This post is in continuation with a previous post dealing with legal know how for artists in the business of handmade products. You can read Part I here.
A big thank you to all the artists who contributed their pictures towards illustrating this post. All pictures featured here have been done so with the artist’s permission and are images of their original handcrafted work. Please do click the picture/caption links to redirect yourselves to the artist’s page to learn more about the amazing work they do.
How do I protect my designs and art work?
A lot of hand made products are what they are because of their aesthetic value. Whether it’s upcycling bottles by painting an interesting, original image on them, or arranging the beads and gem stones on your handcrafted jewelled peacock ring to capture the colours you had in mind, appearance and your creative discretion in controlling the appearance of your product is often, what sets your product apart. So how do you protect the design?
This is where Copyright works. Now let’s go ahead and throw out some commonly held misconceptions with respect to copyright and see how it applies to handmade products.
(a) Copyright requires registration: Not true. In many countries including India, the legal system allows for what is known as automatic registration. This means that copyright vests inherently in a work of art, by virtue of its creation by an individual who used a certain degree of skill and judgment in the creative process. You can go ahead and register your design using Form XIV on the Indian Government’s Copyright site, but this is strengthening the already existing armour that you have.
(b) Copyright works only for original work: Yes and No. While it’s true that only original works of art are eligible for copyright protection, it is important to remember that the definition of ‘originality’ in the context of copyright law does not mean novelty or a high degree of quality, but instead refers to skill and judgment. Maybe you’re not the first person to have thought of designing customized iPad covers with kittens all over them and maybe those kittens haven’t been painted keeping the higher sensibilities of Renaissance art in mind, but that doesn’t mean your work is not original. What matters is that your creative expression is tangible and was produced through some effort on your part.
(c) Copyright works for ideas: Nope, it doesn’t. This also means that no one can steal your idea because well, you never could own it in the first place. So if someone’s making quilled paper jewellery much the same way you are – well technically no one can stop the other person from making it. If there are specific designs on the jewellery that have been reproduced to match yours – there’s some cause for concern, but overall no one can monopolize an idea.
So what you’re saying is that someone can copy my work and I can’t do anything about it?
Well no – a copyright is meant to prevent copying, but in no way can a copyright be used to monopolize a creative idea. If that were the case, there would be only one person in the world who could create a piece of work. That might sound tempting, but just think of how this would actually harm the creative spirit of other artists – it would create a world devoid of free thought.
So if you’re upset that someone is making jewellery or bags using the same ideas you had – sadly there isn’t too much you can do, unless you can prove that the similarities in your products have been created intentionally to mislead consumers. The more unique your detailing, the tougher it is for someone to copy and replicate your work, and if they do, then well it’s obvious that they’re copying not just your idea but your expression too. If you’ve reached that conclusion, it’s time to send them a legal notice.
Designs you can see, but what about the methods and ingredients I’ve used?
This is interesting – a lot of the times hand made products are so treasured because of the unique methods and substances employed in their creation. If you have a unique technique of production like say a specific way to mould, sculpt, shape, weave an article – then maybe you should consider patenting it. Of course applying and getting a patent can be pretty hard and expensive but would greatly aid you in your struggles to preserve the functional and manufacturing elements of your work. For example, if you handcraft musical instruments, you could think of patenting the technique and the method of production.
Personally though, I’d suggest something far simpler with respect to protecting the building blocks of your work – and that is using trade secrets and confidentiality agreements to your advantage. Now documenting the creative process is important to establish copyright ownership but you can put a limit on what you want to share with other – consumers and competitors alike. Ever heard of a slightly nosy artist friend who wants to ‘learn and observe’ your work – I hate to admit it, but it’s best to be careful who you’re sharing your creative processes with. Do not make information with respect to all your design structuring and ingredients public, unless you’re ok with the idea of others looking to you for inspiration.
With soaps, perfumes and similar handmade products it might be hard to not disclose the ingredients you’ve used because you may want to ensure that your customer knows what they’re buying – but maybe you can keep the proportions of your ingredients, confidential – that way, no one can replicate the exact product you make.
Conducting workshops to impart your unique skills to others? If there’s certain aspects of your work that you’d like to share with your students, but not really anyone else why not ask them to agree in writing that they will not choose to commercially exploit their new found skill, without seeking your permission first.
The idea is simple – you don’t have to overshare when you don’t want to. Coca Cola sure didn’t and up until last year had it’s formulation protected as a trade secret.
How important is branding?
Everyone knows branding is important, especially from a marketing perspective. Branding is important from a legal perspective also in a very similar way. Logos and branding are fundamentally meant to aid consumers in distinguishing one line of products from another. This is important because consumers tend to associate certain characteristics like quality and ingredients with a brand. The legal stuff steps in if someone tries to piggyback on your brand’s success or attempts to market their products under your branding or very similar branding. This is at the core of trademark infringement and passing off – legal wrongs that can be committed with the misuse of branding. So if you find someone passing off their work as yours or affiliated with you – you have cause to pick a legal fight with them.
How else do copyrights and trademarks influence our work?
If you specialize in customised hand made gifts, chances are that you are recreating popular works of art including characters (live action or animated), works of art (Andy Warholesque images), celebrities, logos (Louis Vuitton cakes perhaps) and the like. This may seem relatively harmless except for the fact that all these things are commercial Intellectual Property Assets owned by massive corporations who are completely right in permitting their use only after licensing them. So how do you get around this restriction? Ensure that the recreation isn’t identical or misleading (meaning no knock-offs) and once in a while it’s possible to claim parody and fair dealing (which you can read about here).
Marks are also important to determine quality standards. Here’s a great article by The Alternative on just that.
So last of all, what do I need to remember with respect to a business in handmade products?
If you’re sharing images of your work – please remember that you have copyright over them too. Watermark them to make it harder for others to use your images. In addition, remember that you have a copyright over the ornamental aspects of your work. You may not be able to take action against someone who has a similar idea for their product, but if that someone copies your detailing, logo, markets under a very similar logo, or fails to inform consumers that you are not affiliated with them – have a discussion with your lawyer because this is a cause for concern. Pay attention to your branding- loyal customers love your work and don’t want to compromise over quality, no matter what a competing price might be. If you want to keep something quiet, then do – and most of all, if you’re discussing a new idea or showing a product with a new retailer, get them to sign a non-disclosure agreement ensuring that they don’t use your idea, even if things didn’t work out between the both of you.