I received a fantastic question regarding the Copyright article I shared recently and I thought, once I’d written my response, it might be of value to some of you wonderful creatives out there.
A quick disclaimer before we get into it: I tried to answer as concisely as possible since Copyright is a HUGE subject 😊 I also preface this by saying I’m not a qualified/professional lawyer. However, my knowledge of Copyright Law spans over 30 years, starting way back to when I studied Scottish Law (including Copyright, Trademarks, and Patents) before my writing career began. As a Copywriter (not related to Copyright 😉 ) in highly regulated and competitive medical R&D environments, a feature writer and editor in the Publishing industry, and as a professional Ghostwriter you could say a firm grasp of Copyright law has been the cornerstone of my career. That said, Law is nuanced and if you have real concerns you need to speak with a qualified professional Lawyer. I should also point out, that my copyright knowledge pertains specifically to writing, art, and design since these are the industries I have worked in or alongside for more years than I care to remember. The Law is a bit more cut and dried in these areas. With all that said …
The question was …
Breach of Copyright or healthy competition?
It does not seem to me, at the first read-through, that the ‘copyright’ law is being breached here. But let’s apply some fundamental tests.
Don’t get me wrong, it feels like there is nothing worse when someone appears to ‘copy’ something we do – believe me I have experienced this myself SO many times, but I’m going to help you flip your view on this later in the article.
As I said, Copyright is nuanced, so let’s look at the detail here. The question asks whether a creator has reason to be upset when someone else adorns glass bottles and jars with similar but different embellishments.
Keep in mind here, that “Similar” is not an exact copy.
The “original” creative may feel entitled to be upset if a fellow creative made something that appeared similar – of course – but if it’s not an exact replica – it is considered a ‘new’ creation – a new expression in its own right. You will note I put “original” in inverted commas because truthfully, how does this creative know they are the first person to ever create such a piece in the first place?
But let’s not muddy the water here – the assertion of copyright “depends” on some key points … and I’ll explain what I mean by that.
A lot of creative work is inspired by other people’s creative work, and that’s perfectly fine – as Nikki states – there is nothing new under the sun…
In fact, the whole point of copyright law is twofold:
- to protect an individual’s unique, (original) creation
- to provide a springboard for other creative people to build on that unique creation to generate their own new creative work. (So you see this is different to ‘copying’ to make something look exactly the same.)
When writing a book – 10 people could be given the same topic to write about – or they could be inspired by the SAME idea for a book – BUT their point of view or their personal experiences – their interpretation – would mean these 10 people would write 10 very different stories (so they would ‘express’ the same idea but in a totally unique/ different way). Each story may appeal to slightly different audiences simply due to the myriad of ways this singular idea could be expressed.
Each of those writers could protect their own work because they exist as an original ‘expression’ of the writer.
The Copyright Act and Artistic Works
The Copyright Act provides a list of things that are considered “artistic works” including paintings, sculptures, drawings, engravings and photographs. It also covers the design of buildings/models of buildings etc. Drawings might include diagrams, maps, charts, or plans, while engravings could include etchings, lithographs, products of photogravure, woodcuts, prints and so on.
Some materials such as embroidery, handmade ceramics, and handmade jewellery may also be considered/covered as ‘artistic work’ if they are not mass produced because they possess an artistic quality and craftsmanship (a skill) was needed for their creation. So this is referred to as works of artistic craftsmanship in the Act.
When viewing whether there is a case for Copyright (protected or breached) in the area of more general arts/crafts or anything else, we need to first consider whether:
- materials are already in the public domain (freely available to everyone)
The Copyright on an original creation (or a Patent on a process) may have expired.
For example, glass bottles have already been invented and have been in public use for many years. Nothing ‘new’ there. Candles/Wax/Glue – the objects within themselves – are not protected.
BUT If the person ‘invented’ a FORMULA/Potion (for inside the bottle – OR a manufacturing or technical process to create these crafts then an application could be made for a patent, or if not a patent – then certainly ‘Copyright’ or Design Act/Law would be breached if someone else copied the exact formula/potion and took credit for it.
- materials are outside the scope of Copyright
For example, spellwork in jars, or crafts that include gluing, dripping candles onto jars, and filling jars with contents in themselves can’t be copyrighted. The Copyright Act does not protect concepts, styles or techniques.
However, a specific, unique ‘design’ or pattern that was designed/originated by an artist or creative (that already owned the copyright for creating it) – was then applied to a bottle/jar- this could potentially be protected. The original artist could ask you to remove their design from your bottle (particularly if you were making money from it).
Here we could stray into Licensing but that is another avenue again. You have to own the copyright to be able to license the use of your ‘creation or invention’ In order for you to own the ‘copyright’ you would have to prove you were the first person EVER to create that distinct/specific pattern …and in ‘handmade crafts’ (where the key differentiator is that every item is different – because it’s handmade) that is tricky.
Going back to the original premise though, this sort of craft is generally outside the scope of Copyright Law.
- materials are protected by other IP (Intellectual Property)
Here I’m thinking PATENTS which protect a ‘process’ or the way something is done’. A patent (from my days working as a copywriter in an R&D medical environment) gives an inventor the right to exclude others from making, using, selling or importing his invention. Proving the invention/and lodging the application for a PATENT can be an expensive/lengthy process – but a necessary one for the survival of the business.
Trademarks are also part of IP – They enable customers/ consumers to identify goods and services between an owner and their competitors. So your favourite ‘brand’ will have a specific look and feel that’s protected by TradeMark because it’s unique to them – it’s their ‘differentiator’.
So I hope this rather long-winded reply at least illustrates the grounds on which we have to consider copyright.
Finding your differentiator in a crowded market
It is upsetting when others appear to create something similar – but this is where the creative has to rise to the challenge and find their “differentiator”. If there are 10 products that appear to be similar, (and assuming they haven’t breached copyright by copying your product exactly – before passing it off as their own) which one does the customer choose?
Your differentiator might be you create the charms yourself, or you handpick the shells yourself rather than source them from a wholesaler … you might be a qualified silversmith and make the jewels that adorn the bottles – so it’s an opportunity to really think about what makes ‘your’ creation so special in a sea of “similar” offerings.
Keeping to the ‘sea’ theme – copyright has tentacles into the Design Act, Licensing, Trademarks and Patents etc. – and it is possible (and necessary) to protect your work with ‘Copyrights’ and assert you are the ‘originator’ of that particular piece – but that is easier to prove with some ‘artistic works’ than for others because there are some things you just can’t own – as reflected by “materials outside the scope of Copyright”.
To further illustrate my point, if I wrote a well-known poem by Shakespeare and tried to pass it off as my creation, I would be sued left, right, and centre – but if that poem INSPIRED me to create something of my own – with my own interpretation – then I could protect my own interpretation!
Your work is unique to you and you own the Copyright – as long as you are not actively ripping off other creatives by copying everything exactly, and passing the work off as your own. Otherwise you shouldn’t have any concerns over Copyright Law. If someone is inspired by your work, yes it may make you flinch, but consider the fact you are helping to grow and diversify a market. that means more customers interested in work like yours. If it upsets you that someone is creating something “similar”, use this as an opportunity to ‘up the ante’. What makes your offering so unique? What do you bring to your craft that is intrinsically you and can’t be copied? Rise to the competition so you stand out.
As a writer these days, I am considering just saying “I am a human writer with a soul” because AI is keen to snaffle our words and claim them as “its ” own (that is another Copyright battle for another article another day).
If all else fails, just remember Oscar Wilde said it best … “Imitation is the sincerest form of flattery that mediocrity can pay to greatness”.
I hope that helps.