Grace Bonney started an excellent conversation with her recent article, 50 Shades of Grey: Copying and Credit in Design. Go ahead and read it now, if you haven’t already. Her ideas are spot-on, and I wanted to add a little bit more in the hopes that it will help to clarify some of the issues and help designers who feel that they have been ripped off come to a satisfactory resolution.
For those of you who don’t know me, I am an attorney who represents artists, designers, and other creatives. I am also a designer, so I have seen the issues from both sides. And I deal with issues of copying and credit in design pretty much every day. I have taken big companies to court on behalf of artists, and I have also negotiated a number of private settlements around these issues.
My goal here is to add a supplemental layer of legal insight into Grace’s already-amazing post, in the hope that it helps artists and designers take action when they feel that they have been treated unfairly.
The Legal Underbelly of Copying and Credit in Design
When we are dealing with copying and credit in design, we are typically looking at two broad legal areas: copyright, and to a lesser degree, trademark. Copyright law governs how creative works are treated and trademark law governs how brands and brand associations are treated. The concept of credit plays a more minor role and actually has a much lesser function, legally speaking (most of the time, and this varies wildly around the world – French law comes down hard on issues of credit).
As Grace points out, designers often create new works based upon existing works. In and of itself, that is neither good or bad, and there is value in giving new life to something that might otherwise be forgotten. There is value in bringing something from one part of the world and introducing it to a new audience.
However, copyright law (which is mainly what we are dealing with in these cases) only protects “original works of authorship fixed in any tangible medium of expression”. If the work is not original, copyright law won’t protect it. If the work is not fixed in a tangible medium – in other words, it can’t just be an idea – then copyright law won’t protect it.
The definition of “original” has a lot of gray borders and gray areas, especially if a work is based on a pre-existing work. But the law has said a lot on the topic and the main point that I would make is that it is not a matter of opinion and it is not something that can be determined intuitively.
Another point: copyright law doesn’t generally protect utilitarian objects. So that means that by default, things like clothes, chairs, eating utensils, etc. are not going to be protected by copyright. Elements of them might be, but as a whole they are generally not protected by copyright.
Finally, trademark law might have a role to play. Sometimes an artist or designer becomes so associated with a particular style that anyone who knows that artist will know his or her work just be recognizing their particular style. Remember, trademarks are about protecting brands, and a style can be a huge part of one’s brand.
Outrage Versus Action: Dealing with Copying and Credit in Design
I see it so many times and I cringe each time. A designer takes to social media after finding out that some company has copied his or her work. I call this the outrage approach. I get the impulse to vent, this approach can be counterproductive, and I will gently suggest what to do instead.
But…even before someone copies your work, register your copyrights. It’s a little money up front and it can mean the difference between getting paid or not getting paid if you get ripped off. Most professional designers routinely register copyrights, and one of the first questions I ask a potential copyright infringement client is whether or not they registered. A registered copyright makes a case easier, and unregistered copyright case is an uphill battle. I wrote a post about copyright registration and photographers, which you might find helpful.
OK. So what’s wrong with the outrage approach? A few things:
- As Grace pointed out, anything that you say can be used as evidence against you. We all say things in anger that we wish we hadn’t and it sucks to have those things come back in court. Also, if you don’t have your facts straight at the early stage, the other side can use inconsistencies against you.
- It makes it hard to quietly settle. If you want to reach a peaceful (and profitable) conclusion without having to go to court, it becomes more difficult when things have already escalated.
- You can get sued. Potential copyright defendants can do what’s called a declaratory judgment to protect themselves. They will ask a judge to declare that they did nothing wrong – but even if they did, the declaratory judgment allows them to choose an inconvenient forum far from where you live, making it difficult to vindicate your rights. Declaratory judgments are available when there is an actual controversy, and social media comments about the alleged infringement would most likely be evidence of that controversy.
- It puts the potential infringer on guard. If someone thinks they will be sued, they can remove evidence that could help you prove your case. Not helpful.
Enough about what not do, here is some information about how to take action if you think your work has been copied by a larger (or any) company:
- Register your copyrights. I know I already said it, but I am a zealot.
- Don’t be afraid of lawyers. If you think that you have had your work infringed upon, don’t be afraid to reach out to an attorney (make sure that the attorney that you are speaking with has experience working with copyrights – a local DUI lawyer won’t do the trick). Many attorneys will offer free consultations about your legal matter and many attorneys will do copyright cases on contingency (Contingency means that the lawyer doesn’t bill you upfront, but takes a percentage of the amount recovered. Also, if the copyright has been timely registered, the other side pays your attorney fees). Also, a lawyer can help you understand what your rights are in a given situation.
- Don’t demonize the infringer. Mistakes happen – not every company that releases an infringing product is doing so out of malice, or even willfully. I have seen cases where a third party contractor told the company they had rights to something they did not, and the company relied on it. Sometimes an employee makes a bad call. The point is that a productive settlement can often be reached if both sides listen to each other and remain respectful.
- Know that things can be resolved outside of court. Not every infringement means a court case. Many companies are motivated to quietly settle the matter for fear of damaging their reputation should the matter go to court. Approached the right way (and here is where a good attorney can really make a difference), a remedy can be found without entering into a time-consuming and stressful lawsuit.
- Don’t be afraid to stand up. Most people don’t like confrontation and don’t like the idea of having to go to court. However, an artist’s livelihood derives from the rights they have under copyright law and not standing up for them is the same as not having them at all. Finally, if companies know that they can get away with copying the work of independent artists, they will continue to do so. So by standing up, you are helping the design community as a whole.
Anyways, those are my thoughts on an already great article about an important topic. If your work has been copied, there are definitely actions that you can take to come to a resolution. Any professional artist or designer should have a sense of these kinds of things and have a plan on how to approach these types of situations.
If you are a creative business owner looking to grow or protect your work, it is important to understand how having a lawyer on your side can make the process easier. You might try the Creators’ Legal Program – it costs only $95/month, you can cancel at any time and you have unlimited access to an attorney.