Guest blogger Emily Danchuk is an intellectual property attorney with the law firm of Furman Gregory, LLC and founder of Copyright Collaborative, a web-based subscription program designed to educate, empower and unionize artists across the country in the fight against intellectual property theft.
I think it’s safe to say that the word “infringement” conjures up visions of Chinese factories and dusty marketplaces in India, right? In reality, the practice has become a striking and integral part of many U.S. companies’ business models. Some of the big offenders are making billions (that’s right-billions) of dollars off of the backs of real, skilled artists. Since the problem is not being addressed directly, it doesn’t have any end in sight.
Many artisans who have worked diligently in creating unique works and establishing their goodwill in the industry have been ripped off by “big box” American companies. Another aspect of the “infringement culture” we have right under our noses is internet-based companies, such as Ebay and Etsy, who are able (legally) to turn a blind eye; just take a quick look at Alibaba.com and the problem can’t help but smack you right in the face with its absurdity.
Some of these “big box” companies have their own retail stores at the ready to accept knock-off lines of products and have the ability to perform quick turn-around production. These companies have been accused of having “design scouts” who attend trade shows to steal the original designs of artists and take them back to their home base for reproduction.
So, while the big box company creates an “instant” product and avoids paying licensing fees to the artist, the original artist is faced with confused retailers who wonder why their sales of the original product are being undercut by a cheaper, infringing version. For example, Williams-Sonoma has been sued for copyright infringement, as has Urban Outfitters.
As for Ebay and Etsy-type companies, their laissez-faire attitudes about knock-offs and outright infringement simply compounds this culture. In 2003, Tiffany, Inc. discovered that over 70% of the “Tiffany” items being sold on Ebay were knock-offs. Tiffany, after urging Ebay to address the problem and failing, sued Ebay in a landmark case. The Court determined that Tiffany, not Ebay, had the burden of policing the Tiffany intellectual property. Ebay claimed that its VeRO infringement reporting program was sufficient to address the problem.
So let’s see how well that VeRO program works – take the Paul Richmond matter, for example. Paul’s friend noticed knock-offs of Paul’s (definitely unique) gay erotic paintings on Ebay. Paul determined that a good number of his paintings were being reproduced in China. Paul used Ebay’s VeRO program to report the infringement, and Ebay removed the post. Only to allow it to be posted again in a week under a different title. Almost two years later, and after many Ebay VeRO reportings, Paul’s paintings are still being sold on Ebay by the same infringer. You can read Paul’s (sometimes hilarious) story on his blog.
Ah, Etsy. I do sometimes wonder if the first ever blog post was written to complain about knock-offs on Etsy. It seems to go that once you post on Etsy, you open up your work to a free-for-all, somewhat like using a Chinese manufacturer. Etsy is chock full of “hobbyists” selling handmade items, many of which are copies of original, career artists, down to the positions of the items in the photograph. I do hope that Etsy will address this problem, as many artists are now refusing to use Etsy to sell their designs because of the prevalence of knock-offs.
Many hard working artists feel helpless when they discover their designs – or similar renditions of their designs – being sold by huge, established companies. They feel that confronting the company will just lead to a war with in-house counsel and that their voices will be ignored and dismissed. Therefore, many artists, believing that the fight isn’t worth the potential battle, simply allow the infringement to occur, and hurry to create new product lines to offset their financial losses and personal feelings of helplessness.
Artists feel violated when their artwork and designs are knocked off. Laura Zindel, the owner of Laura Zindel Design, a small Vermont-based ceramic design company, was recently a victim of infringement by a large, $30 million company.
She explains, “In a very direct way, this knock-off cheapens what we have worked so hard to achieve: quality products made in the USA at a reasonable price. The infringement of our line has undermined the hard work that we put into developing, designing, producing and marketing our line for over fifteen years. For a large company to simply reproduce our line and to say that it was there for the taking is reprehensible. A lot of my time and energy has gone into the backlash of this, and it has monopolized months of my valuable time that should have been spent running my business and creating new works.” The frustration and weariness is often palpable.
As an intellectual property attorney representing artists, I can tell you that the anger and powerlessness is contagious; I oftentimes feel frustrated and just as infuriated as my clients when I’m hired to combat the arrogance of large companies stealing designs and original works of art and making cheap, mass-produced knock-offs.
So, what can artisans and artist-based small companies do? While artists may feel helpless and as if infringement is simply part of the industry, it doesn’t have to be. Artists must understand and remember that these big box companies, and even foreign infringers, want them to feel powerless against the problem and to accept infringement as a cost of doing business.
The more prevalent the practice, the more acceptable it becomes. However, ignorance is not bliss and can be downright costly. Once artists and small companies take a stand by becoming educated on intellectual property right basics, and begin to understand the importance these rights play in their business health and valuation, they gain back some of the power that has been so casually stolen from them. Several actions can be taken by artists, as set forth below:
- Educate Yourself! Understanding the basics of intellectual property rights and the differences between copyrights, trademarks and patents is a responsibility that an artist and business owner must take on. The more you know, the better off your company can be, and the more your business is worth in the long run.
- Register Your Copyrights! Registering your artwork, designs, textual works and any other original works with the United States Copyright Office as soon as they become generally available to the public can mean the difference between a $25,000 immediate settlement and paying a lawyer more than you can afford to stop the infringement months or years down the line. Proper and timely registration of a copyright affords a copyright owner statutory damages of up to $150,000 plus attorneys’ fees and costs, and can be the best weapon to leverage your rights and position in an infringement matter so that you don’t have to slog through costly, stressful and time-consuming litigation.
- Exude Deterrence! Using copyright, trademark and patent notices correctly gives others the impression that you are educated and ready to enforce your intellectual property rights. If you’re in doubt as to how to properly use these notices and symbols, contact a local intellectual property attorney. Include a strong copyright and general intellectual property notice on your website, informing users of the website that your works are registered and you will enforce your rights. Moreover, when you are asked to share your designs with a bigger company who expresses an interest in licensing designs from you, have them acknowledge, in writing, that you are giving them certain proprietary designs only for the purpose of considering and discussing a licensing arrangement. Letting these companies know that you are ready, willing and able to enforce your rights goes a long way in deterring infringement.
- Speak to Other Artists! Once artists start the dialogue and identify the similarities of their infringement stories and experiences, they can begin to work together in a unionized fashion to address the issue of intellectual property theft. As artists identify their problems and struggles with this issue, they can begin to develop solutions and to fight back.
- Strive to be Original! Make a concerted effort to avoid being too “inspired” by other artists and their creative works; remember that imitation isn’t necessarily flattery in the eyes of the original artist. Artists need to stick together to preserve the integrity of their individual and collective works, and this unionization cannot occur until intellectual property theft is viewed as a morally unsound practice.
- Speak Out Against Infringement! While getting a lawyer involved is often necessary, use your voice as well. Calling out infringement and infringing practices is the only way – in this attorney’s opinion – of addressing this problem in any substantive way, instead of chipping away very slowly on a case-by-case basis.
Stay informed on this topic by visiting Copyright Collaborative and signing up for their newsletter.
Emily Danchuk can be reached at Emily (at) fgd-law dot com or at 207.571.9365. She is available to give seminars on the basics and importance of intellectual property rights.