How I dealt with having my designs copied and copyright advice.
I have always loved experimenting, designing and making my own things whether it be handmade cards, upholstery, calligraphy, textiles and crafts. Having your designs copied when you’re in business can be a real time consuming and costly headache. As many of you will know, I have had several experiences of being copied and you dread the expense, legal fees, wasted man-hours and the huge effort to fight your case.
Many small designers and businesses have shared similar experiences or asked for help. Even the big fashion houses who launch their new collections on the catwalk will have copycat designs out in days. This can sometimes be a positive thing, buyers may wish to try out the cheaper version, and may eventually buy the ‘real thing’.
So what do you do when you think your idea has been copied? Well in my case it was to talk it over with my family, friends and staff to see what their thoughts were incase I was over reacting. You will get an honest answer here, but I usually trust my own instincts. I would then seek some legal advice and look for help online.
Photo courtesy of tutsplus.com
My first experience of being copied was by a family friend. She had started her own gift wrapping service which I had no problem with (It’s a free world and I believe competition is healthy), however I was horrified to see the content of her website. It had virtually been a copy and paste job directly from my own website. I’ve also had experiences where photos of my work have appeared on competitors websites (I will talk to you about this later) and usually a short ‘to the point’ letter or phone call will rectify the situation. Competition is healthy but copying isn’t.
I am a firm believer that those who work hard and put in the effort will get results. As Theo Paphitis recently quoted at an awards event in Birmingham “You only get out what you put in”. There is nothing like an original and when you see a copycat design, in my eyes it’s a second class product.
Photo courtesy of Jan Constantine
One classic case I regularly see is lookalike cushions from the Jan Constantine range. Although her designs are very Union Jack (which you can’t copyright), they are unique in their own way and often copied. The company pretty much have a constant legal battle protecting their work.
My first legal case was with Berisfords Ribbons. For years I had a really good relationship with them as one of their stockists. I had designed a classic dog and cat ribbon for Liberty and decided to use Berisfords as my manufacturer. I gave them my artwork and had the range made. Much to my horror, they produced their own designs a few months later. They were so similar that it fooled most of the industry. I took legal action and won my case.
Despite it being a costly and upsetting process, the main thing here for me was to hold my head up high, stay professional and keep designing. We were inundated with emails and customer comments but for me it was the support of clients, customers and fellow ribbon competitors. My staff were also upset so it was crucial to stay calm and weather the storm. I am lucky to have a loyal following on Social Media who were very supportive, however I know of a company who had been copied and went to the extreme lengths of deactivating their social media accounts so their business activity could remain private, with competitors (and customers) being left in the dark.
I have worked in the gift industry for nearly 20 years and have heard so many stories with small designers finding their work copied and on the shelves of High Street stores. I sat next to a buyer of a well known discount home store on a flight back from Hong Kong chatting away about my work. Months later a customer got in touch congratulating me on stocking the chain, except that wasn’t the case. This was a classic case of being copied.
Louise Verity from Bookishly took on Marks and Spencers after seeing typographic arts prints similar to hers. After a series of lawyers letters, M&S claimed it was unfounded. Rather than taking further action which would have been a financial nightmare, Louise used lawyers to highlight the experience on social media. It got a lot of support from the public, press and the design community, but Marks & Spencer maintained their position. They said the product was a short print run and wouldn’t be reprinted. M+S eventually removed it from their website and sold through their stock.
Louise says “I’m not exactly happy with the situation, but I have come to accept that the best thing to do is to rise up and move on. Getting caught up in the unfairness of the situation isn’t going to get the creative juices going”. I was mesmerised by Louise’s experience on the Folksy Blog and her feature has some great advice.
With my various experiences, It gave me food for thought so I decided to speak out and become an Anticopy campaigner helping other designers. For this feature I have got together with a couple of top experts in this field. Dids Macdonald (D) is the CEO of ACID and has had over 25 years experience in the design industry, and Niall Head Rapson (N) is a leading copyright lawyer for McDaniel and Co. We filmed a feature together and here are some of the most common issues that designers can face.
How can designers protect their work if their budget is very small?
N: Most of the work that a designer creates does not require formal registration as it is automatically protected by Unregistered Design Right and Copyright You don’t have to pay any fees to protect your work. What you must do though is make a thorough design history of your work and make sure the work is dated. Ideally this should be by someone else. A©ID, as part of their membership offer a Deposit Scheme where you send them your designs. This is crucial to ensure you get an independent verification of a date before which the designs must have been created.
You can also registered your Designs and Brand names but these come at a cost. A registered design will cost you a minimum of £60 and a trade mark a minimum of £200.
JM: As well as ACID, You will find lots of useful information on the UK Copyright Service website.
What do you do if someone asks to take a photograph of your work for exhibition stand?
N: Say no. It is the easiest way for your designs to be published, sent around the world and copied. If someone wants images of your products, ask them what they want them for. If you think you want to send them some images then make sure you have all the details of the contact. If they have your images and not theirs and you know who they are then you have more control over what they do with the images
D: Be very careful as designs can be the other side in seconds and on a production line in minutes so the word is caution.
JM: For me I would always ask for a business card. Quiet often the photographer could be an admirer, blogger or journalist and it’s always a good idea to ask the permission before you snap away, whether you are on holiday or admiring someones work.
What can you do if you find your photograph on another website?
N: It is annoying especially if it is without your permission. The first thing to do is to as the website to remove the image. If they won’t do that, then you send what is called a “Take Down Notice” to the web host. The web host will more often than not remove the offending web page. This is because if they don’t they can be liable for the use of the photograph.
Is there an easy way you can track where your photographs are being used online?
N: There are some imaging software products available but ideally you need to make sure that you have a record of who you have given your images to, and more importantly told them what they can and cannot do with them. If you can, make a secure area where someone needs a password to download images (such as Flickr) and have terms of use of the photograph
JM: There’s a great little app called Picnic that will easily find where your images are being used online. Photo sharing websites such as Pinterest will have a facility where you can report if your image is being used without your consent. A simple search on google images can soon pick out similar images as well as your own.
When do you distinguish when something has been copied?
N: It is possible that someone has created something that is the same as yours but done so independently. However, if the person who has the copy is someone you know or has seen your work because, for instance, they are a customer or they made an enquiry. then it is likely that they have copied your work. In legal terms if they have had access to your design then it is for them to prove they did not copy your work
What is the first step to take once you realise that your design has been copied?
N: You need to write to them and let them know that you think they have copied your work. Ideally this should come from a lawyer to make sure that you don’t make threats which you shouldn’t make.
D: First of all don’t panic, gather all your evidence for your design audit trail and try and buy a copy of the product, and obtain the receipt this is really important. You then need to get professional advice but you can do a lot yourself.
What is the process for taking legal action?
N: If they won’t stop or acknowledge you then you need to decide if you want to issue court proceedings. You will need to have court papers drawn up which sets out your claim.
D: Normally a letter from your solicitor will do the trick highlighting the case. This can be sorted out of court with direct correspondence. Only a very very few cases actually go to the final court hearing
What type of costs are involved?
N: Well if it doesn’t involve Registered Designs or Patents you can use the IP Small Claims court which is cheaper. It will also depend if you use a lawyer or not. If you don’t use a lawyer it will cost up to £735 for the Court fee to start the claim. If you use a lawyer then it can cost up to £10 000. If you need to use the Intellectual Property Enterprise Court then the cost is up to £50k.
D: That really depends on how long the and the legal letters take to go backwards and forwards that’s why the first letter before action is really important so you got all the evidence is strong case and to put together side which can’t be legally challenged.
JM: The small claims court is the low-hassle way to take legal action for up to £10,000 against a firm or individual. You can represent yourself quite easily and the Citizens Advice Bureau can also offer additional support. I would strongly suggest that you use a solicitor to draft a strong letter at the start. You will then appear serious with a legal team behind you.
Is it true there are seven points of difference?
N: No. Each case is taken on the facts of the case. What a Court looks for is if the essence of the design has been taken. They look to find the intellectual skill and effort a designer has put into the design. There can be one point of difference which defeats a claim or there can be 20 points of difference which make no difference to the Court. Generally if you have a design that someone has set out to copy then you will have a strong case. See the images in the Red Bus Case
What legislation is there to protect designers?
N: There are lots of Acts of Parliament and European Legislation which protects Designer interests. Most of it is covered by the Copyright Designs and Patents Act 1988. If you have registered trade marks or designs then these are covered by the Trade marks Act 1994 and the Registered designs Act 1949. There was an Intellectual Property Act 2014 which brought in Criminal Sanctions for infringement of Registered Designs
I am being followed on Pinterest and Twitter by my competitors should I block them?
N: It is up to you but if they copy you, then you will have proof that they have had access to your designs. They will still be able to look at your designs on your web site, on any sites you sell on, or your stockists sites so blocking them isn’t going to stop them seeing your products, but it will make it easier to prove they know about you.
D: In one word yes
Are any rules or legislation coming into force to protect designer’s rights?
N: There is a lot out there already which covers you. It would be nice if there were criminal sanctions for unregistered design right as there is for copyright. There isn’t anything in the horizon at the moment that isn’t covered already
Can you insure yourself against copyright?
N: You can take out an insurance policy that will pay your legal fees if you are infringed. A©ID have one of the best ones on the market for designers which pays out up to £100k to take legal action
D: Yes. This is an exciting time because there is an insurance that’s just come in called ACID IP Insured. We insure our cars, we insure our homes, we insure our possessions, so why not a business and future?
Everyone loves a story behind a product and for me when I am designing a new ribbon collection, I have usually been inspired by something I’ve seen or experienced. The dogs and cats designs were from actual photos of pets belonging to my friends and family and made in to silhouettes.
Colours that I bring in to a collection can have a story too. The fuschia designs were from a flower I’d photographed whilst on honeymoon in Tahiti, the vibrant dots and stripes from my favourite sweets, Liquorice Allsorts!
Copying is often referred to as underlying form of flattery. To me it is just lazy business behaviour, and I am really pleased to see that several High Street stores have signed up in support of the “Don’t copy it Campaign’ including John Lewis and Selfridges.
My biggest annoyance is participants who come on a gift wrapping workshop, and then turn around and start teaching that same course, with similar descriptions, price and content. They then start drifting on to the same websites and forums using identical keywords and hashtags. I have even had requests from people who want to ‘shadow’ a course for free before starting their own – unbelievable!
20 Years ago when my business was born there was no internet, It took me years of teacher training, researching the old fashioned way, course writing, long hours, unpaid work, sweat and tears to get the workshops off the ground. I think it is now easier than ever to be copied and to be accused of copying in this digital age. Through the years I have kept a log of photos, notes, scrapbooks which not only bring back lots of great memories but acts as my IP proof.
On a final note, the best thing for me is that people fly from all over the world to come on the courses. I am shortly starting my first creative classes in Singapore and the only way to carry on and strive ahead, is to be a leader, and not a follower.
We’d love to hear any comments below. For all other enquiries please email us directly at info@janemeans.co.uk
I think it has to be said Jane, you obviously don’t take prisoners.