Thursday, October 7, 2010

Business Tip #4 - Copyright Infringement, Part 1

Copyright Infringement runs rampant ESPECIALLY in a world where having an online-only business is fast becoming the norm. It's not only difficult to protect yourself from violators, but it's hard to even catch them in the first place! One distinction that needs to be made is the difference between Copyright Infringement and Copycats. Both are morally and ethically abhorrent, but only one is punishable by law.

Per the website, the definition of Copyright is:

a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. 

Kind of vague, isn't it? To a certain extent, that's on purpose because there needs to be room for interpretation on a case by case basis. But I felt as though I really didn't understand it so I actually called a lawyer to ask for clarification. Here's what it boils down to, anything that you authored is protected under copyright law. But the term authored makes you think this applies only to written works. Not the case! Here's the definition of authored:

1.  a person who writes a novel, poem, essay, etc.; the composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.
2.  the literary production or productions of a writer: to find a passage in an author.
3. the maker of anything; creator; originator: the author of a new tax plan.
4. Computers . the writer of a software program, esp. a hypertext or multimedia application.
–verb (used with object)
5. to write; be the author of: He authored a history of the Civil War.
6. to originate; create a design for: She authored a new system for teaching chemistry.
So actually, it's not as vague as you might think, is it? Definition numbers 3 and 6 make it pretty clear that original forms of art are protected under copyright law. The part that gets me the most, is 'the originator' i.e. author of a new tax plan.' What is a tax plan if not an idea? So shouldn't copyright protect original ideas?
Well, no, unfortunately, copyright laws do not protect ideas. What is meant by 'the author of a new tax plan' is that a person thought up a brilliant idea, wrote it down and most likely, presented it. So the idea was protected by copyright because it was written down in a tangible medium of expression. It can easily be documented that so and so had this idea on this date.  So the idea is protected. The only other way to protect an idea is a Patent. Patents are in place to protect ideas more notably thought of as inventions and usually apply to new inventions or drastic improvements to old ideas. (Like a Dyson Vacuum cleaner versus your run of the mill Hoover.)
Bringing it down to a more personal level, is the fact that I had the brilliant idea to insert pretty paper into vinyl passport covers or coat the paper in a laminating machine and sew the pieces together protectable by Copyright Law? Um, no. I sincerely wish it was, but that doesn't make it so. Not unless I could prove that every single passport cover I sell is a mini work of art or altered art. That would be very hard to prove. It was a business idea I had. I have often wondered if I'd written down my idea and mailed it to myself (the poor man's Copyright protection) could I make a case that all others who copied me were in violation of that copyright? That's a good question that I didn't ask my lawyer. Since I didn't do that, I didn't bother to ask. 
I'd also like to point out, that if (and when, because it's coming loyal fans) I create my very own artwork and make it available as a passport cover, that WILL be protected under Copyright Law. Not because I had an idea to make the passport cover, but because the cover is made from my original work of art. It's a really fine line, but I hope I'm making the difference obvious (as possible, anyway).  It also probably goes without saying that my logos, pictures, and written descriptions are all protected under Copyright Law (because those are all tangible mediums of expression).
Copyright DOES however, protect your ideas if you have it documented as a pattern. So taking 2 already existing items (paper and vinyl) and putting them together was an idea (not protectable). But taking fabric, linen, a concept (idea) of a travel document holder and designing my own new pattern to make said Travel Wallet, is most definitely protected by Copyright Law. The pattern is my own original design and before I listed anything, I did make sure to protect myself by documenting my pattern. So, no one had permission to make my Travel Wallet unless I decide to offer the pattern for sale. And if I offer the pattern for sale, I have the right to dictate the means of use for that pattern. Meaning I can require, by law, that the pattern be used for personal use only and products cannot be sold using my pattern. 
Guess who one of the biggest makers of new, cool patterns is that has expressly written on her patterns they are for personal use only and items made from the pattern are not to be resold? Amy ButlerFor those of you who didn't already know that, would you have guessed that interesting tidbit? I wouldn't have. In fact, a few of the first diaper bags I sold in my first shop Tattered Tapestry were from an Amy Butler design. One day while cutting out a pattern while working at my Church's Mother's Day Out (babies were sleeping, don't worry) I just happen to read that fine print. When I got home I noticed it was on all the patterns of hers that I owned. Once I realized that, I stopped making her bags to sell. Which was frustrating considering how much I'd spent on those patterns for that express purpose - to resell!! Most fabric/paper designers have Angel Policies. Angel Polices basically mean, they allow you to use their fabric/paper to make a product and sell it. But you are not allowed to associate your product with their name. So all those Etsy listings you see that say 'Diaper Bag in Amy Butler Fabric' are technically in violation of the Angel Policy. They are using her name without permission to market their products. Like I said, fine line!!
Ok, so in regards to the very obvious shops on Etsy who are attempting to copy not only my ideas but also my business model, are they in Copyright Violation? No. It would be hard to make a case of it. And believe me, I have certainly contacted my lawyer about it on more than occasion. Iit's heartbreaking and aggravating to say the least. It's also unethical. 
A fellow Etsian told me to think of it in terms of jeans - you know, blue jeans. One of the first manufacturers I think of in regards to jeans is Levis (ok, so the first is Seven, but only because they are my favorite). Levis may have been one of the first on the scene to take tough, durable denim, 5 buttons and make those super sexy button fly jeans. It didn't take long before they were copied. And copied, and copied again. Maybe the pattern was slightly different from each copycat, but the concept, the IDEA, was/is copied repeatedly. There are jeans manufacturers that try their hardest to undercut the prices of a good pair of Levis (the Walmart brand, Rustler for example).  Do they take sales away from Levis? Of course, or the copycat wouldn't be in business.

This is the difference between Copyright Infringement and nasty ol' Copycats. One person can have a brilliant idea and then someone else comes along and thinks, "Wow, I want a little piece of that action" and goes to the trouble of finding out how you do what you do so they can do it too. The only course of action you really have is to be better than them. (Levis are better than Rustlers, in my opinion anyway). But it doesn't make it any less devastating for someone to ride the coattails of your brilliance.  And it makes it so much worse when they make a point to say they have been selling them for years at craft shows, etc. Maybe it's true, but it's not really likely is it? And what is their other course of action? To say, 'Man, OSD has such cool stuff and I'm devoid of any original thought of my own, so I think I'll do what she's doing so I can have a little piece of that pie." Also not likely.
It's obvious that I have a small handful of people who admire my business model so much they have decided to copy it (as best they can). The truth is, I've also been accused of being a Copycat. Unjustly so, but accused just the same. So my opinion on Copycats might surprise you. But since this post is already so long, I'll save my personal stories and opinions for part 2!

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