When LA-based illustrator Tuesday Bassen took to social media to call out fashion retailer Zara for allegedly copying her work, the overwhelming response was most probably not what the Spanish chain was expecting. Not only did she share a series of uncannily similar images of her designs alongside Zara’s, but also the company’s response letter to her claim of copying, stating “the lack of distinctiveness of your client’s purported designs makes it very hard to see how a significant part of the population anywhere in the world would associate the signs with Tuesday Bassen.” Quite the opposite, as designers, media and supporters internationally have since jumped to Tuesday’s side, reigniting the ongoing debate surrounding designers’ copyright.
So what if it happens to you? William Miles is a solicitor at Briffa, a London-based legal firm specialising in intellectual property and information technology for creative businesses, and has outlined below how to protect your ideas and what to do in Tuesday’s situation.
The recent case of illustrator Tuesday Bassen against multi-national fashion brand Zara is an all too common tale of David vs Goliath in the intellectual property world.
The independent designer on the one hand, claiming that her original work has been copied, and the large retailer on the other, using its sheer size and reputation to stifle any legal claims, often leads to a win for Goliath and a crippling legal bill for David. How then, can this be avoided and what should designers, illustrators and creatives do to stop it happening to them?
Protect your work
The first step is to decide which elements or your work are a) original and b) protectable. It’s important to remember that there are no intellectual property rights in an idea, only the expression of the idea. When deciding how best to protect that original expression you should consider the following terminology, and which to apply to your work:
— Protects illustrations, text, music and film. Doesn’t need to be registered in most countries, although the USA is a big exception. Gives you the right to stop copying (admittedly an unimaginative name).
— To help show that you are the owner of the copyright in your work, consider adding a copyright notice eg. © It’s Nice That 2016.
— Protects brand names and signifiers of business origin. These are mainly logos or words and they can be registered for periods of ten years at a time with an indefinite option to renew (as long as they’re in use).
— Unfortunately there is no such thing as a worldwide trade mark and so you will need to pick the countries that are most applicable to your trade. Many UK businesses favour a European Trade Mark (EUTM), which is enforceable in all member states. However, post-Brexit, its applicability is less certain. The position with EUTMs hasn’t been worked out yet (Boris had other things on his mind) but the common view is that there will be a right to convert your EUTM into the UK even if we say goodbye to our friends on the continent.
— 3D shapes and some 2D designs. Normally used to protect the overall appearance/design of a product. Provides both unregistered (short term) and registered (long term) rights.
— Unregistered designs work in a similar way to copyright in that the rights exist automatically. Registered designs are more like trade marks and you can register your rights in the countries that are most applicable to you.
— The registered right that everyone wants but very few get. New and unique inventions only; think Dyson vacuum.
— These rights are a bit more complicated than trade marks or designs as quite a lot work needs to go into defining your invention and checking existing registrations. However, once registered, a patent can be very valuable.
— Trade secrets and undisclosed intel, one of the most famous being the recipe of Coca Cola. Confidential information isn’t registered but it can be protected with a Non Disclosure Agreement (NDA).
— Make sure you secure a signed NDA before you disclose anything confidential, particularly if you’re talking to potential investors, clients or partners.
Take swift action
If you do discover that someone has copied your work, whoever they are, you need to do something about it as quickly as possible. Be fast and firm as it is much harder to stop copying if it has been going on for a long time or if you’re not shouting loud enough.
Consider asking a solicitor to review your claim and prepare the first letter (make sure they fix their fee in advance). The letter can then be used as a benchmark in any settlement discussions and should mean that you are negotiating from a position of strength.
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