If you’re an independent artist in this here digital age, the chances that you will be inspired by another’s work are quite large. Pretty undeniable, in fact. The chances that your work will inspire other artists during the span of your creative career are equally large. I happen to think that there’s a beautiful kind of symmetry to this, which none can deny is perfectly natural.
But what happens when you suspect a Big Brand has actually ripped off your original designs? Is there anything you can do about it or is it unrealistic to expect a large corporation to take any notice whatsoever? I set out to explore these questions with the help of those who have experienced it first-hand.
Back in January of this year, as I’m sure many of you are aware, UK Etsy seller Eloise, a.k.a. HidenSeek, was informed by fans and fellow artists that one of her original artworks had allegedly been copied and was being sold by UK high street retailer Paperchase as a motif on various products. Over the following weeks, the unfolding story with its many twists and turns was followed by thousands, becoming a global top trending topic on Twitter and was reported on by many a reputable media outlet, such as The Guardian.
You can trace Eloise’s side of the story every step of the way as it unfolded on the HidenSeek Blog, but she has kindly agreed to share a recap of her experience with us here.
Eloise’s Original Artwork — He Says He Can Hear the Forest Whisper
Tell us about your initial reaction and the very first steps you took.
“I’m glad to say that I initially remained quite calm. I sent a kindly worded email to the company explaining the situation and requesting details about the infringing items and requested that they were taken off the shelves immediately. At that time I was assuming their innocence and I was also assuming (hoping…) that they would be as shocked as I was about a blatant, in my eyes, case of tracing. Paperchase replied that the similarity between my artwork and their design was not strong enough and so they would continue selling them all. I sank a bit with this wall they erected so I contacted a lawyer.”
Did you consider legal action?
“I took legal advice up to the point where I was offered a quote. The $40,000 (£25,000+) bill just to begin court procedures seemed a tad steep to me. I understood then that I could risk going into debt just to defend my intellectual property. I have since also learnt that the legal procedures can be excruciating, as you are treated as a suspect and a possible criminal. There is always the chance that the other party will fight your pockets instead of your evidence by dragging out the procedures and even after you win you are not guaranteed your legal expenses back. You are certainly not eligible for compensation for the months of hard effort a trial requires. The legal system regarding intellectual property, both in the UK and in the United States, certainly seems unfairly balanced in favour of big business, in my opinion. I am very vocal about this and I will continue to be until there is change.”
What was the outcome?
“Unluckily for my case, Paperchase had licensed the design in question from a small external design agency, who had in turn licensed it from an independent designer. In legal terms, all three parties had some responsibility and Paperchase had the biggest financial one since they made profit selling the design around the world for months. Paperchase, however, saw fit to claim zero responsibility and blame it all on the design agency and independent designer. I received generous informal advice from a dozen people involved in law during my fight and they all made it clear that Paperchase was legally liable. I am stressing this because I have since heard about similar big companies using the same ‘Paperchase defence’ and there is simply no legal basis to their claims. What a company in such a case can do is seek to recover damages from the external designer, but that is another matter.”
Video via HidenSeek
“I was satisfied that at least they took the items off the shelves after the torrent of complaints they received but it was obvious that they were not willing to do any more without a legal battle. I asked Paperchase to give any profits they made through the infringing items to charity. They have ignored this request completely.”
What do you feel you’ve gained from this experience?
“For a straight week, when the public battle was raging, I floated and survived on the kindness of strangers. There isn’t a softer and brighter feeling in the world. I learned a lot about intellectual property and the legal system, even about the nature of big business during my struggle. But nothing compares with the lessons I received on the kindness of thousands around the world.”
Do you have any advice for artists in a similar position?
“Never fear to put your work out there! It is unlucky if someone copies your hard work but the answer is not to shelter your creations. On the contrary, spread your work everywhere! One of the big reasons that everyone rallied behind me and against Paperchase was that there was no controversy — people researched my claims and quickly found strong evidence that my artwork preceded the copy. From the very first sale of the artwork on Etsy, to my Flickr account, there were traces of my art that could not be forged. There is also another very important reason to get your art out there: we want to see it!
“There are many ways to deal with copyright infringement and each country has its own laws so general advice is tricky. Start with a letter to the other party and if your lawyer writes it, even better. Within the UK, you generally have the right to ask for all infringing items to be removed from sale and then shipped to you without expense. On top of that, of course, you deserve damages and fees. The law is in your favour if you manage to enforce it. You might want to have some insurance against intellectual property theft and/or join a support group like ACID in the UK. If things are not going anywhere, by all means go public and tell us all about it, but please know that a publicity campaign can go in any direction and is the most unstable of all solutions. If it does explode, like my case did, it will be the most exhausting thing you have done in your life.”
Item by typewrds
After putting out a call for submissions in the Forums, another UK Etsian who wishes to remain anonymous shared her story with me privately via Convo. I was stunned to learn that she had found herself in an eerily similar position with Paperchase in mid-2009, yet felt powerless to take action:
“My case wasn’t as clear-cut as it was with HidenSeek. Shapes were slightly different and the lines making up the pattern were different, but the colours they used were the same. I didn’t do anything about it, I’ve been to art school, I know about intellectual property and copyright, and I know how difficult it is to prove anything. Fortunately, or unfortunately for Eloise, her image was close enough so that there was no doubt in anyone’s minds — I’m sure even the Paperchase people realised when they received Eloise’s email.”
Along the way I’ve heard many tales of alleged copying from Etsians. Some involve other members, some involve overseas companies and occasionally another Big Brand case will crop up. The original blog now appears to be offline, but I have heard from several sources that UrbanCounterfeiters was once home to a dazzling set of examples of a certain international brand taking perhaps all-too-literal inspiration from independent designers. Upon stepping into one of the London stores of said brand not so long ago, I remember being shocked to find it filled — quite literally, almost floor to ceiling — with a particular love-letter-style locket necklace, which had spread through the jewellery designers of Etsy like wildfire months before. This isn’t so much of a copy as a rather intuitive tactic of a brand known for its youth-inspired trendiness.
Item by NanLawson
A series of official statements from Paperchase, Gather No Moss (the external design company), and Kitty Mason (the alleged infringing designer) were eventually released on the Paperchase website, which no longer appear to be online, so sadly I can’t link to them. I did, however, contact Paperchase, who sent me the statements that admit fault on several accounts and offer apologies. This is a purely personal observation, you understand, but looking at the statements now, they read like a trickle-down effect of shirked responsibility ending with Kitty Mason’s unreserved apology to all parties involved at the very bottom of the page. I can’t help but feel a twinge of sympathy for this girl, who in my mind was really only catering to an industry norm. I myself was once a designer working for a similar external design company to Gather No Moss and was privy to the inner workings of Big Brand business. I observed a couple of things, which I don’t mind stating unreservedly:
- It is absolutely common practice within many creative industries to imitate, and yes, sometimes outright copy, another designer’s work. The Big Brands themselves wouldn’t necessarily be aware of specific cases of copyright infringement because they purchase designs from these external agencies, which they then have manufactured and sell to the public.
- Designs bought directly from overseas mass-productive factories would once in a while appear to be a direct copy of an independent designer’s, or even high-end fashion house’s, original work.
So who’s to blame in an industry where imitation has long been accepted as common practice — the Big Brand, the design company or the designer? Perhaps my own perception of shirked responsibility is actually a long line of individuals who simply do not know how to handle a new kind of situation presented by this day and age — a time in which independent designers have new power in the shape of global networks of support.
It could be argued that companies such as Paperchase are actually innocent players in all of this, oblivious to the origins of the designs they purchase through outsourcing. I don’t think we can realistically expect Big Brands to police their designs so closely as to inspect every small business and Etsy shop for similarities before they buy, but they do have some duty to take action in the event that one of their products does, in fact, turn out to be ripped off artwork. If a Big Brand removes all offending merchandise from their shops in response, is it fair for them to sue the infringing designers or overseas factories for damages?
Item from HoldTheWire
I wonder how many of us are aware that a fair amount of the work of Etsy’s in-house attorney, SarahSays, involves looking into listings that an array of intellectual property owners — Big Brands, Etsians, small businesses and lawyers alike — ask her to remove on the grounds of suspected infringement on a daily basis. She says:
“Where’s the line between infringement and fair use? I don’t know, and I’m a lawyer. There are so many circumstances that come into play, and artists, lawyers and judges may disagree. There are also at least two sides to every story.
“We at Etsy treat all allegations of intellectual property infringement in exactly the same way. We need to comply with our Copyright and Intellectual Property Policy because, ultimately, Etsy is just a venue. We are simply not qualified to make these very important decisions and we cannot advocate for one side or mediate disputes.”
The silver lining in all of this — and there is one, folks — is that Etsy is clearly making one helluva impact on mainstream design. This just goes to show that the Independent designer is a powerful player in the worldwide playground where creativity meets business. Yay, us! Now, if we could only convince the corporations that the best way to go about selling the public what they want is to approach and actually work in collaboration with Etsy’s super cool artist community more frequently.
Collaborations with Big Brands do happen right here on Etsy and I’d like to follow up this article with the proof. Have you worked with a Big Brand and had a positive experience? Contact AmityUK.
This information is for educational and informational purposes only. The content should not be construed as legal advice. The author and Etsy, Inc. disclaim all responsibility for any and all losses, damages, or causes of action that may arise or be connected with the use of these materials. Please consult a licensed attorney in your area with specific legal questions or concerns.