It seems the Internet is abuzz these days with stories of copycatting. The big story, in case you missed it, is that jewelry artist tru.che shared a post on Tumblr about how Urban Outfitters had ripped off her pendant designs. This sent of a firestorm of tweets, comments, and support for tru.che, as well as some pretty horrible comments directed at UO.
The plot thickened when Regretsy, known for putting the smackdown on copycatting, shared a post highlighting multiple artists selling similar designs, some before tru.che herself. Clearly, there is copying going on, but there is no clear indicator of who originated the designs in question. The post concludes:
“The question, for me at least, is who did they steal it from? And if we don’t know that much, how do we know it’s really been stolen at all?”
As I was wading through all of these discussions, I also got an interesting link from a Twitter follower who shared that his jewelry designs were being “knocked off by the Chinese.”
Interesting to me that both of these copycat issues are jewelry, given that, with jewelry’s relationship to fashion, it actually has very little protection under US intellectual property law.
Before I explain what I mean by that, let me state for the record that I abhor copying. Nothing gets me angrier than when I see one designer copying the designs of someone else. But I’m also smart enough to understand that just because a design appears similar doesn’t mean it was copied. I often get emails from well-meaning friends sharing a link to an artist they believe is copying me. But I don’t hold a monopoly on leaf shapes. Nobody does.
But back to the crux of the issue. What is fairly startling to me is that legally, as far as I can tell, Urban Outfitters did nothing wrong. (I’m referring specifically to the design copying. Tru.che also states that UO stole some of her marketing copy, which could have other ramifications.) Yet, people are demanding that tru.che be compensating for the stealing of her design. All this just brings to light how little most people know about intellectual property protection. (Also, please note that I am not a lawyer, so there are plenty of people who know way more about IP law than me. But I’ve done a fair amount of research, and think I’ve got a pretty good handle on the broad concepts.)
So I’d like to set the record straight on something. You can’t copyright an idea and you can’t copyright a useful object.
Copyright is only for works of artistic expression. A while your necklace or mug might be an expression of your artistic vision, the US government is more likely to see it as a useful object and therefore not grant copyright protection.
This is why there is so much blatant copying in the fashion industry. Legally, it’s not wrong.
An article on the Freakonomics blog explains:
“American law does not protect most fashion designs. Copyright law views fashion designs not primarily as artistic works, but rather as “useful articles,” and useful things are not granted copyright protection. This rule reflects the fact that useful things are supposed to be the domain of patent law. But clothing designs virtually never qualify for patent protection, because they are almost never “novel” – i.e., truly new – in the way patent law requires.”
The same could be said for jewelry. If it’s a commercially-available, wearable piece, it’s probably not covered by copyright law. And unless you’ve invented some entirely new clasp or mechanism, it’s probably not covered under patent law.
Now, I’m sure I just scared a lot of people who make functional work into worrying about not being able to do anything if their designs are copied. But I wouldn’t worry about it.
For starters, if you really want legal protection, there are design patents for a really novel design and trademarks and trade dress to protect your branding.
But the real reason you shouldn’t worry about it (and why I don’t) is that there are more important things to worry about. Your biggest concern shouldn’t be getting your ideas stolen, it should be obscurity.
It’s far more likely that most people won’t know who you are than that your designs will be stolen.
I want to reach the most people I can with my designs, even if that means putting my work at a greater risk of being copied.
If you’re really concerned about being copied, the best thing you can do is be innovative.
Use different materials, processes, or techniques than other people in your field. Make your work more complicated. (I have a friend and teacher who always says any design you create for sale should take at least 5 steps to make. This minimizes the chance that someone can easily copy it.) Get your inspiration outside the design and craft worlds.
None of these things can completely keep you from getting copied. But they will help your customers see you as an innovator. Someone whose work is worth paying more for. And someone to stick with even if your idea does get copied.
I won’t say who I think is right who wrong in the UO/tru.che debate, mostly because I haven’t really come to a conclusion myself. I will say that I think tru.che would have a hard time getting an IP lawyer to take her case. But it might not matter because she seems to be winning in the court of public opinion.
As someone whose had their designs blatantly copied in the past (I had an overseas company make a mold of one of my earrings) I understand the frustration and anger that comes when you realize you’ve had your designs stolen. But I also understand that, regardless of whether I agree with them or not, there are IP laws and procedures in place that mean I have to look at situations like this not just from an emotional standpoint, but from a business and financial one as well.
And I think that’s the main point I want to make here. Ultimately, you can’t spend time worry that a big corporation (or another designer) is going to rip you off. The best thing you can do is keep making your own designs, building your skills, innovating, and doing what’s best for you and your biz.
Ok, I’m sure you have comments. Let’s hear ’em.
You make a really great point and this actually reminds me of a designer I heard speak at a craft show last year. I can’t remember his name but when asked how he dealt with companies copying his work his solution was to keep innovating and being the ‘First’ one to create. Once copies start to come out he stops making it and starts on the next thing. I’m not suggesting that everyone can do that easily but he makes an interesting point.
Oh, that totally sounds familiar but can’t think who it was!!! I agree though…it’s like taking the high road and just blazing the trail. Everyone else is left in the dust…
Jewelry designs can be copyrighted…”pictorial, graphic, and sculptural works”… but the burden is on proving that it is “original” – whatever that means. I believe alternatively you can file a design patent as well, but it is costly and only works for something that is truly original – again, I’m not sure how you prove that. You might be paying for a lot of lawyer time…
Since the law changes often and is subject to great interpretation, I think it’s best to get a professional who specializes in IP… they know what to do. Oftentimes, I don’t think people realize it’s not about what we think is the right thing or just thing…it’s whatever works under the law that matters – if you are actually wanting to pursue infringement cases.
I also think people don’t realize what you can or cannot copyright…for example, techniques cannot be copyrighted! Not even the titles or names of pieces. Goes into other areas such as trademarking and registering a name…but again, more conditions to oblige in those cases.
It can be really overwhelming and find myself just holding my head and saying, “please, no more…” I think your last paragraph sums it up. Let’s stop wasting time worrying or ranting over this stuff. Go out and create instead!
linda – there are so many gray areas which is what makes IP law so complicated but also so interesting. fashion isn’t protected by copyright, but performance art is. but there is some one-of-a-kind fashion that is almost like performance art, so where is the line? and yes, certainly some jewelry design can be copyrighted, but I think you’d be hard pressed to find a judge who would hold up a copyright for a really commercial piece of jewelry that isn’t very innovative.
i think your point is right on, if you have concern, you should talk to a lawyer that specializes in IP
That was my understanding at well. The functional aspects of items can’t be copyright but the artistic aspects can. This is why some designers have been able to successfully bring suit over copying of fabric prints, the fabric and the clothing can’t be copyrighted but the print can because it’s a graphic work so long as the print is original enough. For the same reason a t-shirt can’t be copyrighted but if an artist had one of their original paintings photographed and then printed on the t-shirt that would be protected under copyright.
The problem with tru.che’s work is in the originality of the design. I’m not sure the designs are an original enough concept to be covered by copyright. In fact even whoever originally came up with the idea probably wouldn’t have a claim because putting a heart on the outline of a US state probably isn’t enough for copyright protection no matter what the medium was.
Megan, thanks as always for the thoughtful response.
What really troubled me about this case was the knee-jerk name calling that started immediately after this story broke. The language was troubling at best and reflects a deeper problem.
I believe that deeper problem begins with unnecessary “us vs them” mentality. Name calling and ugly speech hint that UO is “out to get us.” And that’s as far from the truth as is possible.
What I really think is going on is a deep sense of inferiority amongst artists & crafters. And that’s a personal problem, something that can only be dealt with in that person’s business and psyche. Until that problem is dealt with, crafters & artists won’t be able to help themselves.
I love this article. I was accused of copyrighting a big designer- in my own city! I’ve been sewing for years on machine, making new plush creatures, hats, accessories and more everyday. I took a lesson from a friend, who designs plushes to, and a year after that, using my ideas and some of his sewing lessons, and many many other ways of inspiration, I had new plushes coming out every week! One week, they got attacked by an artist here in Baltimore for being a copy, and that sent me down hill.
But this article brought me up 🙂 So did Danielle’s comment, Because I just kept moving on, forget that designer and her plushes. Whats mine is mine, I’ll beat her one day because I’ll just worry about myself 😉 Thanks for the article! It helped me out.
Brann
I’m really glad you wrote this piece. I did see that article and my first reaction was anger that this crafter had been ripped off. I’m one of those people who dislikes big chain stores and mass produced items, but to see how mean spirited people are, who aren’t even involved in the story was shocking, but not really surprising.
I think, especially in the digital age, you need to really look into all sides of a story, not just take everything you read at face value.
And the best thing to do when copied (and it has happened to my illustrations) is to be flattered and come back with something even better than the last one so you’re still better than he who copied you 😉
Thanks for all your fantastic posts
As always Megan wonderful post. I recently read the quote somewhere not sure where “no idea is original” It really made me think. Even if you think you are the first to come up with an idea chances are your not. Inspiration comes from everywhere copycats intentional or not will always be out there. As an artist it is important to keep evolving, changing and improving your product to always be the best and stand apart. Take pandora for example. How many times has that been knocked off? But think about it, probably hundreds of designers came up with the idea before them. It is almost a chicken before the egg mentality. It really is all a gray area. True artists know the difference between inspiration and copying, if you don’t know what side of the line you are on take a step back and rework your design until you are sure it is “your” design and could never be mistaken as anothers. As you said it is more important to worry about yourself and getting your product out there, than spending time worrying about being copied.
Thanks for sharing Megan!
Too true, Megan. I don’t have the copyright to a circle or a square, but some of my distinctive style has been copied in the past by someone who appeared to be my friend. It only bothered me because people kept telling me “This girl is copying you” – in fact, it sent me reeling for over a year. I finally sent her an angry email and she denied it, but I felt better having called her out. The thing is, her heart wasn’t in it because they weren’t her ideas. And this year she gave it all up to do something else completely and admitted to a mutual friend that she sorta kinda copied my style… a little. Mmm hmmm.
This saga dragged on for several years, and I eventually just had to let it go as best as I could. We can’t waste our time being annoyed by other people because we think they’re out to get us – it’s exhausting and doesn’t make us feel any better. I do exactly what you said, I keep innovating and trying new techniques, try to be unique and just be myself and my brand.
When a well-known designer started “copying” a lesser known designer friend of mine, people kept telling them “So and so copied you!!” They would just laugh and say “It’s fine – we’re not worried about it. There’s room for us all”. What a great attitude!
“If you’re really concerned about being copied, the best thing you can do is be innovative.”
This phrase just really caught my eye on facebook..how it says it all!!
Megan ..you have such talent in getting right to the point. summing up in a few poignant words..that is very important when dealing with artists..as myself…we tend to get ‘wordy’ and wander off the subject like butterflies..
My problem is I love creating and get very bored with the production part (so necessary for a successful business, I know)
I have been copied several times and didn’t want to admit it ..most were saying ..’how awful!’ but was subconsciously flattered and relieved! Now I could’ flit’ on to something new..:)
I do believe in ‘nothing new under the sun’ ..up to a point, of course, but really I think no one can claim to create something totally new without influences from someone, something..
Thanks for your great insights..
Mary Anne
Is copyright really a good thing? Check with Nina Paley and others for some vigorous debate on the topic: http://questioncopyright.org/
I agree with you Megan and I have said much the same thing before in forums and on blogs, but you say it much more eloquently.
I also agree with Tara. I am always a bit disheartened by the knee-jerk reaction of everyone jumping on board without seemingly taking the time to consider the matter from various angles. And while I agree with the idea of an inferiority complex, I think also the reverse is true. People thinking too highly of themselves. As if they are the ONLY one capable of designing a certain thing. As if they are the BIG fish in the pond, when in reality, there are many many many big fish who just swim silently along and we may not know about them. The internet has fostered this idea that “we are all there is” – what we see online encompasses our reality. The truth is, there are MANY artists and entrepreneurs working away and forging ahead that we may never know about. They are doing their thing, surviving, succeeding where they are.
I have seen too many times to count where an artist presents a finished piece and then someone else says ‘wow, I’m working on something almost exactly the same! let me show you’ and they turn around and pull it out to show. And they truly already had it in progress as evidenced by the fact that they can show it within a time-frame that would be incongruous with them copying it after just having seen it.
Like everyone else, I don’t like direct copying, it creates a homogeneous environment. Ick. I do think though that there is often a natural progression in creating. We draw on our surroundings – our environment, what we see, hear, taste, smell – we take it all in, digest it, and then produce. The best advice I have found is to keep blazing your own trail knowing that others will come walk behind (BEHIND) and hopefully they will eventually branch off into new trails in new directions, and eventually the trails get paved and divided again and there are highways and byways and bridges and roads going in all different directions, dissecting, converging, and going forth again.
Janice
http://doxallodesigns.blogspot.com
Megan, great post. I was one of those knee-jerk reactors when the news came out last week but I’ve had the sense to do a bit of research on my own & read other people’s takes on the situation. I’m constantly worrying about being accused of copying other people’s work – most of my embroidery involved botanical shapes. A rose looks like a rose, a leaf looks like a leaf… there isn’t much room for creativity. But when someone puts their work together in the same way, with the exact same materials, that’s cause for concern.
My mantra on what I’ve perceived as copying of my work (unless its an exact replica of surface art) has always been “run run run just as fast as I can… Can’t catch me…). In other words, I keep designing and move on to my next “brilliant idea”.
Megan, I really appreciate this post. I have seen some of the recent “dialogue” about Urban Outfitters, which was all from the same side of the issue, and I had some of my own thoughts to the contrary. I agree with what you have said here!
First, I noticed that the handmade piece looked visibly better. Handmade will most likely always be better than anything mass-produced. I LOVE your thoughts on the amount of steps it should take to make something before you try to sell it- brilliant! In addition to the complexity of handmade craftsmanship, if you are continually building new products with new materials, then you shouldn’t have too much to worry about with copying. When you only make one thing in one simple way…you set yourself up for imitation.
Last, if you build a loyal customer base and focus on handmade customer service that compliments your handmade items, your business will continue. I have to believe that there will always be a demand for handmade items and personal connection. In fact, that need seems to be flourishing in a time of troubled economies.
Thank you for this thought-provoking and poignant post!
Erin, I agree with you about the handmade piece looking better. Based on the pictures at least, the Urban Outfitters piece does look cheap in comparison. And I suspect that someone who was looking to buy from tru.che probably wouldn’t turn around a buy a similar piece from Urban Outfitters, and someone who shops at Urban Outfitters would likely not have tru.che on their radar. It’s highly unlikely that one is actually stealing business from the other, and it’s not as if either of them is the first to come up with this design concept.
The reality is that creativity doesn’t happen in a vacuum. Everything that everyone has ever done has been influenced or inspired by something they’re seen somewhere else, and as others have pointed out it’s not even that uncommon for two artists to come up with a similar design completely independant of one another (but perhaps influenced by the same thing?). If we put too much pressure on ourselves to do something that is 100% unique and unlike anything anyone’s done before, we’d never make anything.
Great post Megan!
I think by the nature of what we do and are as innovators and creators we are bound to have others take heavy inspiration from or flat out copy our work. Honestly I feel like any of my friends who have successful handmade businesses have had the products copied by others. Great ideas and products don’t stay secret for too long and it is the nature of the handmade business world (and the business world at large). Having gone down the road of legally protecting my own products and working directly with a IP attorney I found it is extremely difficult and almost impossible to have any legal protection on products like jewelry. I think that the first discovery of being copied stings the most, but once you move past that and realize the only protection from this is the keep innovating and creating it seems to sting less as it happens and becomes part of “the game of business”.
Has anyone considered that this is actually great for tru.che. Don’t get me wrong, I don’t agree with copying anymore than anyone else but how many people had heard of tru.che before this?
Whether intentionally or not, this incident has been a stepping stone for her to get a ton of publicity and, as people have mentioned, she probably won’t be losing any business to Urban Outfitters anyway.
Yes, Claire, I agree. I heard she got something like 1,000 orders in the first few days after the story came out. This is great for her business.
Really great point. Although I am a little bit familiar with copyright law and it’s lack of protection in the fashion industry, I still hadn’t thought about this case in that way. What is still scary for independent designers, though, is the inevitability that people will choose an inexpensive, widely-distribued mass-produced copy (ie, from Urban Outfitters) over an artisan piece that is likely more expensive and less accessible. Clearly, that hurts small businesses even if they gain exposure through the situation. In this particular case it gets so tricky… there are ideas and themes that float around periodically that probably were copied or inspired by ideas and themes that have been around for ages. Who is the original creator? It’s usually pretty hard to say. A tough situation, but a great post on it 🙂
Totally agree with all this, Megan. I think a lot of the craft community worries about copying too much and their own brand awareness not enough.
I’m one of those people with a really really conservative definition of copying. There isn’t much new under the sun and unless something is nearly identical and very unique I chalk it up to being an idea that wasn’t all that tough to come up with and let it go.
Worrying about building your own brand awareness is a better use of your time and a better defense for your IP. The more known you are, the more people associate what you do with you and choose to shop with you over competitors offering something similar.
Very helpful stuff. I shared it on my FB page and will also put it on my fan page. Thank you!
I like your post, Megan. (I’ve been reading your blog for a little while, but haven’t posted until now. Hi!)
I think it’s fairly common for jewelry designers to come up with extremely similar designs independently of one another, and it’s even more common when there are shared sources of inspiration floating around. In the tru.che case, I agree that the idea isn’t copyrightable and that it’s far from clear who had the idea in the first place. But I do think there was copying going on, based on the exact look of the pieces, the styling, and the accompanying copy. It’s not illegal, but it is rude. It breaks the designer honor code.
Not too long ago, I stumbled upon a couple of pieces of jewelry that are pretty similar to some of mine—which was startling, although it shouldn’t have been. I created them by fiddling around on my own, and on some level I thought they were more original than they really are.
It got me thinking and I blogged about it, as well as the general issue of Originality and Creative Overlap: http://viewfromrighthere.blogspot.com/2011/05/originality-and-creative-overlap.html. It relates, I promise. 🙂
I have recently had an issue with a new etsy shop copying a lot from my offerings on etsy. I am working to stop her from continuing this because the way I see it, the more you let small businesses go on stealing your copyrights, the more likely a larger business is going to look at it as free game. If tru.che was being copied (or she copied someone else) on a smaller scale to begin with, that issue should have been taken care of a long time ago if the originator wanted to protect their copyrighted material. If what you are doing is not extremely original then it is probably not worth chasing down all the similar products that show up, but if what you are doing is an evolved, specific, expression of YOU, make sure to protect it. In the digital age there is no question who the copyright owner is. On Etsy, all you need to do is look up the sold orders of a shop and look at the oldest dated invoice for a product.