by guest blogger Emily Danchuk
Is there no end to the rip-offs being perpetrated on artists?
My mother, Cindy, is pretty good at rug hooking. Once in a while, she sees a pattern or a design created by someone else, makes her own similar pattern and hooks the hell out of it. After several years of working on the rug (she admittedly takes on too many side projects), it usually turns out pretty well. The resulting rug goes on her powder room floor, and that’s the end of that. Next side project, please.
Last week, one of my clients brought to my attention, with a sigh I could hear through the ethernet, a “DIY” crafter blog’s recent post. I took a look at this blog and read the specific post. A working mom in Virginia had, to her utter glee and astonishment, discovered how to reverse engineer my client’s textile design.
So she posted minute details on the steps she took in creating her “own” version of the design at – wait for it – a MUCH cheaper price! After all, she just couldn’t afford my client’s original textile designs, and that got her mind whirring on how to create the damn thing herself. And to boot, if the reader didn’t want to take the time to do their own reverse-engineering to recreate the design, they could simply purchase the blogger’s knock-off fabric from a Café Press-type of textile manufacturer. The blogger, of course, received a royalty from the fabric sales. Presto Infringement-o!
I just finished preparing a letter to this unnamed design thief, a knock-off artist disguised in blogger’s clothing. I had to explain to this woman that her actions, in fact, amounted to copyright infringement. And my client had to pay me to write this letter. Sigh.
Since when did “crafting” turn into “reverse engineering”? Since when did “Do-It-Yourself” turn into “Do-Infringement-Yourself”? I get the idea of taking a cool design and thinking you can give it a shot by creating your own – and KEEPING IT for yourself. But too many “crafters” and “hobbyists” have fallen down the Etsy rabbit hole by ripping other artists’ designs off, patting themselves on the back, and – why the hell not? – selling the knock-off design themselves, at a much cheaper price point.
I see two elephants in the room here. The first one is the question of how these “crafters” and “hobbyists” don’t realize that they are knocking someone else’s original design off and harming the original artist in the process. Many artists who create and sell original designs are attempting, apparently against all odds, to make a living at being an artist, maker or designer. They take their work seriously; they craft an entire business around their designs and have to come up with the original designs and then create these designs out of their heads. This takes time. And skill. And creativity.
Does the “hobbyist” not have an inkling of a thought as to how hard the artist worked at coming up with the idea and creating a design in the first place? Do they not have a small voice in their head, whispering, “you’re stealing”? In short, have they absolutely no shame? Apparently, ignorance may just be bliss.
The second elephant in the room is one that is a bit more focused. And by focused, I mean that there’s something that artists, creators and designers may be able to influence and control. This elephant is called the “Etsy model”. Let’s examine:
As far as this neophyte Etsy user can tell, and put as simply as possible, Etsy was created to fulfill a need for artists, designers and creators to get exposure for their artwork and to gain sales of artwork. One would justifiably conclude that Etsy was, in some manner, developed to give a boost to the artistic community (while, of course, profiting handsomely from being said boost). One may even conclude that Etsy supported the artistic community.
Then came the Alibabas, Cody Fosters and “hobbyists” of the world. These opportunists right-clicked and reverse-engineered the life out of Etsy, like vultures on fleshy road kill, leaving nothing to be imitated but unattractive needlepoint directing us to Jesus, and license plate-adorned furniture. And Etsy does nothing about it, hiding their intellectual property policies deep in their Terms and Conditions and cloaking the identity of creativity thieves.
Now, while I admittedly advise my clients that hosting a page on Etsy is akin to shipping their original products to China with a note that says, “COPY THIS!,” I do not hold the opinion that Etsy is the only Mad Max in this crazy arena. Ebay, Amazon, and other mass retailers are also guilty of holding out their hands for money while, at the same time, turning a blind eye to the consequences of allowing sellers unfettered and unsupervised activity on their websites.
Anyone who’s followed lawsuits against companies like Amazon knows that these large companies refuse to take responsibility for the widespread infringement that is cultivated on their websites. So, while these companies are proud to brag that they are making heaps of money from their services, they delicately shy away from taking responsibility for the illegal activities that occur on a daily basis as a result of their services.
In lawsuits against companies like Amazon and Ebay, their successful defense is that they have proper channels in place for the reporting of infringement. But just review the practical application of these reporting procedures that many artists have experienced; the report of infringement is made, assurances are given that the products have been taken down, and two weeks later, almost all of the products are back up.
Or let’s look at Paul Richmond’s case: he has been reporting knock-offs of his paintings that have been posted on Ebay for over two years, and, the paintings are still being sold on Ebay today. He’s given up. So how, exactly, are these procedures really working?
For companies who are making billions of dollars, you would think that they would expend at least some resources towards curbing and controlling the prevalent infringement that goes hand-in-hand with their services. But the stark and nasty truth is, they don’t have to. They can pass the buck – legally – and therefore, they’re insulated – legally – from caring and taking action.
Because, frankly, why should they? They’re making money, and that’s all that matters. Presently, Ebay, Inc. is estimated to be worth $60 billion, Amazon worth $27 billion and Etsy worth $700 million. To give you an idea of what this means, Amazon makes $2,000 per second (yeah, that’s right-per second). And personally, I can’t wait until Alibaba goes public, which could make their valuation around $200 billion.
My client who got “DIY’ed” had her design ripped right from her website. No Etsy-assisted plays were made in that case. The problem is when companies like Etsy are essentially encouraging hobbyists to “DIY” everyone, the culture and acceptance of this practice are bolstered, and no one sees what the problem is. But I do. And artists and designers do.
Guest blogger Emily Danchuk is an intellectual property attorney and founder of Copyright Collaborative, which is designed to educate, empower and unionize artists in the fight against copyright theft.