Knock it off! or Don’t… Please!

After finding 3 bloggers in two days last week that were sharing files based on their copies my work, and losing days to addressing those infringements and looking for and finding others, I have come to believe that educating a growing knockoff community about a few things may be a more productive approach to preventing infringement for me. So, I’m posting this where I can to help get some info out about knockoffs and how they make copied artists feel.

If you are unfamiliar with what I call the knockoff community, let me tell you a little bit about it. It is a community of people who refer to what they create as knockoffs. It’s probably what you are familiar with when you think of a knockoff, a cheaper version of a particular item. Catalog items are frequently knocked off, as the expense of many of those items puts them out of reach of many in the community. So, they find a way to make their own version for a lot less money. They then share these knockoffs along with instructions on how to make your own knockoff. There are websites devoted to knockoffs, and a lot of cross-linking and featuring goes on between the sites that serve as the hub of the community.

In my experience, most of the copiers I have dealt with were good people who had no malicious intent and felt that they were doing something to help people. All apologized and complied with requests to stop distributing their electronic copies of my work.

It is very upsetting to many artists to find their work copied, or to imagine it being copied when they see another’s work copied, and artists seem to come to each others’ aid when they see copies or knockoffs. So, a discussion has started. Some of the best discussions I have seen were started by folks who are part of the community and want to hear people’s opinions on whether what they do is possibly unethical or a violation of copyright.

I am also disappointed at the callousness of some of the segment of the public that sees nothing wrong with copying the work of others. In discussions I have been in, artists have been called arrogant, professionally jealous and overly proud with an overblown sense of ownership. If someone tells you they think their rights have been violated, it does not help to belittle them. You can certainly see nothing wrong with copying if you choose to, but there is no benefit to the conversation in kicking someone when they are down.

It has been great to hear opinions on whether knockoffs are infringement, and if not, at what point sharing knockoffs or how to make them may be infringement. But, our opinions and what we non-lawyers think we know about copyright law are not what determines if a copy is a violation of copyright.

The holder of a copyright has the following rights regarding a copyrighted work according to copyright law:

  • The rights to reproduce the work in copies, prepare derivative works based upon the work, distribute copies of the work, and display the work publicly.
  • The creator of a copyrighted work also has the right of attribution and other rights concerning the alteration of that work.

If someone avails themselves of any of those rights without the permission of the copyright holder, they expose themselves to the risk of the copyright holder claiming infringement and the resulting penalties if it is determined that infringement occurred.

I don’t know if stating that one is copying or has copied an item, and then posting images of that item online and instructing the public how to copy the item infringes copyright of the copied item. I think it’s close enough though, so that if I am the creator of the copyrighted item I should contact the copier and let him/her know that he/she created an unauthorized copy of my work. If copies are being distributed, I have no choice but to send a cease and desist and request removal of the downloadable files and whatever other remedies I find necessary.

I have to do that to protect the rights provided by my copyright. Those rights are the basis of what allows me to make and sell reproductions of my artwork, which is how I support my family.

For me, whether or not copies dilute my brand or offend my sensibilities or hurt my feelings does not factor into my decisions to pursue copycats. It comes down to whether or not a copy violates my rights.

I would hope for people who condone or actively participate in copying (and those who encourage others to copy another artist’s work through tutorials) to consider several things:

  • 1) Is traffic on your website or helping others save money really worth the pain in the neck of being sued for infringement and the possibility of having to pay damages (possibly up to $30,000 per for infringement, up to $150,000 per for willful infringement)? If the argument for making the knockoff is the high cost of the original item, should you not then avoid exposing yourself to that high cost risk?
  • 2) Though infringement is technically a violation of rights, to many artists and designers, it feels like theft. It feels like something has been taken from you. It is a troubling experience. For myself and many I know, it does not feel like flattery. It feels like someone likes your work, but not enough to obtain it through proper channels. When someone is encouraging people to make their own copy and not buy from you, it does not particularly feel like you have inspired someone. It feels like your ability to derive future income from your work is being affected. It feels a bit like someone knocked you down and took your lunch money. It feels like that person is saying, “I like what you did, but I don’t think your skill, expertise, vision, years of hard work, talent, and dedication to your craft had anything to do with how it came out. Anyone could do it.”
  • Please keep that in mind when you embrace an opinion that copying does not hurt anyone. You may not agree that creative people have rights, but it’s not necessary to say there is nothing new under the sun. No one would ever create anything inspiring if we all believed that. If you need to quote a bible verse while telling an artist your negative opinion of his or her rights (happened multiple times), why not: So in everything, do to others what you would have them do to you…
  • 3) I have never seen anything in copyright law related to art/design/craft that says that you can make one copy for personal use. But, if that is true, it may be prudent to consider whether sharing your copy online and using it to encourage others to copy goes beyond personal use. Sharing it online will likely alert the original artist of your copy, and if it’s in a post about how to copy the item, you may have to defend your actions. Hopefully, the artist will only ask that you remove the post, the images and not share or distribute the files to anyone.
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12 thoughts on “Knock it off! or Don’t… Please!

  1. john, this is a really good post, but i think that (sadly, said with real tears in my eyes) people need to know that these laws are not as they appear. they can be interpreted in many ways, as many laws do.

    i am not sure if you know my work, but take a gander at my site. i have been copied by at least five different companies/artists, and i have paid hefty fees for IP attorneys. i have attempted to register my work with the US copyright office and i have learned one thing: ideas cannot be copyrighted. if i want to make a birdbath with a magnolia tree inside, that’s an idea. unless my birdbath has been copied down to the last millimeter, i have no recourse.

    now, there are some people/companies who are belligerent, or have endless finances, and will not stop when asked because they either don’t know they’re legally allowed to do this, or know that if they come at you with a big lawyer and plan to fight you till you lose the strength/finances to fight back–think monsanto vs. independent farmers–till you win.

    it’s shitty. it feels like theft. i actually think it’s theft. it breaks my heart and makes me cry and, i think, hurts my brand and makes me lose income. but it’s not generally, when it comes down to it, illegal. i am not the kind of person who backs down, to a fault. i am idealist beyond words. accepting these facts to be true has been one of the hardest things i’ve ever handled. but they are the reality and while i don’t think you should ever lay down and let people walk over you, we artists need to realize where we stand legally. it’s not where we think we should stand, i’ll tell you that with certainty.

  2. Thanks for adding that Alyssa. All very good points. I am happy to have input from someone who has had experience with this and has retained IP attorneys, but I am terribly sorry to hear that you had to do that.

    I tried to word my post to address specifically items that are copyrighted/copyrightable without getting into what those are. People should definitely be made aware that ideas are not copyrightable and that the protection for things that don’t meet the definition of visual works of art is very difficult to parse out of the way the law is written. That whole useful or utilitarian item (going from memory for the moment so term may be inaccurate) is very confusing. I am really just hoping that people will consider that something may be copyrighted, and the risk to them is high if it is. Corporations are something I hope never to have to deal with concerning this.

    Your designs are very beautiful, BTW.

  3. John, u have inspired me (in the not-copying way, lol) with your good artistic and business sense over the years! Thank you for that.

    I just wanted to point out in addition to the excellent points you have made, that a practice can be legal and still morally corrupt.

    I have heard many times the defense to copying that, “This particular brand of copying I’m indulging in is legal, so there’s nothing wrong with it!”

    Um, a lot of people would, for example, say that abortion is wrong even though it’s also legal.

    So whether a corrupt practice such as copying is legal (AND/OR whether it’s enforceable), is I hope just one tiny factor folks consider when deciding whether or not to make/sell something of another’s design.

    With great respect,
    Celeste (Crickets)

    1. I agree, Celeste! I have seen copiers say this is legal and we aren’t doing anything wrong. To that I say, unless you count making artists feel badly. There must be a better way to express how an artist has inspired you than encouraging others to make copies of the artist’s work instead of buying it.

  4. John, brilliantly and thoughtfully written – thank you. I appreciated your comments in other threads on other blogs, also. This is a challenging topic with so many perspectives, but in the end, I’m increasingly disappointed at (and a bit worried by) this growing knockoff community. Continual public discussion may help. Educating the public will certainly help.

    Thanks for being a calm voice of reason in this week’s debate!

    Brenda

    1. Thanks Brenda! I don’t know if it’s brilliant, but I hope it is effective at conveying my dismay to those who would copy the work of others and encourage others to do the same.

  5. Well said John and a very thoughtful post and you make some great points. I hope that those “harmless knock-off” blogs read this and get a better understanding of who and how they are hurting people.

    I too have been down that road with an IP attorney and Alyssa is right, there isn’t much recourse for product designers like Alyssa and myself, unless you have a bizillion dollars and just want to wear someone down. But as my attorney pointed out, there aren’t really any laws they are breaking. It is completely frustrating and hurtful.

    1. Thanks Allison. I know someone who owned the trademark to the name of what became what I expect is one of the most popular video game franchises in the last few years. He got out-lawyered.

  6. john,
    thank you for your compliments and input.

    i have dealt with both individuals and corporations. while both are difficult, i’m far more hurt by other indie artists. we’re supposed to be a “tribe,” some people feel differently. when i think of making design i like i nearly ALWAYS google to see if that design exists; i don’t even want to make something even if i haven’t seen that item personally, or don’t remember seeing it.

    much of this depends on the bank accounts, as i said. right/wrong, legal/illegal, often depend on how long you can fight.

    at the end of the day, my lost sleep is from being stolen from. the thieves, well, i doubt they lose sleep.
    best
    a

    1. I do the same Alyssa. I think these people should at the least google terms related to what they are about to copy so that, if nothing else, they can properly attribute the artwork they are copying. My skim a few good souls from the crowd who think that artists should not be stolen from, but supported.

  7. I had a very similar experience almost a year ago. I joined an artist’s forum only to find that the “artists” present on the forum had begun an e-mail chain to pass around copies of a tutorial that I had created and that I sell through my shop. And yes, it did feel like a swift kick in the gut. My mind went through all the “why bother?” and “is it even worth the effort?” arguments. And yes, I also had the comment thrown in my face about how I was selfish and egotistical to think that people would want to pay for the right to create my work.
    To pour salt in the wound, I later learned that the…ahem…artist… who had begun passing around my work for free also sold tutorials and patterns of her work through her own online store.
    At this point I could not even fathom the kind of person it would take to sabotage someone else’s hard work when she should have understood exactly the amount of time and effort that goes into that work.
    I am sorry that this has happened to you, but I am convinced that these people who have sown unrest and frustration into your life will reap the same in their own.

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