Guest lecture with Kevin Poulter and Jonny Mayner
Guidebook to intellectual property by Robin Jacob; Daniel Alexander; Matthew Fisher
Copyright and IP protection are serious topics. This week’s lecture and my research has led me to some interesting conclusions – there is a vast difference between what is legal, ethical and possible and copyright infringement falls into a tangled venn diagram of all three. The obvious advice for creatives is a) don’t rip off other creatives and b) protect your own work as much as you can. This is more difficult than it seems. As far as not ripping off other creatives goes, where is the line? You can do your utmost to be original and still create something that is similar to other work. It is entirely possible for two different designers to arrive at the same conclusion in completely different ways. Poulter and Mayner discussed this very issue and have suggested documenting your work in progress and backing up email trails. Meta data in files is also very useful for this, and can be used as protection if you find yourself in a defensive position. There is also the thorny issue of inspiration. At what point does inspiration become derivation?
An interesting example is Richard Prince’s Untitled (Cowboy) 1989. By taking a photograph of a commercial photograph used in an ad campaign, and then selling the decontextualised print for millions of dollars, Prince has shone a spotlight on art, rights and usage. Is his art in the re-contextualising of the piece? Should the original photographer have rights to the image? This is further muddled as the original photographer was working under a work for hire contract with an agency and therefore has no commercial rights to his own work. How far can this be taken? Could another artist photograph Prince’s print and sell this on? We could have a potentially endless nesting doll of photographers photographing other photographer’s work in a tangled and neverending ouroborous.
Creative law expert Katie Lane gave an excellent talk on copyright at the AIGA Eye on Design Conference in 2017. She covered a wide variety of topics such as protecting your work, work for hire, payment, contracts and policies, as well as taking specific audience questions. Her main thrust is that everything boils down to boundaries. By deciding on policies and contracts ahead of time, you are proactively protecting yourself, which will help you to be confident in negotiations and in enforcing your boundaries.
She also breaks down what is and is not covered by American copyright laws in a very engaging manner. Copyright protects the expression of an idea, not the idea itself. It is automatic, lasts your lifetime plus 70 years (this is different depending on the type of work created, and the specific country you are operating in) and it is a collection of rights, not one discrete thing. Copyright covers the ability to control who can copy the work, to control who performs or uses the work and to control derivative work. Copyright does not require being credited, so this is something you need to negotiate separately. She suggests giving clients the permissions that they need, and the permissions that they can use immediately, but to reserve all other rights to be negotiated in the future if necessary. She also covers the DMCA and how to report online copyright infringement. (Lane 2017)
Copyright laws are also different in every country. The laws are similar, but it is worthwhile to research the specific areas you are working in or where your work would be used. A detailed breakdown of UK copyright law is available via the Intellectual Property Office.
Infringement is a real concern, so to further protect your work you can go beyond the automatic protection of copyright. The options include copyright registration, trademarking and patents. Registration gives you no more rights than copyright already confers, but it establishes an official date for your work in a public database which will help you to protect your work. This is not available in the UK, but you can register your IP via trademarks, patents and registered designs.
What can you actually do about IP infringement?
One of the cases we looked at in the lecture was Zara vs Tuesday Bassen. When a large company appropriates your work what can you do about it? I think it is clear, looking at not only Bassen’s work, but at this larger collection of artists work that was replicated by Zara, that infringement occurred. Whether this would hold water in a legal sense is one question, and as they seem to have settled discretely we will never know, but definitely from a moral or ethical position there is wholescale copying demonstrated here.
At this point it becomes a larger conversation – who is responsible? A designer under a work for hire contract within Zara? The manager who signed off on the designs for production? Dealing with a large company who subcontracts and has many multi-national divisions this becomes very complicated. Poulter and Mayner discussed that often a settlement will be arranged privately between large companies when an IP issue arrises as neither company wishes for bad public attention, or they find that their operating spheres are so different that both can coexist.
What about the opposite situation?
Cadbury has recently lost the right to expand its trademark purple in relation to chocolates. (Watson 2019) Cadbury has long been vigilant and vicious in protecting its use of Pantone 2685C, to the detriment of smaller companies. A client of mine had started a small business selling raw chocolates, and was hit with an IP threat because her packaging included purple. Cadbury forced her to cease use of her packaging, as well as turn it all over to them for destruction. This was previous to my working relationship with the client, and I was horrified to be told this. Cadbury had no legal standing to demand any of this, my client’s former packaging was not using Pantone 2685C, and could in no way be confused for Cadbury. Had the complaint gone to court, Cadbury would have lost, but my client was scared of the legal threat and complied with Cadbury’s demands. They use their clout and very deep pocketbooks to bully and harass small businesses who are unaware of their rights.
Another common issue is people misusing the DMCA. By filing spurious complaints, bad faith actors can remove content from the internet in spite of not actually having the rights to the content. Platforms must comply with a DMCA and often take down the object of the complaint without investigation. Content creators then have little recourse for reinstating an incorrect complaint. IP protection can cut both ways, and as creatives you must be careful to protect yourself adequately, while not abusing the spirit of the law.
Select a designed object and highlight the key areas that may infringe copyright or require IP protection.
In approaching this week’s design challenge I chose a brand of sweets I enjoy. Candy Kittens are gourmet vegan sweets marketed at adults. I knew very little about the brand aside from that they began appearing on grocery store aisles a few years ago and I enjoy eating them. I was surprised to find that the brand had been founded by a reality television star, Jamie Laing, originally as a pop up sweet shop. With the addition of Ed Williams, the brand’s co-founder, Candy Kittens pivoted away from the sweet shop idea and instead focused on designing their own sweets. (Candy Kittens 2021).
In researching their brand history I found they had registered a trademark for the phrase “Candy Kittens” in 2012. This was for broad categories including jewellery, clothing, food and beverages. They expanded this in 2013 to cover textiles, games and playthings, a huge array of retail services and entertainment.
It is easy to see from this article from the Daily Mail, that the focus of the business was on the retail and influencer side, selling clothing branded with Laing’s catchphrases and employing staff in kitten ears. (Dadds 2012)
In 2013 they registered their logo. This remains the only logo that is registered, in spite of several rebrands. By 2014 they had developed their own range of sweets, and were using the registered logotype and brandmark on the packaging, as well as the shape and debossing on the sweets themselves.
By 2016 they had gone through several iterations of their packaging, shown in these two tweets from 2016. They began moving away from the original brandmark, and established their silver scattered dots, and shaped sweet windows.
2018 saw the introduction of a new brandmark, and a brighter and more cohesive strategy, and in 2020 they worked with 6B Digital on a complete brand refresh.
Their logotype remains the only aspect of their branding that is registered, which can be dangerous. They have recently signed a distribution deal with Wal-Mart in the US which will expand their market reach world-wide. In addition, they have already had issues with Aldi producing a copy-cat version of their sweets. According to an article on The Grocer, Candy Kittens had discovered the knock off sweets in the warehouse of one of their packers and were considering taking legal action. (Woolfson 2020)
While I haven’t found any further information on this, a post on reddit from 2020 confirms that the sweets were available in shops.
Candy Kittens can pursue several avenues of IP protection, including registering their new brandmark, and registering their trade dress in the US. They can also protect the makeup and recipes of the sweets themselves. They are working with CITMA, so I am confident that appropriate measures are being taken to protect their IP.