A maker’s story: Imitation or inspiration? What to do when somebody takes your ideas.

All designers should strive to be original and develop their own ideas. Unfortunately many successful designers find that others imitate their work.

The laws on copyright should be straightforward and easy to apply. But in fact copyright law is complex and an expert lawyer is often needed to advise as to whether there is a legal claim or not. In many cases there is no legal claim because the law does not protect ideas themselves but only the details of their expression. This means that only the closest of copies can be dealt with successfully on a legal basis.

This situation leaves many creatives feeling violated and without adequate redress. It takes an emotional and financial toll, often on very small businesses who do not know where to start to resolve a situation. There is nothing new about all this. It been a serious problem in the creative world for a long time. But it seems to be happening more and more now – not just by big businesses but also often by individuals.

We spoke to a creative who has been through the experience and we asked her to share her story. Below ceramicist, Amanda Banham, tells us what she did when somebody copied her work and that is followed by a comment by Margaret Briffa, Founder of Briffa Intellectual Property Lawyers with some very practical do’s and don’ts for creatives who find themselves in a similar situation.

Amanda writes:

“I first met the people who came up with the designs that were very similar to my work at a fair I was selling at one Christmas.  They asked me if I was going to run workshops and funnily enough I had been planning to arrange some for the following year and was flattered to be asked. One of the women then proceeded to book in and take part in virtually every class I arranged, her friend came less frequently but I soon knew them well, we became friends.

I had wanted to get my own raku kiln for ages and found a man who will bring the raku kiln to you and do a day’s firing with you to get the hang of it. I had been to many Raku firing days before in London but I hadn’t been “in charge” of the proceedings myself.  As a “thank you” to these two women for being so supportive of my classes I invited them to the day at my house when the kiln was coming.  Raku is highly addictive and they were soon hooked.

As one of the women had a big garden and no immediate neighbours we arranged to do some firings in her garden during the summer. We also invited two other friends of mine to join us. I was by now selling my houses to several galleries and needed to build up some stock.  I had also had the idea for the rainbows and when I unveiled those at one of our gatherings everyone agreed they were unique and a good idea.

I soon found I needed to fire much more often than the frequency that we had been firing together as my houses and rainbows were proving a big hit with the shops and galleries I work with. I had also begun writing stories about them on Instagram and was gaining popularity. So I began doing it at home and not as a group activity.

During that summer I was asked to do a fair locally which happened to be in the village where one of the women lived. The woman who was initially most keen on pottery had developed an idea that was looking quite pretty in clay and I asked her if she wanted to share the stall with me. She didn’t bring any raku fired pieces with her and I had joked with her before we did the stall that I hoped she wasn’t going to turn up with houses and rainbows … Ha ha ha. We met up less after that and apart from a Christmas meal we shared with the other women we had been raku firing with I don’t think I saw them again.

From then on I was raku firing at home with my husband helping me and I didn’t give them a second thought.  I assumed they had moved on to another hobby and frankly I was too busy with my own work.

It wasn’t until the following September that a couple of people asked if I knew what they were up to and had I seen their work? I said I had not and so one friend showed me a photo from the new ceramics page they had set up on Facebook under their new business name, which clearly showed a collection of raku fired houses and rainbows and captions about how they were looking forward to taking part in various fairs that Autumn. They were also screen printing on clay which is my other signature style and offering workshops for people to learn from them!!!

I felt sick, as if I had been kicked in the stomach.  I felt so betrayed. I was confused, I was in shock. I showed a few close friends the photos to check I hadn’t somehow not seen the image of the rainbows correctly. But no, I had and everyone I showed it to was indignant on my behalf and asked me what I was going to do.

I wanted to phone them up or email them but my feelings were too raw. I felt as if someone had stolen my identity. I also couldn’t understand how they could be so stupid as to imagine it was ok to use the ideas that someone who taught you had had and to think that it would be ok. I knew a request to stop from me would probably fall on deaf ears.

One of my best friends from school is fortunately now one of the world’s leading IP lawyers and she offered to write them a “strongly worded letter” which she did, pointing out, after extensive research, that I was the first person to raku fire a rainbow and would they please cease from making anymore. 

I know I am not the first person by a long way to make a ceramic house, but it was still shocking to think that someone I had taught and who lived a stones’ throw from me saw fit or had such little imagination they thought it was ok to make them too. I posted a post on Instagram which made me feel better.   It wasn’t naming or shaming anyone but it was my own way of handling it all. Even though they denied they had copied me to all and sundry, they retaliated by blocking me and seemingly most people I knew on their social medias. Not that I wanted to look at what they were up to and I was glad they wouldn’t be looking at mine.

They employed an IP lawyer who sent a letter back claiming that as there was a 10% difference in my rainbows and theirs they should be allowed to continue. As for the houses, we know there are lots of people who make houses so there is nothing I could do about that.

I didn’t particularly want them to stop because it was legally wrong I wanted them to stop because it was morally wrong and it was so upsetting. 

I couldn’t be bothered with any more letters as I knew my work was reaching more and more places and that people were beginning to associate my name and my stories with my houses and rainbows and so I knew I had to concentrate on building up my own reputation and stockists. Their work wasn’t a financial threat to me and I had yet to see it in any shops for sale so I thought the best plan would be to build on my reputation locally and nationally and concentrate on building my brand.”

What I learnt from this and what I’m doing now.

“The whole episode affected me in so many ways.  I went completely off teaching adults. I was worried about going out of my house for a short while as I knew if I bumped into either of them I would probably cry! I felt miserable that two people I had thought of as friends were now no longer my friends and I felt cross about all the negative emotions they had made me feel. I have always been so, too (?) trusting of people and this has slightly changed that, maybe that is a good thing!

I don’t have a clue what they are making now or indeed whether they are still making ceramics as I have mentally blanked them out.  I am teaching my first adult class for a long time in a few weeks and am asking everyone to sign something to say they won’t be seeking to financially gain from any of the pieces I teach them to make and that they won’t be setting up shop making raku rainbows!

If you are starting out in a new creative venture I think it’s natural to emulate the work of the person who has taught you initially, after all they are your immediate reference point. But when you come to selling your work and setting up your own identity take a good look at your influences and references. If they are derived from the work of someone you admire then you may quite possibly end up being too heavily influenced. Then make a cup of tea, have a chocolate biscuit and go out into the world for YOUR OWN inspiration and ideas.

As a potter the last place I look for inspiration is pottery or potters.  I take walks and I look around me. I look at films, textiles, architecture and fashion. I like finding ideas in the everyday and I am confident in the provenance of my own designs.” 

What to do if you are in a similar situation as Amanda? And what not to do?

We asked Margaret Briffa IP lawyer and Founding Partner of Briffa to explain to us in more detail what to do and what not to do:

“This is a classic case of someone being inspired by another designer’s work and making their own version. The closeness of the parties here makes it even more distressing than usual, but as Amanda has rightly acknowledged she may not have a legal claim but she strongly feels morally that what has happened is wrong.

As stated in the introduction to this story this scenario is very common. So how should you react if you find yourself in a similar situation? My tips would be:

• Get hold of the offending piece if it is available for sale at a fair or shop or download images if being sold on line. That first step secures the evidence and gives you a chance to properly examine the offending design before deciding what to do.
• Take professional advice as to whether you have a legal claim or not and use an expert IP lawyer. A number of law firms, like my own firm Briffa, offer a no charge consultation to review just this sort of thing and let you know your options.
• Be sure to find out your legal rights before taking any action. Firing off a letter which is incorrect can land you in hot water and make a situation worse. Conversely even a consolatory letter can count against you where you do have a strong legal claim.
• As well as the legal rights and wrongs consider what you want to achieve. Do you want the other party to stop what they are doing, pay you compensation or a licence fee or something else? It’s important to find out what is possible and what would suit you as a resolution.
• Think outside the box. Often designers get stuck on the outrage of it all and fail to move on to see how they could use a situation to their benefit. They fail to consider what commercially favourable outcome they could get from what has happened. A simple example is where a retailer has copied you, where the solution may be to persuade them to purchase from you in the future instead of from someone who has taken your idea.
• Consider what other tools you have to beat the cheats. Someone who has taken your ideas may not be prevented from selling but they can’t sell under your brand or claim them as the ‘original’. Make sure you build value in your designs by making customers wants the original from a recognisable and named brand. Take steps to protect your brand in the same way you would your designs.
• Don’t spend money on a legal dispute unless you are on firm ground and you can not only win but recover your costs from whoever your opponent is. An expert lawyer will let you know if this is possible or not.
• Don’t resist that cup of tea and choco biscuit and getting out into the world advocated by Amanda here. Quiet reflection on your own strengths and what is best for you going forward is an excellent tonic at a trying time.”

The Design Trust would like to thank Margaret Briffa for adding different options and solutions to this guest post by ceramicist Amanda Banham.

Do you recognise Amanda’s situation? What did you learn from this guest post and Margaret’s practical advice? We would love to hear from you in the comments box below.

Please note that we manually monitor any comments and The Design Trust has the right not to publish comments if we think they are inappropriate or inflammatory.