Charles Caleb Colton is a dirty liar, who obviously never had an idea blatantly stolen or maybe he did, and is just a better person than me, I don't know his life! But this quote is always thrown around when someone broaches the subject of dealing with copy cats, and it is not helpful- at all.It's one of the most frustrating feelings: you're browsing the inter-webs and suddenly you see a product that is eerily similar to one of your products. This is infuriating on so many levels; seeing an idea you have spent years prototyping, testing, refining, and polishing, now being offered by someone else, in an inevitably crappier version.
While my initial reaction is always, "BURN WITH FIRE" level rage (I might have a bit of a temper), dealing with this problem in a professional way is always the smarter choice, I urge you NOT to knee-jerk respond the second you see the copier, you will regret that later.
My most recent experience with this, has been on Instagram. This is the blessing and the curse that accompanies the reach social media has given small business owners and artists. Your work has the potential to reach thousands of new eyes, and unfortunately a side effect of this can be that people recognize the potential of your ideas and want to capitalize.
It started with a person engaging with me, another maker, but a maker outside my area of focus. This individual would comment on photos, ask questions, and I happily answered and was helpful to another maker in the community. I want to remain open to other makers, as a super introvert who works at home, alone, from a quiet studio, it is nice to have a sense of community, even if it is online! Well, I am sure you understand where this is going, a few weeks ago I notice this person has acquired similar materials to those I have posted in my studio shots, and now, straight-up rip offs, right down to the way I make my hangtags for my products. (eye roll emoji for days)
Removing myself from social media is not an option, nor is not sharing process photos. I want to engage with my customers at every level of my operation, I want you to see my practice, my space; as a consumer it is important for me to understand where and how my items are being made, and I want to offer my customers a transparent view into my approach to making.
OH this one hurts and is hard as hell, but then it is also the most professional approach you can take. Do not, I repeat, DO NOT, call this person out on social media, in makers groups, or their website. Your knee-jerk reaction is going to make you want to shout from the rooftops, but this will only serve to drive more traffic to this person, and makes you look petty.
Try to remember that you are the architect here, you have the experience and the years of prototyping that brought you to this place in your design. Time to step it up, and improve your idea, leaving this person behind the curve in your product market.
The second I see someone posting something similar to my work, I block them on social media. I understand this can seem harsh, but I want to limit their exposure to my work and my process, and hopefully stifle their copying. Whether the copying is happening consciously or subconsciously - if I remove myself from their radar, I have found they quickly transition on to someone else's style.
This step is about self preservation, and guarding your ideas without limiting your reach to the greater visual consumer world.
(*I am not a lawyer, I am a painter; this is just the accumulation of my research and knowledge acquired while in art school. Always seek real legal counsel if you have questions about your rights - often law schools offer pro bono hours for questions, contact your local college for details!)
1. Proof of Concept
2. Proof of Access
You need to reasonably prove that this person has access to your concepts. Again, if the theft is happening via access to images on social media, this is a rather simple step. If it is happening within retail settings it can be a little more difficult, but not impossible.
3. Qualification of Copying
The web is filled with rumors about 51% change to an idea equates not a copy, this is a myth. In the eyes of the law, "derivative work" or a ripoff of your core idea, is still idea theft. Courts base their designation of derivative work based off the likely opinion of a "reasonable observer". If the average person would say "hey, that looks just like your work", even if the colors are slightly different, or the size is bigger/smaller, this is still idea theft. You can test this fairly easily by sending copies to a friend and asking their opinion.
4. Cease and Desist Letter
If you can check off the top three bullets easily, it might be time to send a Cease and Desist. You can acquire a form copy from places like LegalZoom, which is essentially a strongly worded legal letter saying cut the shit, or we will legal karate chop you in the neck. Often, this scares the crap out of people, and your journey will end here with the person hopefully taking down the rip-offed works. If not, it is time to proceed to the final step.
5. Cost/Benefit Analysis
Suing anyone, for anything, is expensive. Legal fees, court fees, your time you could be focusing on your business spent filing paperwork and on calls, if you lose you are saddled with the alleged infringers legal fees as well. Copyright battles can be long, frustrating, and require a lot of work upfront. Before you take someone to court over copied work, you need to prove that you are losing money as a result of their work being offered, and you need to quantify this number. You need need to ask yourself, is the juice really worth the squeeze, and do you have the time to invest in tracking down would could amount to a couple hundred dollars.
In the end, it is super frustrating to do what feels like essentially nothing; emotionally you want to have a solution when there is a clear problem. However, often times, the best solution in this situation is to wait it out - this person will inevitably move on to copy someone else, or hopefully find their own creative voice, and start making meaningful original work. Until then, keep your chin up, keep evolving, and remember that you're not alone in this frustration.
Don't let an instance of copying scare you off from sharing your work, arm yourself with the knowledge of your rights as an artist, and surround yourself with supportive creatives you can vent to, then move forward - on to the next big idea!
Until next time, I will be stress eating cookies and coming up with more original options for my amazing customers.