We discussed the meaning and scope of Intellectual Property in our previous article. Now, let’s move on to the serious subject of protecting your IP and your options if someone infringes your copyright – what to do if someone is stealing your ideas!
Design theft is a real threat to every independent designer. There are several reported instances of both big and small companies stealing designs created by independent designers and selling it as their own. The multinational retail corporation, Urban Outfitters, is a notable example. As you can read in this Huffington Post article, jewellery designer Stevie Koerner launched a campaign against Urban Outfitters, for not only stealing her pendant designs, but also using a tag line similar to what she used in her advertisement. The sad thing is that Stevie wasn’t the first designer with this experience. Many other designers have also accused Urban Outfitters of stealing their work. (More on this later.)
This simply reiterates the fact that not only should you be aware of your rights, you should also do your part to prevent theft and protect your work. Only then can you respond to such a problem appropriately, if something similar were to happen to you.
Let’s first look at how you can prevent Intellectual Property (IP) theft.
How Can I Prevent Someone Stealing My Ideas?
In order to sell your designs or ideas, you will have to share your design portfolio with potential buyers. If you sell your product online, you will have to share images and other details on the internet. Either way, there is a risk of your design being picked up by an offender. If not the entire design, they may borrow elements from it, and use it as their own.
Although you cannot eliminate this risk entirely, you can prevent it to a certain extent. The simplest way is to register your copyright or acquire a patent for it, as is appropriate. You can find out which of the IP (intellectual property) rights best apply in your case by visiting this article. When you do this before releasing your design, you obtain the government’s official recognition of your ownership over the IP. This will strengthen your legal claims over unfair use or infringement if you find someone using your work without permission.
Additionally, you should digitally watermark your images to track their use. Solutions such as Digimarc and Civolution allow you to identify your creations by embedding images with your unique watermark. Use only low resolution images in your design portfolio to minimise chances of theft. When you have to showcase your designs to potential buyers, ensure that every image has a watermark on it. You can also post a copyright notice and a disclaimer on your website to warn visitors against using your work elsewhere.
Now, let’s take a look at what you can do if someone has infringed your copyright.
What To Do If You Think Someone Has Infringed Your Copyright
Although your legal claims are strengthened when you register your copyright, you can still take action against infringement even if you haven’t. In either case, if you suspect someone has stolen your work, you will have to first determine whether the use violates copyright law or not. Factors to consider include
Who is the copyright owner: If the design was created for the company that employed you, your employer may well be the copyright owner. So, they should pursue the infringement claim. Similarly, if you are in education, the work may legally belong to your educational institution – so do your homework and find out.
The license terms: If you have licensed specific usage rights to a user, you may have to check whether they are using it in a manner beyond the scope of what your agreement mentions before taking action.
Does it come under fair use: According to copyright law, copying is allowed in certain cases where the amount copied is very small, or it is used for specific needs such as in education. You may like to look at this aspect of use to make sure you have a valid claim.
After considering the above factors, if you conclude that copyright infringement has indeed occurred, you should next analyse how the infringement affects you. One aspect to consider is the financial impact of the use of your intellectual property. This will help you decide the future course of action and whether a lawsuit is necessary.
In any case, you should first send a Cease and Desist letter to the offender. You can find sample templates of what it should contain on this page on Floating Banana.
If the violation was unintended, the individual or business will usually revoke their claim over the IP, take down related images and stop using it entirely in their products. You could also ask for a settlement for the profit they made from use of your art work, if you think they have financially gained from using it.
Filing a Case
In some cases, the offender may reject your claim of copyright infringement. You may then have to consider filing a lawsuit. Your copyright lawyer will file your lawsuit and will work towards a settlement that compensates for the unlawful use of your IP. If the offer from the other party isn’t satisfactory, you can choose to go for a jury trial. Read more about the various steps in this process in part three of this article.
First you must determine whether it is worthwhile pursuing a lawsuit by analysing the amount of time and resources you will have to dedicate. Sometimes it can become complicated and very expensive, like the case of the Modern Design Company. In this article on How Design Terry Stone tells how the owners Raye and Strassburger ended up selling their property to fight their lawsuit against the big companies that stole their art work and used it on T-shirts. Do you have the money or time to take a company to court?
If you think about how high street shops imitate looks from the runway every season, some are just scandalous copies. Do high street shops get sued every season? Sometimes! But even for a large multinational company, sometimes they just have to take it on the chin. The legal proceeding simply aren’t worth it. This article on Hit The Floor has a few unbelievable examples of scandalous copying, like the Primark vs Céline image above.
This article on Time magazine offers an interesting insight into copying in fashion industry, and claims that this copycat phenomenon is simply common place: The Knockoff Economy How Copying Hurts and Helps Fashion.
The Same Idea At The Same Time?
Just to make matters more complicated, I wanted to go back to the necklace I mentioned in the beginning of the article. This article on Styleite (originally on regretsy) makes an incredibly valuable point, that with a little further investigation, there actually a plethora of sellers on etsy producing necklaces with state-shaped pendants with heart cutouts. Did they all copy Stevie? Did Stevie copy one of them or did they all just have a similar idea?
In the world of design, not every idea can be completely new. You take inspiration from a plethora of different places and you may not be the only one who thinks of something. When you suspect someone has infringed your copyright, take a step back and remember that it may not be that they have seen your work and copied it – You just thought of the same thing! The legal battle may not be worth your time and money. It’s easier said than done but by making your work as original and unique as possible will prevent this from happening.
What To Do
Prevention of theft in the first place is much easier than all the legal complications associated with it after it occurs. So know your rights and act accordingly. This will give you the upper hand if you find your precious work stolen and have to prove your rights over it. Then, even if someone has stolen your work, it may not be worth the hassle to fight it.
You also can’t be scared to share your work! The online world of retail and promotion is one of the most exciting developments in recent history for designers and makers. Without the internet, getting your name out there would be a whole lot tougher. Just be careful where and what you are sharing, keep your eyes peeled for copycats, be aware of your rights and know what action to take! Remember imitation is the sincerest form of flattery. (If only it wasn’t such a headache to sort out!)