Indiana without permission or recognition/compensation in any way."  It seems that copying paintings is a thriving business model as she has found "probably close to 50 of this type of companies."**

Copying an artist's painting (or any other art or craft) as a business model without permission or a license is illegal.

This copycat example raises a couple of issues: 
1)The illegal copying of an artist's artwork without their permission as in the Megan Duncanson and CafePress.com example.

2) The cultivation of a culture of copycats.

With all due respect to the entrepreneurial efforts of a small business, a "paint party" copying another artist without their permission is unethical and illegal. So is teaching a step-by-step workshop or tutorial of another artist's work or style or work or signature technique.   I think there is a BIG PROBLEM teaching people how to copy a painting or any other art/ craft project. 

We need to STOP COPYING, even licensed copying. If you want to paint, learn painting skills. If you want to work in any media, practice a skill.

We need to STOP TEACHING COPYING OF OUR OWN WORK OR STYLE.  While I understand that this is all done in the spirit of goodwill and encouragement, it does not encourage a student to forge their own path. Copycat teaching is a tacit message that it is O.K. to copy.   

"While most authors and  teachers intend these tutorials and workshops to be inspiring, all too often participants  blissfully continue to follow the instructions without further innovation." Consider that if you don't practice your creative muscle it will never be strong. Copying a painting, or copying a craft project does not exercise your creativity.

In the age of the internet, we need to encourage people to move beyond the tutorials and invent their OWN techniques and develop their OWN artistic voice.

In her book “Mindset: The New Psychology of Success” Carol Dweck describes the "growth mindset" and the "fixed mindset" and how it affects creativity.

Dweck describes the problem with tutorials saying,  “The tutorial gives you a fixed idea of a goal…..a fixed idea of perfection….and that accomplishment becomes an objective.” 

 

I am currently reading the book "Creative Confidence - Unleashing the Creative Potential Within Us All" by David Kelley of IDEO and his brother Tom Kelley. The premise of the entire book is that everyone can be creative.

In the book, they say "only 25 percent" of people from an Adobe Systems poll of five thousand on three continents" "feel like they're living up to their creative potential in their own lives and careers."  

At the bottom of this post, I embedded a short presentation from David Kelley's TED Talk David Kelley: How to build your creative confidence

With copycat-style workshops, the arts and crafts community has cultivated and nurtured a culture of copycats. By teaching copying and step-by-step tutorials, we fail to communicate that copying is not O.K. and that participants are missing the one thing that art and craft can teach - creativity.

Harriete Estel Berman on Instagram

*The Megan Duncanson images of her painting and the painting party were included in this post with her permission. She said, "Thank you so much for helping bring attention to this problem, it's running rampant across the country and not enough artists and patrons to these places understand the damage it does to artists."

**The CEO of Uptown Art (a paint party business) wrote to me saying: "At Uptown Art, we license with professional artists or purchase the rights to paintings from our rising artists. We not only agree with you on copying artist\'s works, we support artists by paying them for their work! We have so many paint studios which copy our work while we have paid significant money for the artwork. The integrity of using licensed/paid for artwork is what sets our studios apart from the competition. Providing quality artwork while supporting the artists!"

Books in this post are affiliate links. Clicking on these links and buying a book may provide this blog with a few pennies to cover expenses.

This post was review and updated on January 5, 2022. 

Copycats Cost Artist $250,000 Loss

Some may think that copycats are isolated cases with minimal impact. Unfortunately, many artists and makers would prefer to ignore the mounting evidence that copycat thieves are taking their toll on our community at many levels.

In this particular example, after years of effort, artist Brad 'Tiki-shark' Parker * was thrilled to finally gain some recognition with a commission worth $250,000 for towels featuring one of Parker’s paintings, “Forbidden Island.”   Then the buyer discovered that images of this exact painting were "already being reproduced on over 218 items by Internet retailer CafePress.com." As a result the commission was withdrawn and Parker lost the order. 

This is a real example of copycat thieves in the AGE of the Internet. It is just too easy for copycats to take online images (which are intellectual property of the artist) and upload those images to sites such as Cafepress.com.  Watch the video.  

Brad Tiki-shark Parker says on his Facebook page, "BIG Things are happening this week... I'm headed to Oahu to see what's up with this on-going law suit against Cafe Press over the theft of my art work - in Federal Court."

Here is an update "Big Island artist goes head-to-head against CafePress." 

How would this affect you or me?

If your work has a strong graphic quality, then images of YOUR WORK could be already printed on coffee mugs, t-shirts and telephone covers unknown to you. 

CafePress.com and RedBubble are just two of many online sites that allow anyone with a "profile" to upload images with the express purpose of printing the image on consumer merchandise. Cafepress.com allows the account to "pick the money making option that's best for you, never any upfront costs" to sell merchandise. RedBubble, with a tag line of "A GLOBAL MARKETPLACE FOR INDEPENDENT ARTISTS," seems to have a range of strong graphic images. 

Cafepress.com and RedBubble allow anyone to upload images, print the image on merchandise, and sell the merchandise for a share of the revenue.  Without your knowledge, copycats can profit from your artwork! 

I have heard of many similar examples to Brad Tiki-shark Parker where artists discover images of their art on unauthorized merchandise.

RedBubble and Cafepress.com are two of many internet sites with similar revenue models . Their entire revenue streams are based on anyone, and everyone uploading images for printing and selling consumer merchandise.

I tested both sites.
Cafepress.com requires the content provider to check a box which says: "I agree to use the CafePress.com service in accordance with the Terms of Service and Content Usage Policy"  but you are never required to look at either document before uploading images."

The Terms of Service and Content Usage Policy are hyperlinks to pages and pages of text.  

The user is not required to read the policies. 
The user is not required to review the information before uploading images.
Anyone could order items with the uploaded image printed on the items.

Just pay at the checkout and "earn" a share of the revenue.

Anyone could upload any image whether or not they own the image!  

Cafepress.com does have a policy regarding Intellectual Property on their site. It is very hard to find. The policy that prohibits the sell of merchandise that infringes on intellectual property rights should be a hurdle in clear, plain English that must be checked specifically before images can be uploaded.  It is not.

RedBubble.com did not have anything better. RedBubble is full of images that are obviously stolen.   

Neither site gave me any warning about the illegality of uploading unauthorized images that were not my property.

Cafepress.com especially is very convenient for copycats to use because small images work quite well on the merchandise offered.   

RedBubble requires larger files to make good prints on their merchandise. At least the higher resolution makes it a bit less likely to copy an image large enough for printing on RedBubble....but not impossible.  

At all these sites, the barrier is practically non-existent for unethical copycats to copy images of art or craft from the internet and print the images on consumer items.

People are making money by selling items with images that are not their property. This makes me mad!

What do you think?

Harriete Estel Berman

CafePress.com is located in the San Francisco Bay area. Write to them. Ask them why they abdicate all responsibility for content on their site. They don't even ask people when they upload images:
 
CafePress should be held responsible when vendors sell items printed with images they copied from artists without permission.
Cafepress.com
1850 Gateway Drive, Suite 300
San Mateo, CA 94404
Phone: (650) 655-3000
Toll Free: (877) 809-1659
Fax: (650) 655-3008
Email: [email protected]

 

UPDATE:  

Artist Tiki Shark’s lawsuit vs CafePress goes to federal court   - a YouTube video from local Hawaiian television.

Kona artist sues CafePress for alleged copyright infringement 

CafePress, Self-Publishing and the DMCA

Have you seen the post  Alibaba and the Copycat Thieves?

Hawaii-based Tiki Shark Art settles copyright infringement case

This is resonating in the craft community.

Thank you to Ruby Reusable for bringing the example of Brad 'Tiki-shark' Parker case to my attention.  

*Brad Tiki-Shark Parker artwork can be found at his gallery Abbas Hassan Tiki Shark Art, Kona Hawaii www.tikishark.com

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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! 

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

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:

Harriete,

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.

Jamie Spinello
Austin, Texas

Looking For Copycats of Your Work

As mentioned in previous posts.....the copycat problem is every where and it can happen to anyone.  So how can any of us find out if someone is copying our work?  Well, in our techno media enriched world . . .  there is an app for that.

In story after story there has been tool that has helped discover copycats - Google's Reverse Image Search. 

There are four ways to use Reverse Image Search. I practiced with all four for several hours in preparation for this post and tomorrow's revelation....and found a multitude of discoveries. 

The four ways to use Reverse Image Search are:

• Drag the image into the search box:
• Upload an image;
• Paste image URL into the box;
• Right Click the image to use a Firefox or Chrome App

THE BIG SURPRISE IS: CHANGING THE METHOD for the Reverse Image Search CHANGES THE RESULTS!  In fact, the results may vary widely! 

For my own test, I decided to use this image of my teacups.

My reason for selecting this group is that they were used on the cover of the book The Fine Art of the Tin Can, but my name would not be associated with any images of the book. I thought this would be a great test.

Furthermore, I have two images of the same group (one with a graduated background and one on a white background). Would the background impact the Reverse Image Results?

 

Start your Reverse Image Search by CLICKING on the camera icon in the Google Image Search Box.

A SEARCH BY IMAGE box opens up.

DRAGGING AN IMAGE or UPLOADING AN IMAGE:
Dragging an image into the box or uploading an image produced the same results if you used the same exact image. When I changed between a PNG and a JPG, I got different results.

Uploading a PNG image produced the following Reverse Image Results.  

Uploading a JPG image produced another set of Reverse Image Search Results!

UPLOADING AN IMAGE URL:
Uploading a URL for an image from my website shows a different set of images. The results included the book, one of my bracelets, another group of my teacups, a few other unrelated images of my work, and 100 more images that have nothing to do with me or my work. It seemed to show images with similar colors and unrelated content.

USING THE FIREFOX APP

The final test uses an APP for Firefox. This APP is available for both Chrome and Firefox. This option is a lot faster to use, but produced the smallest number of results.

After downloading the Firefox APP for Reverse Image Search, right click on any image.  As an example, I am using these cups as a test for how the effectiveness of reverse image search.



Right click on the image.... do you see how the Reverse Image Search is now an option? With the Firebox APP, I only got three Reverse Image Search Results (the fewest number of images) for any method.

 
However, this method did include an image "borrowed" by a person with a Google+ profile without attribution, name of the artist, or link to my website.

I visited the page..... which turned out to be a Google + profile. What irritates me is that people borrow the image without an attribution or link back to my website. 



I am not going to worry about this now, however this has been a stunning or even shocking revelation from Reverse Image Search.

My observations of Google Reverse Image Search.

• The size of the image affects search results.
• Type of image (GIF, PNG, JPG ) affects search results.
• Method used for Reverse Image Search produces different results.
• Uploading an image or dragging an image into the search box produced nearly identical results.
• The Firefox APP produces the smallest selection of images.

Every variable of image type and size changes the Reverse Image Search Results.
 
Reverse Image Search is still in a development phase. The results are inconsistent, but it seems to be improving, and it is another tool for protecting your art or craft from copycats.

Are you concerned about preventing copycats? Read the post "Copycat, copyright or coincidence - simple steps for prevention for suggestions to protect your work. Use the Google Reverse Image Search frequently to be proactive doing a few tests for the most effective results.

Harriete Estel Berman

Stay tuned to tomorrow's post about another example of copycats and what we can learn.

RELATED POSTS:

Copyright and COPYCATS

Copyright and COPYCATS

Recently I learned some details about a far too common practice in which contract designers and manufacturers surf the internet for design ideas.  They are looking for trends in consumer tastes to "inspire" new design concepts.  Unfortunately, the line between "inspiration" and "copy" which may be clear to most of us has been crossed on enough occasions to raise real concern.

Therefore,protect your work with a registered copyright.  

Legally, copyright belongs to the person who can prove that they are the earliest author or original creator.  But one small additional step can make a big difference if you find someone copying your work. 

"Registering" your copyright through the US Copyright Office provides a clear legal foundation (i.e. a dated document officially issued by the US Copyright Office) that you are indeed the original creator.  

However, even a registered copyright does not automatically protect your designs and ideas from infringement.  The Copyright Office will not take action against an infringer.  If you discover that some entity is copying or infringing on your designs, then you (at your own expense) must sue the infringer in court for copyright infringement.  But the registered copyright provides a powerful foundation supporting your claims.

 

With or without a registered copyright, you must be an active advocate for your work and for the ethics of our community.

You can register copyright on your design (or series of designs) at any time.

So the real question is, How should I decide whether or not to register the copyright of my work?         

Registering your copyright does cost money, a minimum of $35 per application.  So it is probably not worth registering every single piece of work that you make.  However, if you create a particularly novel design or a design that will likely influence subsequent work or a series, then the expense and effort of registering your copyright may be worthwhile. 

Even with registered copyright, legal enforcement via the courts may be too expensive and time consuming and far beyond the resources of most single individuals.

Consequently, social norms and raising awareness can actually be the most effective path to quell growing copycat abuse. The internet can help this call for action . . . and  I am advocating for a change in our collective thinking.  We need to raise our voices loud enough and expect a new behavior regarding "borrowed" or copied designs, i.e. a policy that compensates artists and makers for commercial use of our art and craft designs.

Instead of just shaking our heads, giving up, or slinking back to our studios, we need to bring visibility and awareness to the copycat problem. 

Many artists and makers are afraid that any controversy, even as the victim, will shine a negative light on their work. 

I understand this fear. This week I witnessed what was intended to be an open discussion about the issues turn into an abusive fight over craft carrion.  As long as the craft community can't stand together with united voices for just treatment of fellow artists and makers, we will continue to be exploited.

Look at the real and growing impact of copycats.  It is time we said out loud that stealing our designs is UGLY.  It is illegal and unethical to copy other people's work.

Kim Lyons says: "Where I sell on the weekends, its flooded with foreign manufacturers (and local stylists) taking pictures. There are apps now that allow the photographer to be even more sneaky with their i-phones. Some days you get exhausted by all the "no photos" or "please delete that photo" that it distracts from selling.

Lyons continues: "And yes they do like simple designs that are easy to rip off. But blaming the artist for having a simple style is not fair. Those styles are the bread and butter keeping the artist afloat."

"Blaming the artist for creating simple designs, is the same mentality of blaming any victim for being victimized." END QUOTE

Going back to the copycats:
This flock of predators pick over the craft community for mainstream manufacturers and marketing venues. The stores with their distribution channels, brand names and superior marketing budgets assume that the artists/makers will never find the copycat version or we will just walk away in defeat. They are counting on our collective passivity.

As a community we can change the culture of defeat and tolerance of exploitation.  We can raise our voices in a chorus to call out copycat abusers.

It can be worth your time individually and collectively.  Design fees could range between  $2,000 to $5,000. (That is a guess...anyone want to tell me clearly what to ask for as a fee? There are many variables.) Typical terms could be a flat fee or a percentage of sales or both.  Ideally, a contractual arrangement should be agreed upon before the company starts manufacturing and selling the product. 

My hope is that these posts and the numerous discussions on Facebook bring visibility to the ethics within the design communities. 

It is time that we ask our craft organizations and marketing channels to support a voice against copycats.

Help make the change you want to see in crafts. Do not let copycats continue to steal from the arts and crafts community. Raise visibility for these issues from within and without.

Harriete Estel Berman

 

Are you an artist reading this? What actions should you be taking to protect your work?

RELATED POSTS on ASK Harriete:

Copyright - Practical and Financial Issues

Copyright - Legally Protecting Your Work

A response to comments on Copycat, Copyright and Coincidence.

Copycat, copyright or coincidence - simple steps for prevention.

The "No New Ideas" Justification for Unethical CopyCat Behavior

Preventing Copycat Behavior

What is the difference between Copyright and Trademark?