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.
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 Office, Own IT or DACS.