Imitation is the sincerest form of flattery – and outright, shameless copying the most annoying. From the recent pillaging by Zara of Tuesday Bassen’s designs, Penguin nicking Miriam Elia’s Ladybird spoofs and Topman stealing Kate Moross’ tribal patterns, there’s a ridiculous, depressingly common amount of ripping off in the design and retail industries.
Can you imagine walking unsuspecting through a shop or scrolling down an online store like Zazzle, and spotting something weirdly, gut-wrenchingly familiar? Unfortunately, this kind of situation doesn’t seem to be going anywhere, especially if perpetrators have anything to do with it.
None of this is far-fetched. In July this year, it was revealed that Zara was blatantly copying independent artist Tuesday Bassen’s designs (here’s the full collection of stolen work by Zara from various artists ). Zara’s lawyer’s went for the ol’ ‘we’re big, you’re small approach’, as shown in the letter below. They claimed that, as Tuesday's fans constituted a tiny part of their website visitors, that Tuesday was irrelevant.
Zara's bullying follows many cases like it. In 2010, illustrator Hidden Eloise went public with claims that a product range stocked by stationery chain Paperchase closely resembled her own design, He Says He Can Hear the Forest Whisper. The retailer said the designs had been provided by an outside agency - and, eventually, accepted the design was copied.
In 2012, designer Kate Moross - yep, that same designer who hides her actual name within her designs - took to Twitter to claim that a sweater sold by Topman sported a tribal motif that greatly resembled a design of hers. The sweater was hastily withdrawn and the retailer announced: “Topman takes very seriously the protection of its own intellectual property rights and accordingly respects the rights of others... This matter has now been resolved with Ms. Moross to the mutual satisfaction of both parties.”
Shocking, right? Unfortunately, these are only the high-profile cases. The blog You Thought We Wouldn’t Notice highlights countless examples of creatives posting what they believe are knock-offs of their work, adapted for garments, posters, apps and almost any other purpose imaginable. The works run the gamut from strong stylistic similarities to straight copy-and-paste jobs – although in other cases it’s easy to see how the designs just look like each other by coincidence.
How can you protect your work from being plagiarised?
It’s natural to want to display your portfolio on your website or Facebook page, but it is important to be smart about it, according to Matthew Shearer, the Association of Illustrators Membership Manager, who advises members on pricing, ethics, contracts, copyright and so on.
Anything you upload to any website should be set to 72dpi. This file size will look fine on the web, but it won’t be stored as a big enough file to be used in any substantial way for tracing or other plagiarism methods. Even if someone were to pull the image off the website, it wouldn’t be of a high enough quality for any kind of print or commercial use, Matthew said in an interview with Digital Arts.
Also, '© [Your Name] 2014' should be visible on every web page, Matthew said. Ideally, this phrase should be in the header and footer of your website on every single page. Cover the bases on social media as well: put your copyright in your 'about' page on Facebook, in your Twitter bio, and so on. If you want to put a piece of work on Tumblr or Pinterest, a watermark is recommended in order to make sure the source (you) stays attached to the image.
Although there are no fail-safe ways to make sure no one tries to steal your work besides never showing it to anyone, one clever method artist Kate Moross has employed to ward off copiers is to subtly work her name into many of her designs (below) “so if it is reprinted I can laugh at the lazy thief,” she wrote in her book Make Your Own Luck. Though Kate’s work was still plagiarised (sigh), it’s not hard to prove - and, thankfully, Topman removed te jumped within hours.
Increasing the circulation of your work – via Facebook, blogs, or magazine prints, for example – does not legally erode your copyrights. Whilst this gives your work more exposure and therefore more opportunity to be ripped off, it can also serve as a protection in case you ever need to prove that you created a piece of art when you say you did – just look at the timestamp on the Facebook upload, for example.
What should you do if you discover your work has been copied?
Whether it’s a fellow Etsy artist ripping off your work or a major corporation doing it, the first step to take is almost always the same: send a cease and desist letter to the infringer.
A cease and desist is a fierce letter or email informing the receiver that they are in breach of your copyright and suggesting that they remove the item from their portfolio or store and destroy all copies. This is often an effective scare tactic and a relatively painless way of dealing with copyright infringement issues – no lawyers, no trial, no drama.
In many cases, though, you may feel that drama is indeed due. Depending on how you look at it, simply asking an infringer to delete the work and pretend it never happened could be seen as letting them off the hook for a truly malicious act. In that case, one option is to contact the artist directly and, in non-legal terms, tell them that you know what’s going on and that what they are doing is wrong.
Kate Moross advises you to “be headstrong and ballsy” in your confrontations, but also do it with love.
“In most cases, the person that is copying you will be a big fan, so be gentle. It would be sad to turn your biggest fan against you,” Kate wrote. “It’s most likely that they will take note of your comments and try to come up with some new styles of their own.”
However, confrontations do not always go that smoothly. Illustrator Rod Hunt personally found this out when he discovered a design student had blatantly copied his book cover illustration of Change the World 9 to 5 (below) and was promoting it as his own original work. When Rod confronted the student, he seemed oblivious to the fact that his plagiarism could even be an issue.
“I basically gave him a very matter-of-fact education about plagiarism and copyright infringement… and he came back and said: ‘Oh, I quite often take found compositions and create work from it,’” said Rod. “And it’s like, haven’t they taught you anything at art college about copyright and art plagiarism?”
In fact, some schools inadvertently let students know that the opposite is okay. Copying artistic work in order to learn illustrative techniques is an important and virtually unavoidable part of the art education process and has been going on for decades.
Distinguishing line between legal and illegal seems fairly obvious: you can attempt to replicate Van Gogh’s 'Café Terrace at Night' as part of an educational class assignment, but you cannot put it in your portfolio and try to pass it off as your own original work (especially when copying lesser-known artists). But in practice the lines are blurrier: what’s the difference between inspiration and plagiarism? Either ignorantly or maliciously, some students cross that line and plagiarise work regularly.
Students are obviously not exempt from copyright infringement laws and can find themselves in a lot trouble. In 2009, a Falmouth University graduate student was caught plagiarising dozens of pieces line for line from artist Lauren Nassef. The student won the Texprint award in 2009 for this stolen work with a cash prize of £750 and the opportunity to exhibit at two trade shows in Hong Kong and Paris where she could take orders for the stolen designs.
Once she was outed as a fraud, the student took down her website and had her award and exhibitions revoked. Though the issue apparently never went to court, the student was heavily shamed on the Internet via sites like You Thought We Wouldn’t Notice and other artists’ blogs.
Thankfully, you can get legal help striking back if your work is used without permission. For example, the British government’s small claims court - and any equivalent in other countries - makes legal action a realistic option for freelancers who may previously have struggled to afford lawyer’s fees and the risk of a full-blown court case
After all, if you created a design, the law will be on your side (unless you’ve assigned copyright to someone else, such as your employer or client). This entitles you to control how your work is used and to be acknowledged as its creator.
An image doesn’t have to be an exact copy to infringe copyright. “The test is whether a substantial part has been used. There’s no set percentage test,” says Robert Lands, an intellectual property lawyer at Finers Stephens Innocent. “It’s about quality, not quantity. So it could be just a small part of the image... it applies even if they have adapted or added things, or changed the colours.”
It’s often possible to resolve such issues without heading into legal terrain.
“Sometimes it will be ignorance – it’s worth a softly-softly approach and explain they require a licence,” says Derek Brazell, of the Association of Illustrators. If it’s a genuine misappropriation of work, they might confess.” He recommends a “businesslike but friendly” letter as a first step.
“If you do get in touch, it’s important not to send them an invoice... When you send an invoice you’re limiting your potential damages. You don’t know how many T-shirts they might have sold,” urges Robert“Explain that it’s your image and tell them to stop using it. Ask them to tell you exactly what they’ve done with it and ask what they propose to do to make amends – I’d always put it in their court first."
“You could either request the sum you’d expect for a licence, or add an additional sum for distress, but it’s sensible to go in at something that’s affordable for the organisation,” recommends Derek. Striking such a deal often means accepting a confidentiality agreement too.
If you do enter into negotiations, state clearly that this is “without prejudice”, advises Robert – this keeps your compensation options open if you do end up in court Treat the temptation to lash out online with caution. “If you publicise the dispute before negotiation, you’ve blown your advantage. Companies want to protect their reputation, which can really help negotiations.”
“The threat of letting people know about it is quite powerful,” agrees Derek. “Although you need to be very sure what you say is true.”
Wrongly accusing someone of stealing your work could “massively backfire” and even get you sued for defamation, Robert cautions.
Are lawsuits even worth it?
If you do decide to go the legal route, be prepared to prove it. Line up your work in Photoshop with the infringing material to prove that the pieces are the same. Bring proof of when you created the art, such as progress pictures you took with your camera or uploaded onto social media. When going against a big company, the payoff could be good because they potentially will have made a lot of money off of your design.
However, you absolutely must weigh the slight possibility of a big payoff against the downsides of emotional and financial turmoil in the meantime – or permanently, if you lose the case. Lawsuits are definitely not the right path for everyone and it would not be wise to let yourself go bankrupt over a minor dispute. The financial burden of a copyright lawsuit can really drain everything you have, as Seattle-based design company Modern Dog has realised over the past few years. The company had to sell a house in order to fund a lawsuit against Disney and Target for breaching copyright law with a T-shirt.
The suit alleges that Disney and Target took the endpapers of the book Modern Dog: 20 Years of Poster Art and used 26 of the dog illustrations on apparel sold and distributed as part of a marketing campaign for the movie Sharpay’s Fabulous Adventure. (Seattle Copyright Watch has a thorough rundown of the initial complaint filed on October 31, 2011.)
“Initially we wanted to set the record straight, as we naively thought our case would be settled in a few weeks,” Modern Dog co-founder Robynne Raye told Print Mag in December 2012. “But copyright enforcement doesn’t work like that; in fact, it is very difficult for an individual or small company to litigate, due to the costs and time associated with a lawsuit. Unfortunately, what happens is that most creators just let it go, and I can understand why. In the end, it seems that the only entities that benefit by copyright are the large corporations that can afford to litigate.”
The studio was able to raise over $40,000 to go toward its growing legal fees via a crowdsourcing campaign, but even that amount of money in no way covered all of its expenses. (After a three-year court battle, Modern Dog and the defendants reached a settlement in January 2014.) If that is not a battle you are willing to take on, as painful as it might be, it is probably best just to let it go and somehow try to view the copying as a compliment.
On a smaller scale, even minor disputes can run you dry in court.
“If 700 T-shirts were printed with your design on them, say, you would only be entitled to a small percentage of the cost price of each shirt,” Kate wrote, “so it’s conceivable that a settlement payment could actually work out as being less than a lawyer would cost you.” A good lawyer will tell you honestly whether their fee would be more than the potential settlement.
An alternative to legal advice on these matters is to go to the AOI to ask for copyright advice. (Rod served as Chairman of the AOI from August 2009 to March 2012.) They can give an expert opinion on whether a piece of work is infringing copyright or not, advise you on how to approach the company, and recommend whether or not to pursue the issue beyond a cease and desist letter.
“[Some copyright lawyers cost] £200 an hour,” Rod said. “Meanwhile, your membership for the AOI is £150 a year for unlimited free advice."
Design plagiarism is a complicated legal matter and can be an emotionally disheartening and a financially devastating experience. Knowing your rights is an important first step of protecting your artistic endeavors and making sure you always get credit where credit is due.
What’s the difference between influence and plagiarism?
Just because someone had the same idea as you does not necessarily mean it is copyright infringement. Plagiarism is illegal; influence and coincidence are not.
“There is no copyright in an idea or style. There’s only copyright in the composition of an image – how it’s laid out, the way it’s drawn and the way it’s designed,” Matthew said. (This is also an important thing to keep in mind if you yourself are accused of infringing another artist’s copyright.)
If someone’s work looks like your work but isn’t an exact copy, there’s not much you can do about it. Even if you are sure they referenced your work in some capacity, that is easily disputable.
However, “a small but still key part of the work can still be a substantial part of the work,” Matthew pointed out. “There is no set percentage amount that can be referenced or can be copied for something to be a new work and not infringe copyright,” he said, but rather it is up to the discretion of the judge.
But there are wins among the losses - and the more fashion giants' flippant dismissal of copyright claims fails to work, the easier it will be for the next generation of independent artists and designer to get what's theirs.