Monday, 14 January 2013

Imitation Is Not the Sincerest Form Of Flattery

Having your own creative business is so rewarding, especially as selling online means you have a global audience, with people all over the world being able to see the designs you have created. However, it's not all rainbows and unicorns. Often many designers will find themselves caught up in copyright problems, whether the victim of plagiarism or the person being accused of it.

It always upsets me when I see fellow creative people say that nothing is original and we need to accept that all we're doing is copying other work in order to justify plagiarism. While I completely agree that everything has probably already been done, I think that just cements the importance of trying to create something recognisable and unique, even if it's just a small detail like having butter shaped like a heart rather than square.

I've always felt like Little Miss Delicious is my baby - all I want to do is protect her from the bullies in the playground. But I never want to be the overprotective mum that emails every polymer clay artist selling cute food themed jewellery as, while it is a niche style, there are always going to be millions of designers that fit into this category, each producing similar but still different designs. This is why I feel it's so important to create a recognisable style, which I feel I have (hopefully!) done through the branding of LMD, the way the faces are painted, and the distinctive trademark style and shape of the designs.

As LMD has grown, I have received more and more emails alerting to me to other companies selling similar pieces to mine. While I really appreciate people letting me know, most of the time the other designs are different enough that I never have to take action. However, on occasion I do see products that cross over from being inspired from a similar style to mine to just plain plagiarism. I've been building LMD for 3 years now and I've put all my time and effort into creating this brand, so as much as I hate having to potentially upset someone, I feel it's important to protect my work when necessary.

Examples of my experience with copyright issues


While it's amazing to know I've potentially inspired people all around the world, exactly replicating one of my pieces isn't flattery, it's copyright theft. Inspiration means you seek to create your own original version of something, which is completely fine, but making a direct copy then selling it for profit is not. The most heartbreaking part about this was that they were selling the necklace for £2 - my supplies alone cost me more than that! I spend AT LEAST 6 hours making each necklace, so to price a copy of that level of work so cheaply made me so upset. Hopefully it will help people understand that you get what you pay for though!


The company that made the above 3 pieces first came to my attention last year when another designer sent me a link to their store. At the time I thought they were different enough that I wouldn't have to play bad cop and contact the designer, but over time they seem to have gotten more and more similar, and when I saw the gingerbread man necklace I felt it was time to step in and protect my designs. The designer has been an absolute sweetheart and very understanding about it all, which is always a huge relief. I think us small designers need to stick together and support each other, so when situations like this arise it means a lot to me that people are friendly and cooperative and amend the problem immediately, whether the copying has occurred by pure coincidence or where they have simply taken inspiration that step too far. 

So, how can I protect my designs?

In the UK, any original piece of jewellery is protected by intellectual property law. 

What is intellectual property? Intellectual property exists when you create something unique. You can't protect an idea, but you can protect what you do with it. This means the idea or concept behind your design aren't necessarily protected, but the finished product as well as branding, logos and website content can be protected. These protections allow you to stop others from using your designs without permission or charge them for the right to use it.

Who owns intellectual property? If you create something, you or your business will usually own the intellectual property rights. However, if someone you employ or subcontact creates something for you, their contract should clarify who owns the intellectual property. This is especially relevant in terms of use of graphics created for your business, and should be something you discuss when getting artwork commissioned. 

Types of protection: The main ways in which your work is protected are by patents (protects inventions), trademarks (protects logos) and copyright (protects original artistic work). The type of protection you need depends on what you have created, but you can use more than one type of protection for the same product. 

While all forms are important, copyright is probably the most relevant for us designers. It's not something you need to register or purchase - it just is. It exists automatically as soon as you create something original. However, it is recommended to keep a record of the progress of your designs as proof of your copyright claim, although many of the suggested ways of doing so (such as keeping dated sketches, or posting pieces to yourself with a dated stamp) no longer stand since dates can be altered on most mediums - it still can't hurt to try though! There are also various companies that will offer a similar service (such as keeping your designs in a locked vault) for a fee.

There is also the option to register your designs, which again, involves a fee. This process protects your designs for 25 years, and means if you do need to take legal action in the future you won't need to prove the designs belong to you.

What to do if you feel your intellectual property rights have been infringed

There will always be times where intellectual property rights don't act as a deterrent for others that may coincidentally or purposefully make something exactly the same as you, and it is important to know what to do in this situation. 

If you feel your intellectual property rights have been infringed, you have the option to stop them from using it or setting up a commercial agreement to allow them to use your intellectual property for a fee. 

If you would prefer they stop using your design, I would always suggest to first contact the person with a carefully worded letter expressing your concern. You can get a solicitor or specialist intellectual property lawyer to help you word this, but I find writing a polite but firm email yourself seems to work just fine! Usually this step is enough to resolve the situation, especially as it's possible they were completely unaware of the infringement and will be just as shocked as you. However, in cases where it is not enough a cease and desist order may be needed, followed by other action such as mediation or arbitration to help you reach an agreement or a licensing deal. If this fails, you can take legal action, but this can be an expensive and lengthy process, so should always be your very, very last option. If this costly route isn't an option for you, don't underestimate the power of naming and shaming if all else fails!

I really hope this has provided you with a helpful insight into the world of intellectual property (although I do apologise for the length of the post - once a law student, always a law student!). I cannot stress enough how important it is to be aware of copyright laws in order to protect your designs as well as ensuring you aren't stepping on anyone else's toes. If you would like more information about your rights regarding intellectual property, I'd recommend visiting the Intellectual Property OfficeOwn IT or DACS.



17 comments:

  1. A lot of your designs are exactly the same as some from Paperchase though. You have a felt cloud thing scrunching his face up with a lightening bolt. I have that on loads of stuff as it is from Paperchase's Cloud 9 range. And that's just one example.

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    1. As I said, the kawaii style itself isn't unique, but it's how you make it your own that sets it apart. I've just had a look on Google and can't seem to find the Paperchase version of the cloud you've mentioned, unless it's the one pictured here which is very different from mine - http://i5.photobucket.com/albums/y151/vicksloulou/tsuk/064-2.jpg. I actually made my Christmas collection last year and released it right before Paperchase released theirs, just to find that their items were actually exactly the same. It was a huge coincidence, so this year I changed lots of pieces slightly to ensure their was no cross over. It's just small details like that which I think make a lot of difference - even if it's pure coincidence that your products are similar to something else, it's still important to try and make them as identifiable and unique as you can xo

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    2. Paperchase has been known to copy. Or at least, the people that do designs for them have done. There was one case on Etsy where a design was pretty much half traced and fiddled with a bit, but still very recognisable as the original artists work. I can't remember what happened in full, but I'm pretty sure the items were at least taken off sale.

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    3. The Paperchase Cloud 9 range isnt anything like the LMD cloud design, apart from the fact they're both clouds... Does this mean if Paperchase use clouds no one else can?

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    4. I should add, what I say doesn't mean I think that it's fine to copy Paperchase because their designers copied someone else (which I don't in anyway think you did Maxine!). Just thought it was an interesting aside to this comment as this Paperchase designer DIRECTLY copied someone.

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  2. i think though, especially with the pieces you have mentioned, you get what you pay for. you can tell you craft yours with a lot of dedication, and if you weren't going to wear it you wouldn't make it. I love your stuff!! xxx

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    1. Thank you! I'm really glad that all the effort and dedication that goes into each of my pieces shows through :) xo

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  3. i didnt know about Intellectual Property Rights before reading this & as a maker & (hopefully) future business woman i think its important people know about this especially because i dont think many people do.

    Thank you for sharing this Maxine :)
    xXx

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    1. I'm so glad you found it helpful! If you ever need any help in terms of setting up a business, don't hesitate to give me a shout, lovely! xo

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  4. That's awful - I'm sorry that someone decided to copy your designs. Thanks for sharing all of the info though, and hopefully it won't happen again in the future! xxx

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    1. I hope not! I truly believe in order to survive in the independent designer world you have to bring something unique to the table, so anyone that thinks it's ok rip off other people will never go far, so it's in their best interests not to! xo

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  5. This is a really interesting read, as I had this problem earlier this week with my dresses. I think it was just a case of inspiration taken to far, even to the exact same fabric, but the shop in question were really good about it and took the dress off their site, since I had it for sale 2 years earlier.
    I think it can happen by mistake, but it is good to know where you stand when it does happen.

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    1. I'm glad to hear your situation was resolved in a friendly manner - it does make all the difference in the world when they're cooperative! xo

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  6. hmm...I hope its the one that I found...I recently found a shop so incredibly similar..and meant to pass it on to you, they were on Etsy, but looks like I didn't save their shop. I can't seem to find them now, but will if I do.

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    1. I know there are a lot of similar shops on Etsy, but very few cross over from being inspired by similar styles to just downright replicating my designs. I do always appreciate people sending me links to similar places though - even if it's not something I have to act on, it's always nice to appreciate art similar to mine! xo

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  7. This all looks horribly similar :(
    http://3.bp.blogspot.com/_kwZVnO9cmMY/So3R9nyZRhI/AAAAAAAAm_o/X88_Dgq8wNc/s400/IMG_0161.JPG

    The cookies! The battenburg! The ice cream! They're pretty much identical! :(

    Omg and this here: http://3.bp.blogspot.com/_kwZVnO9cmMY/Saxv4tA-yCI/AAAAAAAAggs/FHyyq3gwxP4/s400/IMG_1964.JPG

    The toast and the ice lolly. Even the eyes are pretty much identical :(

    It must be difficult for you to be original :( xo

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    1. The cookie, battenberg and ice cream are all very different? I'm not really sure where they similarities are beyond also being food with faces. The shapes are completely different, as well as the style of faces.

      Again, the toast and ice lolly are totally different shapes and the only similarity my designs have to these are being colourful food with faces, which as I said above is not an original idea - there are always going to be many other designers that make similar styled items, but there's a big difference between being a similar style and being a direct copy of something.

      The eyes aren't identical - they have a white circle with a smaller black one inside, then a smaller one white one. Mine are nothing like this, and mine also have a bigger pupil.

      I'm really not sure how you can state they're identical when the only thing my designs share with them is being inspired by the kawaii style. The examples I've given in the post of other designers that have plagiarised me are exactly the same in that they're identical copies. Unless I'm missing something, the Paperchase examples you've given so far have all been very different to my own xo

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