The internet has provided a unique selling platform for craftspeople, artists and designers. Whether it is personalised jewellery, one-off paintings or quirky ‘upscaled’ items with a unique twist, sites like Etsy have provided an online ‘gallery’ for people to reach a worldwide audience. However, while this has huge benefits for those who want to get a business up and running, it does have one major drawback – intellectual property violation.
For years, the publishing industry has known about pirate sites that share e-books without the author’s or publisher’s permission. This is basically stealing the small but important amount of royalties that the author would otherwise be paid. It may seem harmless, but just like pirating movies or music, stealing a creative person’s work is just that – theft.
With so much international attention on creative sales platforms, it is inevitable that you are going to get the occasional sneaky thief who hijacks your art and claims it for their own. Sometimes, those thieves are big companies rather than just individuals. What redress do you have when that happens?
Intellectual property – a definition
Any item you put up for sale whether online or otherwise, whether it is a vintage dress or an original watercolour, is regarded as ‘tangible property’. Other information, such as your photographs and descriptions, fall under the category of intellectual property; so basically, everything you put up on the site is covered by copyright and intellectual property laws. However, what you do need to realise is that sites like many of the major sites are international platforms which are governed by US intellectual property law, meaning that you may also need to familiarise yourself with the variations in IP law in other countries.
Copyright law protects original work, including pictorial and graphic designs. It can even cover unique jewellery designs as well as artworks. However, it does not cover what is regarded as ‘common’ design, which is concepts and designs that are widely used.
Trademarks identify a brand through the use of a distinctive logo or the way a brand name is written (or how it sounds), including the type of font and colour of the text. It does not prevent other people from using that font, but would protect you if someone created a brand identity that was almost indistinguishable from your own and if that brand was for the same or similar goods and services.
Trademarks help your customers identify a particular brand and reassures them that the quality of the goods is of a certain standard. You can register your trademark, but be aware that it can take up to four months to complete the process, and there are limits as to what you can and cannot trademark. If you do not register a trademark it will be more difficult and costly to protect your branding.
Custom-made jewellery is a boom industry online, especially with specially-devoted craft marketplaces making it easy to sell your creations. If you do make jewellery, you can apply for design rights to protect the actual design (not the construction). These fall into two categories, unregistered design rights, and registered designs. It will depend on specific country’s legislation, so you will need to check with the relevant Intellectual Property Office for more details. A design is the appearance of a product, including the shape, texture, colour, the materials you use, and more obscure aspects such as the contours and ornamentation. As the creator, you own the design rights, unless a piece was commissioned in which case the design rights belong to the person who commissioned the piece.
Design rights exist independently of copyright and are granted automatically. You can register a design with the Intellectual Property Office if you want to make sure you can prove that a design is yours. Unregistered design rights last for three years in the EU, and 10 years in the UK.
A registered design is a design that has been registered with the Intellectual Property Office in the UK and provides creatives with a higher level of protection against people copying and reproducing the design for up to 25 years in the UK. Bear in mind that you will need apply for a registered design, as it’s not automatically granted and may be subject to investigation by the IP Office.
When you are designing an item, whatever that may be, it is a good consideration to keep detailed notes along with date stamps to show when the design was created. The designer’s name should also be imprinted on the design. This is commonplace in many industries, such as in the design and manufacturing of garments.
The difference between ‘inspiration’ and stealing
Often, creatives who have had their work copied by others have been told that their original piece ‘inspired’ the person copying it, and that they should take it as a compliment rather than feel threatened by it. Whether it is a blatant rip-off of an original design or if certain elements have been ‘incorporated’ into a design that looks very similar, it can be very difficult to prove that someone has actively stolen your design.
All you can do in this instance is take comparison photos of your original work and the ‘copy’ and submit them to the site’s administrators for judgement. If you can prove that your piece was registered on a site well before the copy popped up, then there is a good chance the administrators will find in your favour and take the copy down.
Is it a lost cause?
For small artisans, having a big company or manufacturer come along and effectively steal their idea can be incredibly disheartening. There is also very little you can do to stop them hijacking your design and then mass-producing poor-quality copies by the tens of thousands for a fraction of the price of an original. Any action taken can end up being futile and costly if not done promptly and properly.
If your brand is blatantly being stolen then you do need to talk to a solicitor specialising in copyright and intellectual property. Be aware that it can be incredibly expensive to pursue legal action, and if the perpetrator is on the other side of the world then you could find it almost impossible to stop them, regardless of whether or not they are flouting the intellectual property laws in your country.