It’s a designer’s worst nightmare. Having spent months or even years researching and developing a new product and bringing it to market, imagine the despair of discovering that someone else has ripped off that product and is now selling it themselves at a fraction of the cost. Well, this is more than just a nightmare. For designers all over the world, this is reality. Copying in the creative industries is big business and all the images featured in this post are examples of iconic designs that are repeatedly reproduced and copied. Designers today need to know how to protect themselves from having their intellectual property stolen and exploited.
Knowing that so many of our readers are designers of some kind or are working in the creative industries, we decided to put together a post offering advice on just how to protect yourselves from copying and what to do if you are unfortunate enough to fall victim to this heinous crime. What better way to do this than to consult an expert!
Dids Macdonald is the Chief Executive Officer of ACID (Anti Copying in Design), a membership organisation committed to raising awareness about copying in design and encouraging respect for intellectual property and originality in design. In July 2011, Dids was also appointed Vice Chair of the Alliance Against IP Theft. Freshome asked her the questions that every designer should be asking and here is what she had to say:
What is ACID and how can it help designers?
DM. ACID (Anti Copying in Design) is a membership organisation, committed to raising awareness and encouraging respect for intellectual property within corporate social responsibility. The whole focus of the organisation is on education, prevention, deterrence and support on intellectual property issues.
ACID is determined to communicate via its powerful brand, value in originality in creative design so that designers can translate their creative skill into tradable intellectual property, safely and from a position of strength. We encourage all designers to have a positive proactive intellectual property strategy.
DM. My background in the design industry was initially as an interior designer and designer maker. I was dealing with very high-end, niche market interior decoration on a global basis and every time we brought out a new product it was ripped off. Consequently, I was spending an awful lot of my time fighting huge battles from a position of very little intellectual property knowledge or education.
It was mainly the major high street retailers and manufacturers, many in our own backyard, that were copying us, which was very dispiriting. So in 1996, I decided to organise a round table discussion with a few others to discuss the problem and decide what we could do about it. I sold my business in 1999 and founded ACID, which now has about 1000 member companies, from micro to macro, in about 25-30 different sectors within the creative industries.
One of the problems that I experienced as a designer is that intellectual property law seemed very complex. I didn’t understand the language and I didn’t understand what I could do to communicate an anti-copying message. And this was something I was determined to change through ACID.
DM. Our hotline is always very busy and we get lots of calls from people who have had their designs copied. What we find is that once a creative or particularly innovative product is launched, there are inevitably those who don’t have the budget for design research and development and they will therefore simply fast track to market by looking at the latest products. They will usually take the time to check that the product is successful in its first year and then they swoop.
Unfortunately a lot of copying happens right on our doorstep. Some high street retail buyers will look at what the innovators are doing, adapt those products slightly and bring them out themselves at half the price. Sadly, when designs are changed sufficiently it is often difficult for small niche traders to legally challenge these big retailers and many small companies or individual designers don’t have the money to pursue infringement cases. But it is not all gloomy. In the past few days, ACID has helped resolve six cases and most of them have been resolved with a simple “letter before action” or “cease and desist” letter.
DM. I am an example of somebody who nearly lost their business, so copying can cost you your livelihood. My business was founded on my creative skill, which was translated into tradable intellectual property. But if others are producing your design and then selling it for half the price, your market will inevitably be eroded and this can be a huge threat to your livelihood.
What should designers do in order to protect their work from intellectual property theft?
If you don’t want people to copy your work you have to say so. This is why we developed the ACID logo. When used it sends a very clear message and acts as a standalone communicator. You don’t need to be a member to send a positive anti-copying message but you do need to be a member to use the ACID logo.
We recommend that people use it on their websites and marketing material along with a short statement explaining that intellectual property infringement will be taken seriously, such as “All intellectual property rights in our designs are and will remain the property of (insert your name here). Any infringement of our rights will be viewed seriously.
Designers really need to be proactive about their intellectual property strategy. They need to understand the basics of how to protect their work. And most of the practical things they can do actually don’t cost anything.
For example, ACID has just introduced something called IP Tracker, which is available to members and non-members. So if a designer needs to send a copy of their latest design to a potential buyer or manufacturer for example, they can use the ACID IP Tracker to send it. The recipient then cannot download the design to view it without first agreeing that they will comply with your terms and conditions and will not copy it or pass it on to a third party. Once the recipient confirms this, you will be sent an acknowledgement of delivery and a copy of the email is automatically downloaded to the ACID server.
DM. As designers we are not terribly good at standing up for ourselves and there is very little intellectual property training within design education. Many designers are therefore quite naive when it comes to marketing themselves and their work.
With regards to websites, it certainly helps to use low resolution images, to disable the download function for images, or to only put a taster of the design online and not all the details. Another option is to include some kind of data capture mechanism on the website so that anybody who is interested has to leave their details before viewing or downloading the designs or images. That way at least you know who has had access to your work.
How can designers prove that somebody has copied their work?
DM. It is very important that designers sign and date all their work. We encourage our members to ensure that they keep a note of all the significant stages of the design process. Signed and dated photographs and copies of designs can be sent to ACID cost free in order to chart your design audit process.
If designers are relying on unregistered designs, ACID has a design databank which holds about 300,000 copies of members’ designs. It’s all about proving when you designed it so you need to implement a design audit trail. When you have been copied, the most important thing is compelling evidence so that you can prove your design ownership.
If you register your designs, proving they belong to you is fairly easy, but many designers are working at such a prolific rate that they can’t afford to register every design. But our advice is for designers to work out which of their designs will be the most successful and then to register them, ensuring that they have the budget to take action if those designs are copied.
DM. The first thing is not to panic. Then you need to gather your audit trail, so collect all the information that you have that substantiates your design. Next try to get hold of an example of the copy and get a receipt for it. Then work out how many you believe have been sold and work out the quantifiable loss to you. Once you have all this information you should consult an intellectual property specialist lawyer to find out if your rights have been infringed and what you can do about it.
One thing we always say though is never sue on principle. You must always try to demonstrate some kind of quantifiable loss. You need to have objectives and know what you want to achieve and choose your actions carefully. For example if your competitors are ripping you off, they need to know that you are aware of what they are doing and in many cases a simple letter before action, stating your design ownership, is enough to get them to stop.
What we do as an organisation is to name and shame the copiers. We publicise it on our website and through social media. The various sectors we work in are quite small even though they are often global industries and nobody wants to be identified as a copier.
The bottom line is that you can’t stop people copying, but you can put a lot of deterrent measures in place to raise awareness of the importance of original design.
DM. Many people confuse a patent with a design registration. A patent protects inventions that constitute technical improvements. It has to involve an inventive step and it lasts 20 years.
A design registration covers the shape, contour, lines, colour, texture or ornamentation of a product. It lasts for 25 years and can also be protected in the 27 EU member states. Renewal fees are due every five years.
Copyright arises automatically and exists in artistic works such as paintings, drawings, fabrics, diagrams and photographs and these are protected irrespective of the artistic quality. The ownership of copyright rests with the creator or their employer and it lasts for a maximum of the life of the creator plus 70 years.
Does ACID have any exciting developments in the pipeline?
DM. In January 2012, we will be launching a campaign called “Commission it, don’t copy it”. Rather than risking being challenged and therefore damaging the reputation of their brand by being named as a copier, we would like to see large retailers commission the UK’s thousands of talented designers and pay them royalties on the goods that are produced. That way the retailer is seen to support design talent, the designer gets rewarded for their creativity, which incentivises them to keep designing, and the consumer gets a good deal because there is more variety in the market. So this is a new development to watch out for.
We will also be extending our reach in 2012 to provide similar services to designers in various other European countries and in the United States.
DM. Firstly, educuate yourself about the intellectual property rights that protect you. Secondly, put deterrent and preventative measure and strategies in place. And thirdly, be positive about the tradeable intellectual property that you create and ensure that you get rightly recompensed for your work.
Freshome would like to thank Dids Macdonald for sharing her experience and knowledge on this important issue. For further information on protecting yourself from copying in design you can visit the following websites:
Anti Copying in Design
Intellectual Property Office
The European Patent Office
World Intellectual Property Organization
The Office of Harmonization for the Internal Market