The 7 lessons I learnt about intellectual property for creatives

Many creatives are concerned about intellectual property – How do you protect your work online and on social media? How to stop people copying your best ideas (especially if you teach craft workshops!)? How do you avoid big brands copying your latest products or ideas.

Throughout July 2019 we have been talking about intellectual property for creatives in our Business Club with exclusive sessions with Dids MacDonald of ACID (Anti Copying in Design) and IP lawyers Briffa & Co. We published a blog post with useful resources about intellectual property for creatives, and textile & paper artist Jennifer Collier talked frankly and inspiringly about how to respond if somebody copies you, plus we published ceramicist’s Amanda Banham’s experience when somebody copied her – with practical tips of what to do and not if somebody steals your ideas by intellectual property lawyer Margaret Briffa.

We anticipated that intellectual property was going to be a big topic. But we have been overwhelmed by the response! Sometimes very emotional responses. We received many many emails about intellectual property problems from creatives who wished to stay anonymous. Thank you for sharing with us. And for trusting us.

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This blog post is my personal take (Patricia van den Akker, Director of The Design Trust) on intellectual property for creatives, and what I have learnt in the last month but also in the previous 20+ years as a creative business adviser about intellectual property for creatives:

Lesson 1: Intellectual property is (surprisingly) emotional

Although many creatives prefer to put their head in the sand when it comes to anything to do with law, the reality is that many creatives have quite strong opinions and emotions around intellectual property, and especially when it comes to protecting their creations.

Over the last few weeks and years we have heard from many creatives whose work was copied or at least very strongly influenced by.

But we have also heard from creatives who have been wrongly accused of copying others.

And that’s very painful too.

Last Autumn I spotted on Kickstarter a campaign for a planner called Dream Plan Do. For anybody who knows what I do – I have been self-publishing the Dream Plan Do planner journals for the last 3 years. I was so furious when I found out! Although … it very quickly turned out that the design, audience and quality was rather different than ‘my’ planner. But I still was out on revenge!

However, when I digged a little deeper it turned out that this lady in the USA had been self-publishing her Dream Plan Do planner … since 2015! Two years before I launched our Dream Plan Do planner. Oops. I had to calm myself down very quickly. Sometimes it’s true: people come up with the same names or ideas (more about that later!).

On the other hand, there was also a planner designed in Italy with a very similar name, feel and audience as ours, which we got removed from Kickstarter. And there are at least two very similar business planners for creatives around that look remarkably similar to our concept, but we can’t really do anything about. We just hope that clever and professional creatives spot the one that’s the best! 😊

Being copied really hurts. It’s not flattery at all.

Many creatives have told us how it really hurt them deeply when they found out that they have been copied. They often put their soul into their work, and have developed very personal techniques and quirks over many years and sometimes decades. If they are known for a specific technique then their identify is often closely aligned with it.

When somebody then just copies that they feel really lost.

As if somebody has stolen their identity.

Something that was deeply ‘theirs’ got taken away.

Unfortunately, the reality is that unless your work is copied in detail and you have proof that you were the first to develop this, then it’s unlikely that you have a legal case. The difference between imitation and inspiration is very small indeed. Although you might feel like it’s a copy, most specialist IP lawyers would need to see clear evidence and would probably disagree.

You might feel that you have the moral right. But unfortunately, you have often limited legal rights. And many creatives know that and feel very powerless. Especially if it involves big brands or other small creatives.

You can read here ceramicists Amanda Banham’s story about what happened when somebody was heavily inspired by her ceramic rainbows and houses – with very practical tips on what to do and what not by IP lawyer Margaret Briffa of Briffa & Co.

Lesson 2: The dubious role of social media in copyright infringement

Increasingly we see social media guerrilla campaigns to point out and often have-a-go at copycats, attracting regularly 100’s of comments and shares. Such as in the case of jewellery brand Tatty Devine accusing Claire’s Accessories of stealing their unique dinosaur design and other icons, which quickly got them mainstream press interest and the case was indeed swiftly settled out-of-court afterwards.

However when we spoke to various intellectual property experts they all were very cautious about using social media. It might help as a last resort tool but it is strongly adviceable that you get specific legal advice of what to do and write exactly. If your case comes to court then your social media actions might work against you. If you accuse somebody of copying your work while this isn’t (entirely) true then they might sue you for defamation. Use specific words and avoid others. Be careful.

Lesson 3: Unfortunately many amateurs start with copying

When you are learning something new then you need to start somewhere. And as crafts and handmade are super popular right now, many new creatives look for ‘inspiration’ on popular social media platforms like Instagram and Pinterest. Often copying the work of professionals who have developed their styles and techniques over many years.

It’s one thing to copy a design for yourself, your own use or as a gift. It’s something very different if those copied pieces than appear online or on social media for sale.

If you want to be a professional creative then please be original. We all need inspiration, but make sure that you add your own unique take on what you create. Especially if you are promoting and selling your work.

Many new creatives are not aware of intellectual property or copyright. If your work is copied (but make sure that you have got a case – see Margaret Briffa’s tips here!) by a fellow (new) creative then a good first action point is to get in touch with them by email or letter, and explain that you believe they have copied you, you clarify your rights, and very often they will take it down immediately.

For example: a couple of years ago our software alerted me that nearly 40 of The Design Trust’s blog posts had been copied on to another creative business support’s website. They had removed all our links to our site and referred them back to their own pages. I got in touch with them in writing immediately, explained that it was my copyright (and very hard work to write these original blog posts based on over 20 years experience … “thank you very much …!”) and requested that they were removed immediately. I suggested that it was fine to refer to short quotes and refer back to specific pages, but that copying 40 blog posts in their entirety was an infringement of my copyright. They apologised and removed them immediately.

This is very often the case. A simple letter explaining and confirming your copyright is all that it takes. Many people do not know what copyright is and how it works, and might infringe your copyright without realising it. If a stronger letter needs to be send then a formal cease and desist letter from a lawyer can work well too.

This takes us neatly to my next intellectual property for creatives lesson:

Lesson 4: Educate yourself. And other creatives.

Many creatives are very scared about intellectual property and prefer to put their head in the sand. Although IP law should be really straightforward, it’s actually one of the most complex! (Hence, we as The Design Trust do NOT provide any legal advice. We are not legal specialist and we suggest you get in touch with any of our recommended intellectual property organisations here.)

There are many myths around intellectual property for creatives, and it’s rare that art colleges teach the basics around intellectual property (more about that later).

Many creatives are very worried about being copied, but then often do the ‘wrong’ things such as leaving samples or send high res files to potential large clients or manufacturers, or ‘free’ competitions (in any of these cases your work can be very easily copied!).

Not knowing the basics of intellectual property might stop you from pursuing potential opportunities with bigger retailers or clients, or for undervaluing your worth in licensing agreements.

But this is also about you NOT infringing somebody else’s intellectual property! Do you know that your photographer is very likely to have the copyright on your images (unless stated clearly in your contract!)? Did you know that you can’t use quotes on products and books, unless you have explicit written approval?

Indeed, a couple of years ago we fell unknowingly foul of the latter. We had commissioned 3 designers to illustrate quotes from creatives and business owners for our first Dream Plan Do planner journal to be included at the start of each month. I wasn’t aware that I needed explicit written confirmation and we had to change and delete these illustrated quotes the week before we went to print. Very stressful indeed, but at least we didn’t run into problems later on, when we potentially would have had to stop selling our planners. You can read here a useful article on the Etsy website about intellectual property infringement and how they deal with it. 

Another example is my own sister who started her fashion-for-disabled-children business 12 years ago and received within 3 days of her opening her online and bricks-and-mortar shop a very threatening letter from an IP lawyer. It turned out, that although she had done some basic trademark research, she hadn’t checked out the trademark register in the Netherlands in detail when launching her new business.

It turned out that a trademark had been registered in the fashion category and hence this business had a claim on ‘her’ business name. She had to change her new business name immediately, and completely rebrand her website and all promotional material including business cards and brochures – immediately. The cost of replacing everything was huge, and of course this wasn’t the business launch she had had in mind! To avoid a similar issue for your business you might like to check out this blog post by the IPO on trademarking your business name.

Indeed, it’s very easy to become more ‘IP savvy’ and educate yourself about intellectual property and how to protect yourself. Use the copyright icon. Be careful what you share with whom.

We reviewed the most useful books and resources around intellectual property for creatives in this blog post. Feel free to share!

Lesson 5: Be extremely careful when you teach

We have had many creatives contacting us about copyright infringement as a direct result of teaching craft workshops. Our advice to anybody who teaches:

• Do make it clear in writing before and during the course that this work or design is your copyright and explain that that means that your students can’t copy and then sell it as their own. When sharing any templates or patterns then it’s recommended that you include the copyright icon with your name and the year. Make it clear in writing that it is for their own personal use only, and not for commercial use. It might be good to have a conversation about it during the class, and even have this included as part of your terms and conditions.
• You might also consider to teach certain projects that are easier to make, but not offer similar projects for sale. This will avoid any painful situations in the future.

You can read here the personal story of ceramicist Amanda Banham about what happened when she taught friends her raku ceramic techniques.

Lesson 6: The role of the bigger players, journalists, art colleges and (trade) fairs

It’s extremely frustrating when any of the ‘big boys’ steals from a small creative business. There seems to be a certain group of big brands that tend to copy from smaller businesses, sometimes by buying their products, sometimes by inviting them in for a meeting or through ‘free’ competitions. Be aware of the companies that have a bad reputation in this case. Do ask more experienced creatives about their experiences. And be careful to jump happily into meetings without being IP savvy! ESPECIALLY with some of the big names. 

Many small creatives feel very upset when they get copied by big brands. It does often feel like David and Goliath.

Not just does it feel extra unfair, but also are they missing out on a potential lucrative deal.

Plus small businesses often don’t have the capacity, energy, money and knowledge to fight cases against much more powerful big companies.

A few years ago a very small knitwear company on the Scottish Fair Isles managed to win a case again copyright infringement by French fashion giant Chanel. I had the pleasure to meet the very inspiring Mati Ventrillon a couple of years ago, and I was amazed how she personally dealt with such a big case like this.

If you experience a copyright infringement by a big company like this we strongly recommend that you get immediate professional advice as copyright law is more complicated than you think. See here our list here for recommended organisations for intellectual property for creatives.

I am also very pleased to hear about the lobbying work that membership organisation ACID (Anti Copying in Design) is doing with the big UK companies around intellectual property and how they are working with big companies to make it part of a broader ethical stance on doing business. As individual companies it’s very hard to fight big companies, but together we can achieve much more. I would love to see organisations like the Design Council and the Crafts Council do much more in this regard. Although the Design Council has some basic information about intellectual property for creatives on their website, it’s not at all mentioned on the Crafts Council’s website.

However, I also would call out to journalists, awards organisations and (trade) fair organisers to be more vigilant around work being copied. I regularly visit events or are part of a judging panel and notice then regularly work that’s very strongly influenced, in particular at graduate events. Recently I was a judge in a graduate show where I spotted a series of woven pieces that were very reminiscent of a well-known British weaver. I was very surprised to see that this young weaver then was selected for a large article in a major design magazine by a journalist who should frankly have known better. Stop supporting copycats please. And dare to call people out on it. Especially if you are in a place of influence. 

I also strongly believe that art colleges and universities in particular have a much stronger role to play in combating intellectual property infringements.

I strongly believe that universities can provide much-needed advice early on, by:

• teaching their students the basics of intellectual property for creatives,
• but also to teach them more about the history of their craft (so they know their roots!),
• and a far stronger focus on being original and where you can find your own inspiration (away from the internet and social media!).

The University of the Arts London used to have a specialist intellectual property department called Own-It, which was very useful and pro-active in providing intellectual property advice. They have a useful two-page resource on intellectual property on their site here now.

Lesson 7: Sometimes similar ideas happen at the same time

Yes, sometimes similar ideas happen.

A couple of years ago my husband, who works in advertising, was part of a team that was about to launch a mega-big advertising campaign. Then a week before their multi-million pound launch a close competitor launched their own campaign with a very similar idea. They checked, but nobody was to blame. They pulled the entire campaign (at great cost) and came up with a  new idea.

The thing is with intellectual property: You can’t protect ideas.

You can only protect the finished thing.

It’s the execution that counts.

But if it feels too close to what others have been doing, and potential clients could confuse you, then do walk away.  It’s the professional thing to do.

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Did you find this article about my lessons about intellectual property for creatives useful? Then please share it so that more creatives are educated and know what to do. We would love to hear your comments, and especially if you learnt something in this post or from the resources we shared above. Or if you know of any additional intellectual property resources then let us know too.