This week, Rhianna successfully sued Top Shop for printing a photograph of her on a vest. They paid the photographer for the image, but because Rhianna is a celebrity, even though they were legally in the right, she won the case and will receive millions in compensation. This is because it looked as if they were trying to recreate official merchandise, or that in some way the singer endorsed the shop and/or vest. Yes, even though they bought the photo from the photographer, because it’s of her, she’s still entitled to say how it will be used. It’s called ‘passing off’ and is why a fake designer bag is also illegal.
I shared this blog post about the whole thing, because the tips are useful – it got me chatting with a friend about intellectual property, and how we’ve both been feeling a bit weird about it this week. As she is busier than me, and my thumb is swollen so anything I make is a bit shonky, I decided to do more research and satisfy us both on where the line is drawn, or should be drawn, and who might be on the wrong side of it.
I’m still amazed that anyone believes you can just use any image from the internet for whatever you want – this is discussed in the post I’ve linked to above, but in case you can’t be bothered reading it, just because something is online, doesn’t mean it’s free to use. If you need an image for a blogpost, for example, you should search for royalty free images.
I’m often asked why I won’t print out images myself to make into badges – and it’s because of this exact problem. If someone brings me a print out, I assume they own the right to that image, and if they don’t, it’s not me that’s done it. It’s a narrow line, but one I respect. I will NEVER print out images of a singer, actress, film scene, whatever – any that I do have are taken from recycled books and magazines. If I’m lucky enough to have an image of the singer you want in my box of circles, that’s different.
Or is it? If I use a cut out from a magazine of, say, John Taylor of Duran Duran (as I did last weekend), is that really ok? Is John Taylor going to find Sonia and make her get rid of her badge because he didn’t say I could use it?
Well, I’m not trying to pass off the badge as official merchandise, for a start. Sonia made the badge out of the circle because she liked John as a teenager. I also didn’t print it out, and the photographer got paid, in the 1980s, for the photograph by Smash Hits – they then printed it, I bought the magazine, which is now in pieces. I’m not trying to profit from the image, it was just the one she chose for her badge.
There are people online who make stuff who don’t care as much as me about this. I’m not going to name brands, but there are jewellery makers who print images from films and put them into jewellery – all the time, but especially for Hallowe’en. I’ve lost count of how many Addams Family necklaces I’ve seen on Instagram this week, and I am absolutely sure the copyright for the images belongs to Metro-Goldwyn-Mayer, because I’ve checked IMDB. If the jewellery maker responsible has been in touch with MGM, I would be immensely surprised.
What about jewellery, and other clothing and accessories for that matter, which is ‘inspired’ by something? This is where things start to become blurred. If you’ve heard of Black Milk Clothing, you might have seen that they made Star Wars ‘inspired’ clothing, which led to a cease and desist order from Lucas Films – luckily for them they had the money to buy the rights, and continue to make the items, and presumably haven’t been so naïve about other ‘inspired’ items such as their Tolkein leggings.
However, not every ‘kitchen’ maker can afford to just buy the rights for a film, so we have to learn how to police ourselves. Most crafters won’t make anything with images from Disney, Lego or Harry Potter, but this ought to follow for every company, and we should give consideration to everything, not just the ones we know have good legal departments.
If you want to know what I mean, go to Etsy, and search for ‘fifty shades of grey’ – I’ll give you a minute.
I’m sure it’ll look different every day, but today I can see many things with handcuffs, ties, masks, quotes and the actual book cover on them. Are they all violating the copyright of the book? I’m sure you’ll agree with me about the book cover being a breach – but the quotes from the book, terrible as they are, are also under the copyright of the author – and whilst you may argue she’s earned enough from that book, the words are still hers, and stamping them on a piece of metal and clearly advertising it as them being words from the book is surely breaching copyright.
That was a book, and until the film finally comes out, they’re aren’t any photos of the fictional characters. Now let’s try that search with, for arguments sake, Breaking Bad. As it’s a TV show, there are screencaps from the show online, and I chose this particular show because I have a particular love for it, but also a possible problem with something I’ve produced.
I’ve been drawing ‘bromance’ designs and printing them as cards for about a year now, and recently had one design based on Breaking Bad removed from somewhere because of copyright issues. Because it’s a stylised drawing I did myself, I had never considered this before, but now it makes me wonder if I’m breaking copyright rules all over the place. I thought a playful homage which doesn’t use real photographs would be ok – but it’s using someone’s likeness, and, like Rhianna, Bryan Cranston and Aaron Paul could in theory sue me for making it look like they endorse my greeting cards.
Let’s go back to Etsy – there are 3000 items tagged with Breaking Bad, from t-shirts and greeting cards to prop replicas and jewellery. Some of them are ridiculous, some are genius, and in my eyes, I think I know exactly which are infringements of copyright and which aren’t. The real issue is that most people will see where the line is drawn differently, and I bet every single item is a breach.
This t-shirt it’s clear to see simply cannot be endorsed by Aaron Paul. The cost alone should be enough of a clue, but the fact they have loads of t-shirts with photographs of famous people on them means they probably haven’t given a thought to who owns any of the copyright.
I can guarantee these stitch markers aren’t breaching any copyright – I’m also amazed that the maker managed to find a gas mask charm. This necklace on the other hand uses a photograph of Bryan Cranston in character, which seems unfair to the photographer, actor and the person who wrote the character to be honest.
What about this print? It’s a print of an original drawing, so it should be ok… but it still uses Bryan Cranston’s likeness, so is it a breach?
The trouble is, again, you’re probably going to say, ‘they’ve made enough money with that show, who cares?’ – and I’m inclined to agree. What I have a problem with is small designers being ripped off. We see a lot about big companies stealing independent designs, and I totally agree that needs highlighting. But what concerns me more is when small companies are ripped off by other small companies.
This theft doesn’t seem to be talked about as much. I’ve started writing blogs about 3 different independent companies in the past who I believe are the wrong side of the copyright line, both stealing from big brands and from small companies, and every time I’ve decided not to finish them. It seemed like sour grapes because they made jewellery, and I also couldn’t be sure absolutely everything I made was the right side of the copyright line and didn’t want to seem a hypocrite.
In my experience, someone who isn’t at least a little bit concerned about using a photograph of Bryan Cranston, won’t have any qualms about what they use from ANY source. They might end up using an illustration by one of my friends, or a photograph taken by one of my friends, or a photograph of one of my model friends – and not feel any remorse about it. I’m not suggesting it’s malicious at all, I merely mean I don’t think they’ll have given any consideration to it in the slightest.
I think the point of this blog has become this – just think about intellectual property rights when you’re making items. If you give it even the slightest bit of consideration and decide you’re on the right side of that blurry line, go for it – but I urge you to make sure that if you are using an image you didn’t photograph yourself that you think about the person who did.
Someone who would like to remain nameless has asked me to point out a small company who is nicking other small company designs. Funnily enough, it’s someone I nearly wrote a blog about.
This time, I feel I can easily post the links to these two items, because it’s blindingly obvious.
Cherry Loco have a shop full of varying designs using items from films and television, such as Harry Potter, Star Wars, Superman, Minions, Nightmare before Christmas, to name but a few, and she has recently listed this
The fact it’s named ‘leapard (sic)’ is just further proof that Berkley produced the original image.
It seems to me that the theory that someone who will steal images from big businesses will have no problem stealing from small designers holds true, in this case at least. Embarassingly for Folksy, she is a featured seller on the site – I’m not sure how that slipped through the net.