Yorkshire Crafts

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Yorkshire Crafts
Yorkshire, United Kingdom
Designer/maker of hand knitted, hand crafted, handmade items, avid collector and reluctant seller of vintage china, mum, home-educator and book lover. Blogging about our crafts and makes, our home education journey, and reviews of books we use.
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Daffodil

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Thursday, 20 January 2011

Copyright: What is it, and what can we do when it's infringed?

My @yorkshirecrafts Twitter stream is in uproar at the moment over what appears to be a blatant case of plagiarism.  The dictionary defines plagiarism as "the wrongful appropriation, close imitation, or purloining and publication, of another author's language, thoughts, ideas, or expressions, and the representation of them as one's own original work."

A few years ago, I was a member of EPUK (Editorial Photographers UK), and one of the commonest questions appearing on the forums was to do with copyright and dealing with copyright infringement.  It always amazed me that so many young photographers leave college with great photography skills but without any knowledge at all about the rights they have over their photogrpahs.  Many ended up being fleeced due to their lack of knowledge.

I'm not going to wade into the Twitter debate as I have no wish to further prejudice any potential claim the infringed party may decide to make, but I thought I would rehash the copyright basics that I, in collaboration with a couple of others, wrote to try and help the young photographers.

Let's get one thing clear right at the outset.  You cannot copyright an idea.  As long as a thought, literary work or design remains in your head, it is simply an idea and as such, it is not beyond the realms of possibility that someone, somewhere - there are more than 6 billion people in this world after all - will conceive the same or very similar idea at the same time.

Once that idea comes out of your head and is written down, photographed, created or designed in a physical form, it is immediately protected by copyright.  Basically, copyright is the right of the creator of the work to be recognised as the creator and owner of the original work, and it is up to them to decide how and where they will permit that work to appear, and also covers distribution and copies of that work.  It is not necessary, nor a legal requirement, to register copyright in order to be recognised as the copyright holder.

As the owner of the work, you may choose to licence others to reproduce your work, and if you do then it's up to you to define the scope of that licence and ensure an appropriate fee is paid to you by the licensee.

As my own experience with copyright infringement stems from photography, I'll use that as an example here.

You take a photo.  Someone wants to use it in a brochure promoting their business, and they approach you as the copyright holder for permission to do so.  You agree that they can, and you draw up a licence allowing them to use it in a printed brochure with a print run of 50,000 copies.  They pay you the fee you specify and the brochure is produced, complete with your photo.  That's all perfectly fine.

Six months later however, the company produces a set of greetings cards using your photo.  You did not agree to your photo being used in this manner and the company did not buy a licence to use it for anything other than the brochure.  The second use is a clear breach of copyright and you are due a fee for this second, unauthorised use.

The principle of licencing however, applies to any created work.  In order to use, copy or reproduce someone's work, you need to buy the right to do so - the licence - and the excuse of "I couldn't find/didn't know who the owner was/didn't know it was subject to copyright" does not stand up.  If in doubt, don't use the work!

So what can you do when your copyright has been infringed?

Bringing a copyright infringement case to court can be an expensive and often protracted affair, and it can be difficult - especially for the small business - to prove a case when the opposition is some big corporation with the bully-boy lawyers to match.  It is made doubly difficult when the infringing party is overseas.

What most photographers do when they discover a breach of copyright, is to collect evidence of the infringement and send the infringing company/person an invoice in just the same way as an invoice would be send where permission had been sought.  As the use is unauthorised however, industry standard is to invoice for double what the authorised usage would have been.  I know one (retired) photographer who still makes a very healthy living by invoicing those have used his work without his permission.

It is far, far easier to successfully pursue a non-payment of invoice case through the small claims court than it is to prove a copyright infringement case.

One thing we can all do when we create a design though is to put a copy of it in a sealed envelope with something written on the front to identify the contents.  Ask the nice man/woman at the post office to date-stamp the back, over the seal.  Keep the sealed, date-stamped, envelope in a safe place and if you end up in the unfortunate position that your goods are later copied, you have at least some evidence of when your design was created.  It can go a long way to prove you conceived the idea long before the infringer did.

I should add the disclaimer here that I am not a lawyer.  I'm not suggesting the injured party on Twitter should send the infringing party a whopping great invoice for reproducing copies of her work without permission.  She should seek independent legal advice.  I do hope she does get redress though, as big companies shouldn't be allowed to get away with walking all over small businesses, feeling safe in the knowledge that they won't be pursued because the little guy can't afford to bring a case.

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