I’ve been hearing a lot of chatter on the internet this past week about copycats on Etsy. These are people who look at someone else’s designs, make them, and then sell them as their own – often at a price that undercuts the original designer.
So what can you do if someone steals your designs? I think the first step is understanding the ways your designs are protected. One of the best resources for understanding intellectual property is The Entrepreneur’s Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing. I read this book last year, and it gave me a much better understanding of the ways I could protect my designs. Here is an overview of the different types of intellectual property protection, and how they might apply to you: (Note: I am not a lawyer, and this information is not intended to replace qualified legal advice. I’m just trying to help you get a better understanding of the different areas.)
Trademarks cover the source of the product, not the product itself (even though we might call a product by its trademark name). One example is that Twinkie is the source of a snack cake (ie. Twinkie brand snack cake). Coca-Cola is the brand of soda, etc. What this means for you is that you can trademark your company name, logo, or product name – but trademark does not protect your designs themselves. There is another category of trademark called trade dress – this covers the colors, shapes, and styles of a brand (such as the red & white of Coca-Cola). Trade dress could extend to the products themselves, but this is very difficult (and expensive) to prove.
Did you know that you can’t copyright useful things? Copyrights are meant to protect expressive works. However, there is a blurry boundary between creative and useful objects and copyright can cover certain aspects of a useful object. According to the book, “Copyright is best suited for art that appears on functional objects such as a design or ornamentation that is not part of the physical, functional structure of the object.”
I think this is where it gets confusing for handmade objects. Most makers would consider their works as creative expression, and therefore covered by copyright. But if you create a pair of earrings, which are a useful object, than how does that fit in? You may be able to protect your unique surface design through copyright, but that innovative ear-wire system probably isn’t covered.
The minute a work is created, it is technically covered under copyright. But to further ensure protection, you can register your work with the US Copyright Office. You must have your design registered in order to take legal action against an infringer. Because it only costs around $30 to register a work, its worth doing for a design you want to protect, just to be on the safe side.
Another option that more clearly protects your designs for a useful object is a design patent.. “Design patents are best suited for protecting the shape and appearance of useful objects such as perfume bottles bottles, furniture, cars, and appliances, which have designs that have commercial and economic value.” And while easier to apply for than a traditional patent, design patents are still difficult to obtain and expensive. Based on the costs on the PTO website, it would cost over $600 dollars to apply for a design patent, plus over $3,000 in maintenance fees over the next 12 years. And those are the reduced rates for small businesses! And you must apply for a design patent within one year of an object being sold or used. Financially, a design patent isn’t worth it for a one-off or limited edition design. They are really meant for a product that you plan to product in large quantities and sell for a long time. (Or that you plan to license to another company to manufacture.)
After reading most of the book, it did seem like there were still a lot of opportunities to have others steal your ideas or designs. Fortunately, there is one more method of legal recourse – which is unfair competition. This affords some protection for someone who is copying aspects of your design in such a way that (while not covered under copyright, trademark, or patent) seeks to confuse the public on the identity and source of the product. This should offer some means of protection over someone trying to co-opt your entire brand identity as their own. (At least I hope this is the case).
With any of these forms of intellectual property protection, it is up to you as the maker and designer to constantly police for infringers. If you find an infringer, it is also up to you to legally challenge this infringer, which can take a lot of money. Sadly, sometimes with IP, its the person with the deep pockets, not the person who is right, who wins. If someone does steal one of your designs, you need to weigh the financial outcome when proceeding. Is it worth it to spend more in legal fees protecting the idea than you (or the infringer) would have made selling the product?
So what can you do?
Etsy does have a policy in place if you believe another seller is infringing your designs. This gives you the opportunity to report possible copyright infringement to Etsy. But the policy is very specific, and because any costs could come back to you, it’s a good idea to consult a lawyer before contacting Etsy.
More importantly, as makers, we need to keep the conversation going about what is appropriate. It is NEVER ok to use someone else’s designs, and certainly never ok to sell that design as your own. We should also make sure that we are continually supporting those makers with the original ideas, and watching out for each other. While legal recourse can be a difficult path to pursue, we should work to create a community of trust where everyone understands that it is unacceptable to profit from someone else’s ideas.
Note: Parts of this post originally appeared on my other blog.