Is it copying, or. . .

Monday, July 4, 2016

If you ever join an art (any art!) or craft forum, you'll find that one of the most frequently discussed topics is copyright infringement.  The discussions range from highly technical, informative posts, to angry rants--often within the same conversation.  But it’s for good reason we talk about it so often.  Copyright infringement is a real problem.  Artists and crafters have been sued and had shops shut down over using copyrighted designs, and other artists have seen copies of their work strewn about the internet without permission or compensation, which can greatly affect their profits, especially if the stolen work is used in a tutorial.  But something I’ve seen happening more and more recently is accusations of theft, when there’s very little to suggest that anything was actually stolen.  Sometimes what might look like theft really isn’t.  It can come down to similar tastes, similar influences, and sometimes just plain coincidence.

For instance, Not long ago, the very talented Corienne Bruner of Wired Whymsy posted her Viking Shield pendant design.  At that moment, I had a very similar design ready to be antiqued and polished.

  
     Corienne's pendant   My pendant

They're not exactly the same, of course--but they're put together with the same basic construction; mine just has an additional overlay over the top of the swirly shapes.  I know I didn’t copy Corienne’s work--I hadn’t seen that piece before I made mine.  In fact, I was doing a variation on a previous piece of my own:

And I know that Corienne didn’t copy me.  Her work is good enough and original enough that she doesn’t need to.  Her work is always very much her own, but we definitely share a similar aesthetic (which is one of the reasons I’m so drawn to what she makes; it’s very much my own taste).

Accusations of intellectual theft shouldn’t be made lightly.  It can lead to a lot of conflict between friends and colleagues, and just as copyright infringement can cause an artist to lose their livelihood, in some cases, false accusations can potentially land the accuser in court, having to defend themselves from charges of libel and/or slander.  So some things to consider, should you suspect that your work might have been copied:

1. Is it copying, or are you both inspired by the same things? Sometimes people are inspired by the same sources.  In the case of Corienne and me, we just have lot in common.  We’re both deeply inspired by literature, and both of us studied English language and literature in college. We both tend to work quite a lot with mythic themes and symbols.  And we both enjoy working in filigree styles.  It’s inevitable, really, that the two of us would come up with similar designs, completely independently of each other.  Another example of Corienne and I making similar pieces due to similar inspiration is our respective versions of the Triskele symbol:

Corienne's Triskele My Triskele

The two pieces look quite a lot alike, but nobody gets to own the rights to an ancient, well-known symbol.  And besides that, if you look closely, you can see they’re constructed quite differently. Zero copying happening here, no matter how similar the pieces may look.

2. Is it copying, or is it a case of influence? Sometimes one artist influences another -- and while that can lead to outright copying, influence and copying are NOT the same thing.  And really, it’s a desirable thing. The lines of influence leading from one artist to another and another keep the art dynamic and lively, changing to suit current fashions and tastes. A variety of influences keeps an art form from becoming stale.  It’s also inevitable.  If you make your work public, and other artists like your work, your work will unavoidably impact some of the decisions they make when making their own pieces.  Maybe they love your flowing lines, or the neatness of your bail, or the way you combine colors.  They will, consciously or unconsciously, incorporate some of those elements into their work.  But this IS NOT the same thing as copying. Taking a single element, or even an overall style,  and working it into a different design is influence, but it isn’t copying.  And influence needn’t be a conscious thing, either. If you’re like most jewelry artists, chances are you spend quite a lot of time scrolling through Pinterest or Etsy or online forums, looking at all the different ways that different artists make those pieces.  Your brain stores each and every one of those images, and whether you’re aware of it or not, delivers them up when you’re working, solving problems of construction or design.  And sometimes, those influences are apparent. But that doesn’t mean an artist is outright copying another.

3. Is it copying, or is it a similar overall “look?”  This is, to my mind, one of the grayer areas of influence/copying/inspiration.  Sometimes somebody sees a piece and wants to create a similar visual aesthetic, but does so using different methods and different details. And very frequently, this isn’t a conscious decision on the part of the “copier” (see the previous paragraph). This is one area that has caused quite a lot of conflict in online communities -- one artist accusing another of copying the overall appearance of their pieces.  But the fact is, none of us gets to own a “look”; we only get to own our individual designs. Consciously imitating a general style may or may not be ethical; that’s a decision that each individual has to make for themselves (I tend to feel that imitating a style is not unethical, so long as the artist is trying bring their unique vision to it).  Most artists, even when reaching for a similar aesthetic, do indeed make that “look” uniquely their own when behaving ethically.

4. And finally, if you’ve determined there is indeed copying going on, ask yourself how much this copying hurts you as an artist.  Sometimes it’s not at all.  As somebody who writes tutorials, I expect those pieces to be copied.  In the terms and rights included with each of my tutorials, I ask that every artist who makes that particular design mentions the tutorial where the pieces are displayed.  Sometimes somebody forgets to mention the tutorial, and while I feel that crosses the line of ethical/unethical, it doesn’t usually hurt me enough to pursue it (unless the same artist “forgets” repeatedly).  But there are some artists out there who will take the tutorials others put out, and make them free to the public, or sell them in competition with the very artists they've stolen from.  That absolutely needs to be pursued; it’s beyond the line of what I can tolerate as an artist.  And that’s a question that every artist might answer differently, and needs to answer for themselves.  But always, always keep in mind that accusations of theft involve lots of conflict and stress, and if taken far enough, can involve lots of money and time as well.  So if you’re not very, very sure that you’ve been copied, it may be best to hold off on those accusations.

So these are some--just a few--of my thoughts on a very contentious issue, and it may be revisited here from a different angle in the future..  Remember that all of this is just my opinion, and should not be construed as anything like legal advice.  What are your thoughts?  Let me know in the comments!

Big thanks to Corienne Bruner of Wired Whymsy for allowing me to use pictures of her work here.  You can find more of her work at https://www.facebook.com/wiredwhymsy/, wiredwhymsy.etsy.com, patreon.com/wiredwhymsy and wethreewitches.storenvy.com.  Go check out her stuff, because it’s beautiful!

 
 

Comments

Be kind, but careful of failing to acknowledge a problem, too

I agree on all points.
However - and this is just my opinion, too -

I also know just how frustrating it is when this subject is brought up over and over by respectful and knowledgeable people in the presence of those who over the years, have a tendency to claim they didn't see something they commented on, or very suddenly and pointedly veer away from their usual design paths once they see the work of others in a very different and somewhat singular style is gaining popularity. And then write instructions for it.

I also see this sort of thing commented on with frustration and even disdain quite a bit when done by companies in Southeast Asia. Very few people who aren't from Southeast Asia raise an eyebrow at the veracity of the accusation. Those accusations may or may not always be deserved, but if they are, it also doesn't mean they are the only ones who do it, whether we want to believe it or not. I mean, a whole lot of people gave Bernie Madoff a whole lot of money until the lies behind his smiling face were uncovered and believed.

I guess my position is that there is no reason to be upset if there is no bad intent, or a (sometimes) documented history of actions that make plenty of other people go 'Hmmmmmm...' Just try to learn from the reasonable discussions instead of feeling threatened.
BTW - did you know that Madoff's lawyer made the disgustingly manipulative and cynical argument that if they could get away with prosecuting Bernie, they would come next for every law-abiding citizen that ever made a stock deal?

Maybe that sort of thing is what is in honest people's minds that they believe 'they could be next'? I sincerely hope not.

Despite what people feel, I don't know *anyone* who makes an actual claim of direct infringement lightly - and if they are making one, they *start* with a cease and desist. They don't generally start with an expression of incredulity that people who are considered to be creative and perfectly capable don't build on their skill foundation respectfully and honestly by acknowledging their instructors and contemporaries. while incorporating much wider, deeper, and more general source material.

There is also the kneejerk reaction by bystanders who see anyone just reacting with frustration at the above as a major claim of infringement instead of a statement of frustration about repeated behavior they have seen. People don't always read carefully, and sometimes, they believe things others write which are not true. It is like playing Telephone. Sometimes, people hear what they want to hear.

After all of the conversations, I still believe that probably 98% of people are totally cool and respectful folks. It's those two percent that are the problem. Do we really think that they would admit to anything hinky? No - but it is nice to dream. I guess the rest of us have to make do by doing what they refuse to do.

Thanks for writing the post, Anna.

Thanks for the response,

Thanks for the response, Perri. I do think there's quite a bit of "I could be next" thinking out there, particularly among new artists. The impetus for this post wasn't one particular conflict, but many -- most of which were over two artists making pieces that looked similar, but which were in no way identical; the pieces generally just had a few elements in common. I'm not sure anybody made the accusation lightly -- but in at least some of the cases, people made public accusations without considering alternative explanations for similar-looking pieces. In the last three or four months, I've seen dozens of dramas over copying play out online, and it's particularly disheartening to folks who are new to this craft. While none of these dramas ever progressed to the "legal action" stage of accusation, it's harmful enough to the reputations of those who are accused that it discourages new artists from showing their work at all. And to be very clear, I do not in any way mean to suggest that an artist whose work has been stolen shouldn't speak up. I only want to offer folks some things to consider before coming to that conclusion, whether publicly or in a private "cease and desist" letter.

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