I’ve had this topic kicking around in my head for a long time and to be quite honest, I’ve been scared to start this conversation. Mainly because a lot of people, myself included, can have a knee-jerk reaction to the idea of any independent artist being copied or hurt by a larger brand. That reaction can make it difficult to have a balanced and open conversation. The David and Goliath analogies are easy to make when you see a smaller artist up against a larger company, but the stories behind those issues are almost always more complicated than they seem.
This essay isn’t inspired by one person’s story, but rather by a decade of seeing the way these sorts of issues are discussed and handled in the real world of design and retail. I by no means have all the answers to this problem, but I’ve seen and heard the behind-the-scenes details of so many cases of alleged copying that it makes me want to open up the conversation and see if our community can have a real discussion about copying, originality, crediting and trend-setting. They’re all different things and shades of grey exist within each, but I think tackling issues like this and listening to each other will help artists and designers learn to better protect themselves and how we, as supporters of their work, can learn to better support them.
If you’re passionate about independent artists and designers, I hope you’ll read on and join me in a deeper examination of one of the biggest problems facing our community as a whole. xo, grace
*UPDATE: Here is an EXCELLENT guide to what is (and isn’t) fair use when using someone else’s work in your own. There was also a great post on copyright written by creative counsel in response to this post. It is chock-full of valuable info!
A long time ago I got to know a woman who sold patterns. Until I met her, I didn’t even know that was a thing. She went around with a huge trunk full of patterns that were sold to large companies to be used in their upcoming collections. Typically the major companies bought these patterns outright, owning their exclusive right to use for a period of time. The patterns were a mix of things created in-house by designers at her pattern firm and antiques she sourced at European flea markets. I was never 100% clear about who owned those antique patterns and how people recreated and resold them, but it became clear that buying patterns like this was a common occurrence.
I think about that moment in time a lot when I hear from people who are upset or worried about copying. Mainly because for me, it brings up the grey area that can be tough to negotiate- where does credit begin and is there such thing as a truly original design?
For me, almost all art & design is inspired by something that came before or something that’s happening in the current zeitgeist of a community. Does that mean it’s not entitled to be credited or protected? Absolutely not. But does it mean that originality is a topic that may be greyer than we’re comfortable admitting? Yes. So today I want to delve into this issue because I’ve seen so much time, effort and stress go into alleging copying online, versus time that could possibly be put into legal research, fighting companies that truly deserve to be taken to task and educating artists and designers in better ways to protect their work and their livelihoods. Because for me it boils down to this: larger companies aren’t going anywhere. Sure, some brands will come and go, but there will always be large companies that try to profit from indie designers, whether fairly or unfairly. And while it’s important to focus on changing their policies, it’s also important to focus on how to help our community of artists and designers protect themselves and promote and grow their businesses as safely as possible.
This may be the toughest subject to discuss, because I’ve never met an artist, or person, who didn’t think their ideas were 100% original. But having spent time around people who’ve gotten multiple degrees in design, art history and decorative arts, I’ve found that most current trends and styles have their roots and beginnings in a much much earlier time period. That said, there are so many incredible artists and designers who are able to take those concepts, styles, patterns or color palettes and put a modern and distinct spin on them.
So how do those artists protect their concepts and ideas? The first step is knowing where those ideas come from and seeing if they can be copyrighted (here’s how to do that). Is your work based on an original concept, pattern, image or style? Or is it taken from another person’s artwork, existing pattern/fabric or produced by other craftspeople and then sold under a different name? All of these forms of creation exist, and are supported, by our community. But lately it’s felt like the people who get the most upset (and email to ask me to “out” the offending company) are people who fall into that last category. And after seeing hundreds of these cases over the past ten years, I’d love to see less energy spent on upset and rage over non-original or non-credited ideas and more time spent understanding and crediting sources.
There is a current trend in design (which has been popular since the early days of decoration) that favors fabrics and homegoods made by traditional craftspeople in other parts of the world, namely countries in Africa, the Middle East and Asia. I love these sorts of products as much as everyone else, but I rarely see the credit given to the original craftspeople making these products overseas. We see this sort of “who made this and where?” issue happen in big-brand retail all the time, but it’s starting to happen in the indie community to a surprising degree. Too often I receive emails from shop or brand owners, furious that a larger brand has started selling mudcloth pillows “just like theirs”. When the truth is, that fabric/product/item was made by another artist in another country who is not getting credit for their work. True, that work is often done as “work for hire” and not having credit is part of the deal, but for the owner of that shop to claim originality over a pattern or fabric that wasn’t created, designed or imagined by them, rubs me the wrong way. What’s wrong with admitting that your goods are produced by other craftspeople? If you’re paying them fairly, they have fair working conditions and they’re making this work out of their own free will, then there should be no shame in clarifying that you work with an overseas group of makers to produce these pieces and bring them to a different market. Our community has plenty of room for makers of all types and for shops/brands of all types. It’s totally ok if you don’t make everything yourself, just don’t get up in arms if someone else decides to hire their own local makers to do the same thing. People have been traveling to different countries to find/take inspiration from other cultures and their artwork for ages. It’s not a new concept, it’s part of a long-standing (and often complicated/controversial) trend in the decorative arts. Which brings me to the next grey area…
We’ve all seen the way trends seem to pop up and spread like wildfire in today’s online community. One maker does something beautiful, posts it to Instagram and a few weeks later, an entire group of artists decides to try the same thing. Sometimes those resulting products are direct copies and sometimes they’re loosely inspired. Either way, what’s happening here is one maker striking a chord with a community and starting a trend. We’ve seen this happen in floral design (after the success of studios like Saipua and Emily Thompson, it felt like everyone in Brooklyn quit their job to be a florist) and wood working (Ariele Alasko most certainly inspired a new generation of makers to try woodworking, lathe pattern designs and spoon carving) and it’s been tough to draw the line between inspiration and copying. There’s a lot of both out there, but the bottom line is that there is a difference between a 100% new or original idea and popularizing (or re-popularizing) a style or technique. In the case of florists and woodworkers, both of these ideas and styles have existed before, but they’ve been made to feel fresh and modern and exciting by a new group of talented makers. This happens with every generation and it lets us, as fans of design, rediscover something that we may not have seen before and inspires artists of all ages to try something different. But so often it leads to legions of devoted fans attacking other artists who are trying out the same style. I love to see anyone get passionate about supporting an artist they love, but there’s a part of me that would love to see long-past generations of designers and artists come back and show their work and how the tradition has existed in their time, too. That’s never going to happen, so instead I’d love to see both artists and supporters of artists step back and take a moment before attacking each other. In some cases, yes, someone copies someone directly and profits from it. But in some cases, no one can claim to have invented a striped fabric, a plaid chair or a triangular pattern on a something. These basic shapes and patterns are part of mankind’s earliest decorative art traditions and what we’re seeing in our contemporary community is our generation’s take on those established skills and styles. Are they unique and wonderful? Absolutely. But are they so original that they should cause people to threaten others because of inspiration or similarities? I don’t think so.
WHAT’S A DESIGNER TO DO?
So what is a designer to do if something they created sparks a flurry of knock-offs or inspirations? Well, it’s a tough decision and I’d love to hear from designers who have experienced this and what they’ve felt the best doing. Personally, I feel that any designer who wants to grow their business to a much larger scale (which isn’t necessarily everyone’s aim) might want to preserve relationships with larger distributors, brands and companies if possible. That IF is a big IF, but I know of two distinct cases where an indie artist was copied by a MUCH larger brand that resulted in confrontation behind the scenes and an ultimate settlement and then partnership that benefited the designers and their financial success in a major way. Is that everyone’s best choice? No. But if you find yourself in the position of knowing your truly original work was stolen by a huge box store, it’s time to talk to a lawyer. Why? Because going public before you know your legal rights and positioning can be incredibly detrimental in a number of ways. Before we talk about that, let’s talk about where to hire lawyers to help. This pro-bono resource is a great place to start, but you can also contact your local small business chamber or group for low-cost or sliding scale lawyers with experience in your field.
One last quick note: don’t send a pitch or proposal to a store or brand without the entire process documented in writing and with a clause of ownership and copyright included. Too often artists will send custom ideas to a bigger brand, with high res files, and then the brand will “pass” on the ideas and then do them in house. So make sure it’s documented that these designs are yours and that they acknowledge they know that and that they have received them. It won’t guarantee they won’t try to take something, but it will be helpful, should you need to take legal action.
The reason I suggest most artists contact a lawyer before going public is that any claim made in public (social media, newsletters and emails count) and in writing can be used against you in a court of law. And, like I mentioned above, unfortunately, proving that your work is 100% original and that it was copied can be very difficult. It’s not impossible, but knowing your rights and an outside opinion is valuable to do before you put yourself in a position to be counter-sued by someone who may have done something awful to you. It can be hard to hear that a company that may have stolen something from you can turn around and sue you in return, but it’s been done many many times. I hate to see an artist that was wronged have to turn around and defend themselves from a huge lawsuit because they spoke publicly before getting a lawyer involved.
HANDLING THINGS BEHIND THE SCENES
There are purists and realists (and everything in between) in our community and after 10 years, I’ve become a firm realist. I’ve decided that it’s too black and white to label all big companies ‘evil’ and all small artists and designers ‘innocent’. There are often shades of grey in between and if you handle things privately, often they can work out in your favor.
About 6 years ago I knew a talented indie (no agent, no licensing rep) artist who had their very recognizable artwork stolen and used on major national product designs. When that artist found out, they hired a lawyer, contacted the brand directly and, after a few weeks of back and forth, they were given not only a settlement check that allowed them to live comfortably for several years, they were also paid what they WOULD have been paid for that work and they were given an official holiday campaign with the company the next year. Now, does that happen to everyone? No. And would everyone want to work with a company that took something from them? No. But sometimes, working things out with a major company can open doors, in terms of financial support and exposure, that can change a designer’s life in a big way.
In a similar example, I personally recognized a copied design from a well-known pattern designer pop up in the work of a even more well-known designer a few years ago. I was sitting in the press event where the products were being introduced before their retail launch and I said, out loud, “Oh! I didn’t know you guys were collaborating with [Name of designer]. How cool!”. Everyone looked at me and stared in silence and, cut to 2 days later, I was on a phone call with the more well-known product designer who admitted that the other artists’ designs had been referenced in an in-house design session and, somehow, never got changed or altered (or used as inspiration, rather than a template) in the final process. The smaller designer was made aware of what happened and, privately, they agreed to a design fee and the smaller designer profited from the payment and the exposure of what was then launched as a collaboration. Is that a messy path to financial success? Yes. But at the end of the day, sometimes finding a way to make something work, rather than taking something public first, is a good way to make the best of a bad situation.
Now I know not everyone’s case will win and not everyone wants to work with a company that copied them, whether intentionally or not. But as someone who wants to see indie makers, artists and designers do well on a BIG scale, I’ve become inclined to think that it’s worth seeing if you can make headway with these companies, with a lawyer involved, in a way that leads to you being compensated and celebrated for your work (even if it didn’t start that way).
So what if that doesn’t work out? A company claims they didn’t steal and that you have no proof? Well, if you have proof, a lawyer should be able to help you turn that into a settlement of some sort. I know of at least 10 high-profile cases handled this way in the last few years alone with MAJOR companies and it didn’t cost the artist their life savings. Not every case will work out this, in fact a lot won’t, but if you have a good case on your hands, it’s worth pursuing. I’ve found too many artists get scared and frustrated by the amount of work they’ll need to do to defend their work that they just give up. But please don’t give up, this is where your fans and supporters can come in.
WHAT’S A SUPPORTER OF ARTISTS AND DESIGNERS TO DO?
If you see work you feel is copied from an artist or designer you love, do them a favor and send it their way. Take a screenshot first (this will be valuable in proving the case happened, because so often people pull things down before photos or proof can be provided) and send it to the artist and let them handle it on their own. Don’t run and tell the other company or get on your social media accounts to rant. You can be pulled into legal battles with those people (this has happened to me before) and put them in an awkward situation if they choose to let it go or handle things privately.
Another thing you can do? Support them financially if they need help with legal funds. I haven’t seen many artists do this yet, but this happens in the music community a lot and I’m hoping it will spread to ours. People can use private and public funding and crowd-sourcing sites to raise funds needed to take legal action (or to support their daily business costs while they fund a lawsuit) against a company that has copied their work. If you want to support that person, this sort of support goes further toward directly helping them than publicly claiming you’ll “never shop at XYZ store again”.
WHAT’S A STORE TO DO?
First and foremost: STOP STEALING DESIGNS FROM SMALLER ARTISTS. If your business is big enough to afford a legal budget to deal with copying claims, use those funds to hire those artists outright. It doesn’t hurt your brand to work with up and coming designers, it helps it. Plenty of huge international companies are doing collections and collaborations with indie artists, so there’s no reason it can’t be a part of your business plan.
If you DO steal from someone? Make it right. Remove the product and compensate the designer or find a way to rectify the situation financially and through retail exposure for the designer, or in whatever way they agree to with you.
It has never been easier to find amazing and talented artists and designers to work with. Take a moment to check out an indie trade show (Renegade is an excellent place to start) or a site like Etsy and contact people directly about selling their work or collaborating. So many of us know of big stores and brands that troll trade shows with their name tags flipped over and take photos to bring back to corporate for “inspiration”. But we also know that designers and artists are smart and our community is willing to back them up when they’re wronged. So while this may be a rampant issue, I have faith that the rising wave of independent design will be strong enough to take its place alongside (and possibly in collaboration with) larger brands. It may feel like an uphill battle, but I feel ready to help, support and help designers however possible. It’s why we continue to provide free business advice from professionals every Tuesday and why I consult privately with designers on a regular basis to help them navigate and deal with issues like this before they decide to pursue issues of copying.
Not all big companies are ‘evil’. There are real people working at all of them who care about our community. But there are also people working there who don’t care about properly crediting and supporting our community. The same goes for independent artists and designers, sadly. I’ve seen scores of indie designers knocking off other indie designers online and the culture of copying and inspiration is one we could all benefit from spending more time talking about, learning about and finding ways to prevent and deal with in a way that allows the people we love to build successful, sustainable businesses.