Three experts answer your copyright questions

What should you do if someone copies your work? What can and what can’t you make? Is it ok to be inspired by films and popular culture? If you’re a designer or maker, copyright can feel like a legal minefield. To help answer these questions and more, we held a #folksyhour Twitter chat on the topic of copyright and intellectual property, and invited along three expert guests. Here is a summary of your questions and their answers.

Our guests were Niall Head-Rapson, director of McDaniel & Co, solicitors who specialise in intellectual property law and are an ACID legal affiliate; Silvia Baumgart who leads Own-it, an educational organisation based at the University of the Arts London that offers free advice on copyright, design rights, trade marks and licensing for creatives; and Louise Verity from Bookishly, a designer with first-hand experience of copyright issues which she wrote about here.

 

What’s the best way to protect your work as a small business?
Suky Rai from LuKeeSu Handmade asked: “How can you realistically protect your work as a small business?”

  • The best way to protect work is to keep good records as you need to be able to prove you are the original author. So keep records of your ideas, your designs and their dates, and, if possible, get someone else to sign them off or use a copyright bank such as ACID.
  • Check with a lawyer what rights you have. McDaniel & Co specialise in intellectual property law, and Own-it works with several law firms to provide free individual IP advice through its website. Find out more here. You can also join an organisation like ACID which campaigns for designers’ IP rights.
  • Pick your battles, know your rights and how to use takedown notices, and understand the IP on your selling site (for example, the VERO program on eBay that takes down the advert for sale and can put people off copying your work as sellers run the risk of being banned from the site).
  • Be aware that if you accuse someone of copying your work and you get it wrong they can sue you back.

 

How do you deal with companies abroad selling products made with your designs?
Hazel Hughson from Leathermeister: “How should we deal with companies in China & India using watermarked pics of our designs and offering them for sale world wide?”

  • If it is on a website, send a take down notice to the web host. The web host should remove the picture or take down the website. As most of these companies just advertise for orders rather than have any that are made, a takedown notice is usually effective.
  • Monitor your markets to see if the goods are being imported (it’s easier to take action in your own market).
  • The China IPR SME help desk has a free helpline, which small businesses can use if they have issues with China or want to know more about protecting their rights in the country. Find more information here. There is a similar organisation in Southeast Asia.

 

Using quotes from film, television and books in your work
Rebecca from @hello_beccy: “How do you know which quotes from Film/TV/Books you can use freely in your work?”

  • Copyright last for 70 years after an author has died, so if the quote is older than that it’s ok to use it.
  • If the author is still alive, it depends how much and what you take. One of the determining factors isn’t just how much you take but the ‘quality of the part you take’, eg. if you take the core of the piece or an element of it.
  • It also depends on what you are using it for – if you use quote for reporting news, that’s fine, but if you want to use it on a product, then you may infringe copyright and need permission.
  • In general, you need to take advice before quoting someone else’s words in your work.
  • Be careful when using someone else’s words because while some owners don’t enforce their copyright and are happy to let people use it, others may take action.
  • You can usually find out who to contact for permission from their website or Facebook page. An email to them stimulates contact. For quotes from films, it will normally be the film studio [the producer].

 

How does copyright affect illustrations based on popular culture?
Sally from Sally & the Freckles: “What’s the situation re drawing characters from films, for example actors playing a role?” 

  • All characters are covered by copyright or design right or even trade mark protected, so you need permission.
  • For illustrations of real people (eg if you want to create an illustrated brooch of Benedict Cumberbatch), it depends on the attitude of the celebrity.
  • Although it’s often ok and seen as low risk, using a someone’s image without their permission – even if it’s your own illustration – can be deemed as ‘passing off’. ‘Passing off’ is where you associate someone (eg. a celebrity) with your own product or service in order to use their reputation to your own advantage without their permission.
  • This case of Rihanna vs Topshop is a good example of what is considered ‘passing off’. In this case, it was a photograph of Rihanna, but even if Topshop had commissioned an illustration of her and sold it on a Tshirt, Rihanna would still be able to complain and win.
  • Simply marking your product as ‘unofficial’ or ‘no way affiliated’ DOES NOT get around the issue of passing off.
  • If it is drawn from a photograph, be aware that it may also infringe on the photographer’s copyright. A photo is a copyright work, so don’t copy it in any medium.
  • The general rule here is: Don’t ride on other people’s reputation to sell your work.
  • For more advice on using images from a movie, read this factsheet.
  • If you’re in any doubt, ask a lawyer to advise you whether your images infringe on IP. McDaniel & Co can do an audit for you.

 

Is it ok to sell products made from repurposed books?
Charlotte from The Forgotten Library: “I repurpose old books and use the Penguin logo in hair pins. Is this a potential copyright issue?” 

  • If you are physically using books you own and not reproducing anything, then it’s fine.
  • Using the the Penguin logo is not a copyright issue but IS a trade mark issue and is potentially serious.
  • Be wary about using Ordnance Survey maps in your work too: they are strict about their IP ownership – don’t copy them. Visit their licensing department for more information.
  • The same applies to the London Transport Tube map and logo, and the New Johnston font. These are all protected by copyright or design right and you need permission to reproduce them. Find out more in the London Transport Map Licensing Section.

 

What are the rules on selling work made from other people’s fabric? 
Liz from Big Bird Little Bird: “Can someone make something out of Disney and Marvel fabric and sell it?”

  • If you bought the fabric, you should be able to unless there are special terms or the fabric includes trade marks, which you cannot use to sell your products. If the fabric doesn’t include trade marks, then you can sell something made from it under normal circumstances.
  • Check the fabric selvedge for terms of use.
  • Products made from Orla Kiely are for personal use only and must not be sold.
  • Be aware that any patterns, kits, stencils or stamps also have terms and conditions for sale, which you must also adhere to. The IPO have just published a useful factsheet on copyright in patterns.
  • Here is a list of brands and companies who have contacted Folksy in the past to complain about copyright infringement and who police their IP rights vigorously.

 

If you suspect another maker has copied your idea or design, what’s the best first step?

  • Seek legal advice.
  • Contact the other party and ask them how they came to their design as it looks like yours.
  • If you can’t face that, then ask a lawyer to write to them for you.
  • Don’t accuse another maker of infringement unless you are sure, even on social media – accusations can cause a lot of distress and you could even be sued (see the case of a Blackpool fan who had to pay the football club £20k in libel).
  • Be careful about what you say and get professional legal advice before you go public.
  • Remember to try not to take it personally and to be realistic about what can actually be done. Sometimes just picking yourself up and getting on with your own thing is the best thing to do.

 

Can social media/peer pressure be effective tools for solving copyright disputes?

  • Social media can be a great tool if you know what you are doing.
  • Social media is particularly useful when the person is concerned over their reputation, as in the case of Rachael Taylor and Marks & Spencer.
  • Before you take to social media, know your rights, take advice, be factual and don’t get angry.
  • Be very careful about what you say – see this Facebook post by Louise from Bookishly as an example of how to post your concerns.

 

Look out for a series of posts delving a little deeper into the specifics of copyright coming soon. In the meantime, if you have any more questions about copyright for designers, add them to the comments below, and we’ll see if we can help.

(Featured image: Call of the Wild Clock by The Forgotten Library)

 


 

If you want to join in future #folksyhour conversations, you can check our list of upcoming topics here >> and catch up with the #folksyhour conversation about copyright and IP in full below…

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3 Comments

  • May 7, 2015

    sianuska

    this makes for interesting reading, thanks for sharing. i have direct experience of the copyright issues surrounding the use of song lyrics. i made a screen print of the lyrics to a song as a gift for a family member and then put the extra prints (15 or so) in my folksy shop​, they were VERY popular and sold out quickly after one of the authors of the lyrics shared the print on social media. to make more i needed to obtain a licence from the owner of the lyrics the industry standard for full usage is 5% of the retail, i was happy to pay this but one of the authors wanted more, 25% of the retail, which i couldn’t afford. i know lots of people use song lyrics in their art, i’d reiterate (as mentioned in this folksyhour discussion) that this is a breech of copyright, i had no idea!

  • May 13, 2015

    Robert Strange

    I draw soft toys squashed into boxes. They were bought from McDonalds, some are Disney others Smurfs etc. how do I get permission to sell my prints of these toys squashed in a box? I want to make this a business but feel confused as to what I can and cannot draw.

  • […] Three experts answer your copyright questions […]