You have more powers than ever before to strike back if your work is used without permission
Picture the scene: you’re mooching around a clothing store, when something oddly familiar catches your eye. A T-shirt has a design that looks distinctly like your artwork, but you don’t recall giving anyone permission to use it.
It’s an awful, gut-wrenching feeling to discover your work has been ripped off, but as of October, you have a new tool at your disposal in the fight against copyright cheats. The government has launched a small claims court for intellectual property disputes, including copyright theft. For the first time, this makes legal action a realistic option for freelancers who may previously have struggled to afford the lawyers’ fees and risk of a full-blown court case.
Think the situation above sounds far-fetched? Tales of creatives discovering their work has been ‘borrowed’ are depressingly common, and sometimes the brands accused of pinching designs are household names.
In October, designer Kate Moross took to Twitter to claim that a sweater sold by Topman sported a tribal motif that greatly resembled a design of hers. The sweater was hastily withdrawn and the retailer announced: “Topman takes very seriously the protection of its own intellectual property rights and accordingly respects the rights of others... This matter has now been resolved with Ms. Moross to the mutual satisfaction of both parties.”
And in February, jewellery brand Tatty Devine highlighted five separate necklaces sold by teen favourite Claire’s Accessories that bore a striking resemblance to its own designs. After another social media storm, the high-street chain agreed to withdraw some designs and reached a confidential agreement over the others.
Such tales aren’t confined to fashion, either. In 2010, illustrator Hidden Eloise went public with claims that a product range stocked by stationery chain Paperchase closely resembled her own design, He Says He Can Hear the Forest Whisper. The retailer said the designs had been provided by an outside agency, but that it was investigating.
These high-profile examples are only the tip of the iceberg. Blogs such as You Thought We Wouldn’t Notice highlight countless examples of creatives posting what they believe are knock-offs of their work, adapted for garments, posters, apps and almost any other purpose imaginable. The works run the gamut from strong stylistic similarities to straight copy-and-paste jobs – although in other cases it’s easy to see how the designs just look like each other by coincidence.
If you’ve created a design, you own its copyright, unless you’ve assigned it to someone else, such as your employer or client. This entitles you to control how your work is used and to be acknowledged as its creator.
An image doesn’t have to be an exact copy to infringe copyright. “The test is whether a substantial part has been used. There’s no set percentage test,” says Robert Lands, an intellectual property lawyer at Finers Stephens Innocent. “It’s about quality, not quantity. So it could be just a small part of the image... it applies even if they have adapted or added things, or changed the colours.”
It’s often possible to resolve such issues without heading into legal terrain.
“Sometimes it will be ignorance – it’s worth a softly-softly approach and explain they require a licence,” says Derek Brazell, of the Association of Illustrators. If it’s a genuine misappropriation of work, they might confess.” He recommends a “businesslike but friendly” letter as a first step.
“If you do get in touch, it’s important not to send them an invoice... When you send an invoice you’re limiting your potential damages. You don’t know how many T-shirts they might have sold,” urges Robert.
“Explain that it’s your image and tell them to stop using it. Ask them to tell you exactly what they’ve done with it and ask what they propose to do to make amends – I’d always put it in their court first,” he continues.
“You could either request the sum you’d expect for a licence, or add an additional sum for distress, but it’s sensible to go in at something that’s affordable for the organisation,” recommends Derek. Striking such a deal often means accepting a confidentiality agreement too.
If you do enter into negotiations, state clearly that this is “without prejudice”, advises Robert – this keeps your compensation options open if you do end up in court.
Treat the temptation to lash out online with caution, Robert says. “If you publicise the dispute before negotiation, you’ve blown your advantage. Companies want to protect their reputation, which can really help negotiations.”
“The threat of letting people know about it is quite powerful,” agrees Derek. “Although you need to be very sure what you say is true.”
Wrongly accusing someone of stealing your work could “massively backfire” and even get you sued for defamation, Robert cautions.