Someone has contacted me asking how I dealt with another jewelry designer who had copied my work. I'm posting a highly-modified version of the letter I sent. Please remember I am NOT a lawyer, though I checked in with many knowledgeable people before I sent it, and this is NOT to be taken as legal advice.
But many people have wondered what I said, so here goes:
Depending on circumstances, your wording may differ, so I'll explain as I go along.
First, it's important to get an accurate address. This was a person rather than a company, so I had to do some digging. But it turned out to be easier than I thought because the person was a CUSTOMER!!
So open as a standard letter with date, person, their address and dear so-and-so (no pun intended.)
On (put the date of discovery here) I visited XXX store here in my hometown of Keene NH. (You describe the exact place/venue/publication where you found the copies of your work, or found out your work was being copied.)
I was extremely distressed to find your (whatever the item is and its name/line name) for sale, a line that is a direct copy of my jewelry line, "YYY". (Reference what work of yours is being copied. If they've even copied the name, oh boy.) (Oh, and be careful about saying 'angry', 'furious', etc. You do not want to seem aggressive. 'Distressed' is good--some damage being experienced but you're being reasonable and civilized.)
Many of the pieces I observed shared extremely similar construction techniques, design and decorative accents, except in cheaper materials and base metals. The size, shape and color of my stones have also been copied. (You will describe the exact items that have been copied, and what distinctive characteristics have been copied. Also, if there are differences, make sure they are insignificant differences, not distinctive differences.)
I developed my "YYY" line five years ago, as a decorative accent for a collaborative project with another League of New Hampshire artist in 2000. (This is where you establish your provenance--the date you developed your work, the history of how you developed your work, under what circumstances, when it first appeared on the market,etc. Remember that wonderful scene from the movie "Working Girl", with Melanie Griffith, where she tells how she came up with the idea for the deal she got snoookered out of? 'I remember thinking "Trask... radio... Trask... radio...' Same principal.)
This project was featured in The Boston Globe newspaper in July 2000. (Again, you are establishing a documented paper trail of your product's development and introduction into the marketplace.)
I sold "YYY" made from these accents at the LNHC's Annual Craft Fair that same year. (Which also establishes where the perp could have seen and studied my designs. I actually have the person's name where she signed my guest book that year!)
Since then, this product "YYY" has been featured in numerous books and magazines, in addition to being sold in over 60 fine craft stores and galleries across the U.S. and Canada. I also market this line on my website. It continues to be a popular design and an important staple for my business. (Again, establishing a paper trail, establishing where the person could have seen my work, and establishing it as a major source of my income. I earn income from this design! And even more importantly, I am KNOWN for this design.)
I have never taught nor shared this technique, as I consider it a copyrighted original design. I have never given permission for others to copy or imitate my work. I have never allowed my work to be photographed or reproduced in any way except for marketing purposes for my benefit, nor without my express permission. (Just to strengthen my case that permission was not granted to copy my design, nor did I get the design from another source that others could get it from--it's original. It's the bane of a teacher's existence to teach a class on a TECHNIQUE and have your students forever feel they have permission to copy your DESIGNS. Ask Kathleen Dustin or Gwen Gibson, two polymer clay artists who also teach and now face competition from many former students whose work is dismaying similar to theirs...)
To attempt to sell a design I have worked so hard to develop and market is an affront to me. To market it to a store less than half a mile from my home adds insult to injury. (Well, I don't know if this was necessary, but it felt good to say it!)
I must request that you cease production of this line. (Because you have to indicate what action you want them to take.)
I encourage you to develop your own unique work in polymer clay. (Because I wanted to end on a high moral note.)
In the letter, I cc'd a number of stores, galleries, guilds and other professional organizations the person might attempt to approach with my designs. This person is pretty local (to NH) so that was easier than a national account. But if they are in the same organization you are (a show like Buyers Market of American Craft, a group like Wholesalecrafts.com) then it's powerful to alert that organization so they know what's going on (and can maybe do something about it.)
Then I attached a copy of my catalog, which prominently featured the copied item in question. Again, provenance, proof, and if anyone who had the jewelry had any questions about my claim, they could look at the copycat's work and look at my catalog. Hmmmmmm.......!!!
From there, I sent the letter with a delivery confirmation (so I'd know it had been delivered) and I did that postal form thing that makes someone sign for the delivery (so they couldn't say they'd never received it.)
Now for the hard part.
This letter may be as far as you can go.
If the artist doesn't die of shame, or stores don't care whether the copy cat's work looks like yours or not, or the work is not really enough like yours to matter, then unless you're willing to through a LOT more money at the problem, there isn't much more you can do.
The next step will be to contact a lawyer, who will tell you what next steps you can take and how much it will cost. You will have to determine what your bottom line is, and how hard you want to fight this.
Usually, a little exposure (light and air on a dirty wound is a good metaphor) is enough to get something accomplished. If your work is truly distinctive, and the copying is disgustingly overt, then your community (stores, show promotors, craft guilds, etc.) can act.
But be warned that sometimes, a lot of mugs are going to look alike, a lot of beaded necklaces are going to look alike, and a lot of woven scarves are going to look alike.
In which case, take a deep breath, dig deep, change up your designs--and move on.
In my case, it felt empowering to write such a letter. I have no idea what effect it's had. I know the store in Keene is still selling the work (but that's another story....)
But it helped me to know I'd established myself as the original artist, that I'd let the person know I KNEW what was going on.
In the end, though, it also made me want to go farther with my one-of-a-kind pieces.
So maybe in the end, it was a GOOD thing. It didn't FEEL good, but then, life lessons rarely do.
