01 Oct The Seedy Underbelly
Is it laziness?
For example, you’ve undoubtedly read about how some big-box retailers have stolen some creative designer’s work and marketed it as their own. I guess they didn’t think anyone would notice or care.
Is it self-serving?
A supplier claims something that isn’t quite true or fudges the numbers to make their selling proposition stronger. You’ve met these salespeople before. I know I have and not just on the used car lot either. Ick.
Maybe it’s intentional.
It’s a scam. It’s the cheapest and shoddiest production effort possible. You know, such as with the t-shirt that is bought and like a cruel magic trick the image disappears after one wash.
Or the embroidered hat with lettering you can’t even read. Zero care or effort is put into the production quality. That sure gives our industry a black eye.
I’d like to think that everyone could be on board with their business practices, but that would be incredibly naive.
So what can we do about this as an industry? It’s not like there are any barriers to entry.
All we have is each other.
Picasso once famously stated, “Good artists borrow, great artists steal.” I’m not sure about that, but what’s interesting is the thought of how much “inspiration” creative thinkers inject into their own work.
I won’t sugar coat it, I’ve been inspired by design elements or ideas and used them to create new images, logos or designs.
All creative people have their heroes and muses. However, what I’m borrowing isn’t the entire visual element as thievery…just the conceptual element or idea that I liked. Not the design itself.
Maybe it was how they used a certain texture in the type. Maybe it was how the gradient worked in the background. Maybe it was the idea of using a thicker outline to illustrate the icon or object. Maybe it was using an asymmetrical balance of the objects. Maybe it was using rounded corners like a Steve Jobs flunky.
I then incorporate that idea to interject something new into my own creative process. Along time ago when I was an art director (before the internet, yes I’m that old) I kept an idea book that was crammed full of stuff I ripped out of magazines.
When I needed to jump start my creativity as I was working on the tenth design (or was it the eleventh) for the day, I would leaf through the book, and go “Oh, yeah…do it inside a circle.”; or whatever.
These days I just collect stuff and have it on a Pinterest board for reference. You just never know.
It’s like adding a different spice to your favorite recipe. Throw some cayenne pepper or sea salt onto the same old chocolate and BAM, it’s instantly different.
Another thing, I also like using stock photography as a starting point sometimes.
For example, the illustration for this article. I bought the rights to a photo for a fairly inexpensive amount of money (Fotolia) and then used it as the foundation for the illustration by adding my own elements to the design.
Starting from scratch could be possible, but frankly, I don’t want to invest that much time into it.
I’ve got other things to do, and I spent about thirty minutes start to finish on that piece. It’s easier and cheaper to find a starting point that works for the purpose this way.
Here’s the original photo above. Throw some type together, add a couple tricks in Photoshop and it’s finished.
Bingo. Onto the next project.
This will always be acceptable, and quite honestly, encouraged by busy art departments everywhere. There is an entire industry dedicated to helping creatives with this type of challenge.
If you don’t think so, just Google “Stock Photo”. 368,000,000 results.
What isn’t acceptable though is the wholesale stealing of an entire design. Nothing new is added. It’s just a blatant rip off and five finger discount.
Here’s the difference:
In 2015 Oregon clothing designer Melissa Lay was shocked to discover that one of her designs from her online web store had been stolen and was for sale at Target. A friend sent her a picture of the shirt and congratulated her on getting her designs to Target for sale.
Except, that’s not what happened. Read about her account and watch a short video by Clicking Here.
Has this happened to you? Outraged? Share your story in the comments section below…
The Parody Question
So where does a parody or mimicry of the brand or design fit in? You’ve seen these, I’ll bet.
Maybe even produced them.
Is it ok to take a pop culture idea and twist it to sell a shirt?
What happens when the band, team or movie company wants a chunk of the action or thinks you are out of line? Yes, I know you’ve seen Star Wars…but does that give you the right to market your own line of Boba Fett shirts? Mash-ups are big business.
Threadless has a good legal page that defines their viewpoint. Click Here to read it.
What about more commercial brands?
Some college fraternity appropriates the Jack Daniels logo for their shirt design because they think it’s a good idea to align themselves with the brand aesthetic of that particular bourbon. Maybe not in their best interests from an insurance liability standpoint, but it’s what they want.
Is this type of shirt design a good idea for a fraternity? Should you take that print job? While that’s for your shop to decide, personally I think it’s just a lazy form of creativity.
How many thousands of shirts like this are printed every year? To me, these types of designs occur because nobody could think of anything better to use as a creative motif for that Fall Hayride.
Is it wrong? Meh. It’s just the path of least resistance. It works because it sells.
Until there is a problem that is…
Just recently the retail store Forever 21 was sued by Harley-Davidson for marketing a motorcycle jacket that incorporated their famous bar and shield design. Forever 21 developed something similar and used a different text, but it was created to invoke the Harley-ness of the jacket without actually getting permission or licensing from the motorcycle company.
If somehow I got to ask a question to the Forever 21 creative team, it would be “Is that the best you could do? That’s it?”
What about your shop?
Are you ever worried about Jack Daniels, Harley-Davidson or another brand firing a shot across the bow at your shop? Be careful. They are going to protect their brand.
After all, their lawyers need something to do every day too.
Shout From Social Media
What if someone is stealing your creativity like Melissa Lay? What should you do?
First, I think it is important to grow the awareness of the problem. Our fellow businesses in the industry need to be alerted to these problems just from a networking standpoint.
Sure, we’re all competitors in a way, but we’re also a fairly tight-knit group. I’ve always loved the fact that we look out for each other and can band together for a common cause.
Intellectual property theft is a cause as good as any other.
If we can call attention to these instances when we see them, I think the social pressure and embarrassment might push more people to act ethically. How do you think the top brass at Target or Forever 21 feel about that negative publicity they received from the press?
Silence from us emboldens them.
They think they can get away with it because “nobody says anything”. Although it is probably a case where someone built the file and nobody with any sense approved it.
Asleep at the wheel I suppose.
Frankly, I’m a little shocked that Target or Forever 21 couldn’t think up something more original. If they are that tapped for ideas, I’m sure there are plenty of people that could assist them in their effort.
Next Step – Legal Recourse
If you find your designs have been stolen there are a few ways you can go about protecting yourself. A warning though, this can get costly so try to do things in small steps at first. If you can, always seek out the advice of an attorney.
One first step is a simple “Cease and Desist” letter. If you can’t afford to have a lawyer draft this for you, consider talking to a nearby law school or legal bar association for some pro bono help.
Intellectual property infringement and copyright challenges can be sorted out sometimes with this first step.
Copyright law protects the fixed expression of ideas, which means your design. If you have produced your design, or published it for sale online, copyright is immediately invoked. Here’s the thing to remember, although you aren’t legally required to register your work with the Copyright Office to secure the copyright, you will have to register your work before filing a copyright lawsuit.
Registration is always a precondition for bringing an intellectual property infringement lawsuit.
However, going with the infringement lawsuit can be an expensive proposition. For small business owners or designers, a cheaper alternative may be to consider filing a motion for a temporary restraining order or preliminary injunction if your cease and desist letter doesn’t work.
The temporary restraining order and preliminary injunction are the legal tools that can be used to stop the production, distribution or sale of the infringing design in question. While this isn’t a lawsuit that will grant you monetary damages if you win, it will stop the sales of your design from the other party.
That big lawsuit you want to file? Think twice.
Are you ready for a prolonged drama that could take six months to a year? It’s not a guaranteed slam-dunk win either. What happens if you lose? Do you have the bankroll to finance that with your legal team? Sure you might get awarded some money or even a settlement.
Talk to a lawyer that will give you good advice regarding your best interests.
Quality Production Values – You Either Have Them or You Don’t
Shifting gears here, what do we do about shoddy work?
Personally, I love seeing pics online that demonstrate some challenges with the quality of some apparel item for sale in a store. It always induces that “Ha! Ha!” grin with me, as I know that I would never let that out into the world if I was responsible.
But someone did.
Just like there are horrible auto mechanics or restaurants that serve burnt food, there are going to be shops that push out inferior work. (I know, I know…it’s not you)
It’s up to us though to call these people out. At least let the folks in charge know there is a problem. It’s like telling the restaurant manager that your medium rare steak was served as a charcoal briquet.
They can’t fix it if they don’t know about it.
I’ve been in stores before looking at some embroidered logo or screen-printed piece. The images are off center or out of registration. Once a clerk in a retail store in Orlando noticed me pulling on the fabric to stretch the print to see if it cracked and asked me what I was doing.
My friend that was with me said, “He’s the t-shirt police and you are under arrest!”. Funny.
Crappy work happens more than you think. My son is attending a new school and received his PE uniform the first week. They were so unbelievably poorly printed I couldn’t believe it. The print on the t-shirt front was crooked by at least an inch, and the school logo on the shorts was bullet-proof, but the PMS 123 gold still wasn’t opaque on the royal blue polyester fabric and even had a thread line in it. Two garments, three problems. When I said something to the school they didn’t even know there is a recourse for this sort of thing.
There Is Hope
Just remember, you are in control of your shop’s actions. Discuss ethics with your art staff. Explain the importance of being intellectually honest with your creativity and difference between stealing and inspiration.
What is the right thing to do?
Talk to your staff about the reason why reputation is important. What are you known for? Do you let poor production quality out the door, or do you govern that and have a process? Some shops will just ship anything and cross their fingers that it won’t come back to haunt them. Is sticking that misprinted shirt into the pile worth it in the long run when your customer drops you?
What is your shop known for in your circles? Awesomeness?
Believe it or not, some shop owners aren’t even really aware as to what goes on out back in production, or even what quality looks like in reality. They just don’t care enough about it until it’s too late.
Do you know what your employees are shipping? Maybe that customer doesn’t complain to you, they just take their next order somewhere else.
People vote with their wallet. Keep your staff accountable for their actions.
Sing in your own voice.
Reference: Art Law Journal – a great website dedicated to copyright law and infringement issues for artists. Check it out by Clicking Here.
“No legacy is so rich as honesty.” – William Shakespeare
“Ethical decisions ensure that everyone’s best interests are protected. When in doubt, don’t.” – Harvey Mackay
“Be a yardstick of quality. Some people aren’t used to an environment where excellence is expected.” – Steve Jobs
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