Sometimes when the copying is blatant and direct communication between the two parties fails, the designers, artists or makers who have been wronged by a copycat consider reaching out to the public for support to draw negative attention to the misbehaving copier.
Public support can be a helpful move, if done thoughtfully, particularly for a small company copied by a large company. Before you take this drastic step though, be mindful of the potential consequences, and think carefully about how you’ll plan the public statements. Public shaming is particularly tempting when you’re angry. Before you go to the Internet to publicly vent frustration, consider what your long-term goals are and the impact your behavior will have on your business.
This is the third post by lawyer Rachel Fischbein about dealing with a copycat situation. The first post was "What Is A Copy? Copycat?" The second post was "Initial Copycat Communication." ASK Harriete recommends that you read these posts before taking any actions. Fischbien recommends focusing on the issue, not the people involved.
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 ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete. As with the previous guest blog posts by Rachel Fischbein, please consider this blog general information, not legal advice. Should you have a concern about copyright infringement, please speak directly to an attorney to get advice on your unique situation.
When preparing to make a public statement about the copycat incident, refer back to your notes of the timeline and educate yourself on copyright laws. Make sure what you are saying publicly is accurate, and you’re being fully truthful. You may want to consider publishing a longer document as a blog post, a downloadable document, or even a website to explain the copying and the interaction with copycat. Include all the important details, so it's clear you aren’t trying to spin the truth in short social media posts. Curious minds will be looking for the facts needed to come to their own conclusion. Walk the readers through the legal standards of copyright infringement and how the facts of the situation show infringement. You may want an attorney’s assistance for this.
While you may be dealing with difficult personalities of the copycat, always keep the statements and public conversations focused on the copyright infringement facts, and not about the people who represent the copycat business or designer. You may encounter a person on the copycat’s side who is deceitful and disrespectful, but your statements shouldn’t be about that person’s character traits directly. Limit your statements to the actions taken by the copycat and the copycat's representatives.
You may post copies of emails or other documents sent to you by the copier, if the documents or emails were not sent after a promise of confidentiality from you. Be cautious though when using most intellectual property created/owned by the copycat. You may post only want it necessary to make your point, using the Fair Use doctrine of Copyright. Do not copy their logo to add their branding or unnecessarily take screenshots of their website for reposting. When in doubt, consider linking directly to the copier’s website. Be sensitive to their intellectual property and respect any information that they may have shared with you with an expectation of confidentiality.
Remember your reputation is also being publicly showcased.
This public statement is not only a reflection of the copycat’s business practices, but your reputation as well. Write your statements with professionalism and care. Try to showcase your logic and a desire for justice. Have a friend who doesn’t know about the issue read your statement first, before you publicly post anything. Ask for honest feedback about how your business looks in light of the posting. Does the statement foster the type of reputation you’re trying to build for your business? A public statement being passed around the Internet may be someone’s first introduction to your business. Remember, once you publicly post anything to the Internet, consider that it becomes a permanent posting. Someone may save a copy and bring it back to public attention in the future.
Tell the community exactly what they can do to be helpful.
Go back to your original goals as discussed in post #2 about Initial Copycat Communication. What do you want from the copycat? How can others in your community or the general public help you get what you want? If the copycat is a service provider to others in your community, such as a manufacturer with a private label, perhaps you can ask other designers to not use the manufacturer’s services in the future. If the copycat is a large brand, perhaps you are asking for social media sharing and public visibility.
Include your ideal resolution as well into the messaging. Let the copycat know it isn’t too late, and now there’s only shame to suffer through. Possible resolutions include:
- A licensing or royalty payment for the use of your designs.
- A promise to stop creating that product in the future.
If the copier does agree to a payment or to stop production, be prepared to make one final public statement, if requested by the copycat, letting the community know how the problem was resolved.
ASK Harriete asks:
Are there any negative consequences to a public airing of the copycat situation? (This is assuming that everything that the copy victim has written is professional in the public disclosure.)
Can the copy victim be sued for this public disclosure of the copycat situation?
Are there any other negative consequences that the copy victim should be prepared for?
I will try to find some answers.
Read the previous posts by Rachel Fischbein:
Information about Fair Use: