Welcome to Part 2 of my 3-part post on copyright! Ok, so let’s talk about protecting yourself as a professional…whether you’re a starving artist/designer or a small hobby business crafter, everyone needs to understand a few simple (yet very complicated) things…can I get an Amen? ;) Let’s get right into it, because I truly believe this is the meat of my entire post.Designers, to avoid obvious infringement, make designs elaborate and MORE creative! If a design is VERY distinct, the copies will stick out like a sore thumb. On the other hand, if “Merry Christmas” is written in a pretty font and someone decides to find that same font and write “Merry Christmas” also, it would be really tough to see who’s actually copying whom…especially if it’s plainly typed with no artistic expression along with it. In reality, how many different ways are there to place the words “Merry Christmas?” Coincidences happen, and designs may look the same by accident – especially if the design wasn’t extremely creative in the first place.
Watermark, watermark, WATERMARK! I can’t stress this enough. Many designers who are not familiar with vector designs and vector software programs may not even be aware that their designs can be stolen and replicated very easily if they aren’t protected with a very specific type of watermark. (That was a mouthful.) Converting an image to vector format can be easily achieved in a few simple steps with some pretty inexpensive software, making an un-watermarked image a prime target. I recommend adding solid (thin) lines across designs, which will make it hard for the watermarks to be removed, and harder for the software to trace the design. It may not look nice, but the art will be much safer than it would be if it was left with nothing. Although adding a business name across the design may help the image from being stolen, some software programs can still trace the underlying art with no issues…leaving the design out there to be converted into a format which anyone can use in any design, and re-size the art infinitely (without losing quality) for their own financial gain.
If you're designing and selling art on a site that has its own licensing terms, make sure you understand the terms completely. If you don’t, you could find your design being sold in a major retailer with no credit and absolutely no recourse to have it removed. Certain terms may also allow your design to be downloaded and used on a Print On Demand website. This may allow users to upload purchased designs and have them drop-shipped to the customer. While this is an amazing new business opportunity, this can almost cut you, the designer out of the equation completely. You'll make money on the design (for example, the $3 you charged for the design), and they’ll make the money on the shirts - in this case, putting little to no work into creating the shirts themselves. (I'm NOT bashing Print On Demand sellers. I know they work hard as well.) I personally set my own licensing terms, and really only sell on platforms that don’t dictate how my designs can be used.
Submitting original designs for official copyright protection on copyright.gov is really the best possible way to protect your art. Designs may not really be worth fighting for unless you can seek monetary damages, and you can't seek damages unless you’ve been given an official copyright number. For more information about how to submit your designs for copyright, you can check out Part 3 of this blog post.
Crafters/Hobby Business Owners, my advice to you is to create your own designs, or buy from reputable sellers. Spotting a reputable seller can be tricky, but typically they have a cohesive style in their designs and storefront. If all else fails, you could check to see if they have designs from larger, well known companies. If they're selling licensed characters and sports teams, the chances are that they don’t understand copyright infringement and you may want to steer clear. As much as you want those Mickey Ears, a small design shop doesn’t have the rights to sell you that image – especially with commercial use. That right belongs to Disney.
On another note, grabbing images off the web and selling them in Facebook groups or on products is very risky. While it may seem “harmless” to use a design for personal use – it is absolutely, 100% NOT ok to sell something using the design and make a profit from the art. Oftentimes the actual designer will find out (especially if they have a large network or if the design is popular… not to mention they’re also creative/crafty people and frequent Facebook groups, too! :P), and the damage could be very costly. I’ve seen stories of people who got served huge “damages” bills, all because they traced a design and sold it in a Facebook group with 10K people, or shared it in a Google Drive. (Selling links to stolen artwork is prohibited by Google: https://www.google.com/intl/en/policies/terms/. Facebook has similar terms.) I recently heard the story of a designer whose $12 design was shared in a group of 10,000 people. After consulting with an attorney, the attorney sent the party who shared the design a bill for $120,000. ($12 x 10,000 people = $120,000.) In most cases, designers truly don’t want to have to do things like this. They don’t ever want to have to sue someone. It’s a huge stressful headache that costs money, but in the end – if they’re right – the benefit is to them if they win.
Lastly, if you sell on Etsy: Please remember that Etsy is NOT a legal entity. They cannot do anything but take legal accusations seriously, which means removing infringing material EVEN IF the designs are not similar. This is what they’re required to do – legally. If you feel like you were reported falsely, you can file a counter notice (Etsy will send you instructions on how to do this, or you can view one of the links above to learn more about DMCA takedown notices). Etsy will not get involved in any legal battles, and they will repeatedly tell you to contact an attorney who can give you much better advice than they can sitting behind that computer screen. ;) Don’t shoot the messenger. That’s exactly what Etsy is in this case – the messenger.
In short, #1 KNOW YOUR RIGHTS, and understand how Copyright and Trademark work.
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I didn’t touch much on trademark law much - trademarks are approved per category. If you're reported for trademark infringement, it doesn’t always mean you’re actually infringing if you’re not selling the design on something that doesn’t fall within the same category.
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Trademark law can be tricky to understand. For example, “Apple” is a trademark owned by Apple computers, but it doesn’t mean I’m not allowed to make a design that uses the word “apple” in it. However, it DOES mean that I can’t create a line of electronics (or whatever else they sell) and sell them under the brand name “Apple.” (There's a lot more to, this, but it's a huge web of information.)
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Trademarks have an opposition period – if you don’t agree with a trademark that has been submitted for approval and it will be detrimental to your business if it’s approved, spend the money to fight it! In the end, you may be glad you did.
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Search for trademarks here: http://tess2.uspto.gov - If you’d like to file for a trademark, it’s absolutely best to hire an attorney. It’s a very complicated process, and it is often done incorrectly if attorneys aren’t used.
#2 BE MINDFUL. It’s not ok to copy or steal anyone’s work – even from the big companies. My motto is “do unto others as you would want done unto you.” Does this mean I don’t get inspired? No. Does this mean I work very hard to be unique without copying others? YES.
Thanks for tuning in! I truly hope that this information was of value to you. If you haven’t already, remember to go check out Parts 1 & 3!
Thanks for tuning in! I truly hope that this information was of value to you. If you haven’t already, remember to go check out Parts 1 & 3!
Have a great week!
Rachel
Owner | The Smudge Factory™