It’s been just over a month since the hurricane of media coverage slowed to a drizzle. In July, the internet was abuzz about Tuesday Bassen, the unassuming but tenacious indie illustrator who challenged retail behemoth, Zara, over intellectual property theft.
She was the underdog. She was a minor annoyance that the retailer's parent company expected to extinguish swiftly. But a passionate fan base and close knit community of creatives propelled her story, and joined forces. Though the media has moved on, the conversation is still burning in design circles, fuelled by other artists who are standing up to protect their work.
Tuesday’s friend and fellow artist Adam J. Kurtz launched Shop Art Theft, along with corresponding social accounts to throw light at the issue and encourage fans to speak up with their wallets. Shop Art Theft’s Tumblr has become a whistleblower, accepting copyright infringement sightings from fans and artists alike.
This isn’t the first time Tuesday’s work has been the victim of theft. This particular crime inspired her “enough is enough” moment, however, after she spotted a near-identical version of her Girls! Pennant in one of the retailer’s stores. Fans then began alerting her to other copycat designs. So she lawyered up.
"This is the first large scale copyright infringement issue I've ever had. Unfortunately it's rampant this season – Zara isn’t the only one. I've had issues with a few other brands, too. It’s a little disheartening that it's so commonplace right now.”
Legal counsel cost Tuesday $2000, just for the initial cease and desist letter, and the costs keep adding up. The first response from Zara admitted no wrongdoing, and implied that because she was an “unknown”, she had little recourse. This “unknown” took her message to her 168,000 Instagram followers and the media followed. Zara has since removed the offending pieces from their website, and has issued a more humble statement.
It’s a little disheartening that it's so commonplace right now.
Luckily, in 2016, social pressure is a powerful thing. Companies, once able to dig into deep pockets to erase legal issues, can no longer ignore the little guy. The little guy with a free Twitter account. The little guy with 168,000 Instagram fans. Not every artist, inventor, or entrepreneur has the benefit of large social audiences to amplify the outcry, and sadly copyright infringements happen to small businesses and artists every day. Many go unreported.
Learn from Tuesday’s cautionary tale: before someone else tries to take credit for your big idea, protect yourself. Smaller upfront copyright costs can save you a bundle in legal fees on the back end. But where do you start? What’s the difference between copyright and trademark? Do you need a lawyer?
Before we demystify intellectual property protection, let’s start at the beginning of Tuesday’s story.
Meet Tuesday Bassen
photo: BuzzFeed BFF
Hailing from Nebraska, Tuesday Bassen honed her illustration chops at the Minneapolis College of Art, before, like many creative types, she found herself in New York City. Her first freelance gig – a corporate commission from Target – paid for her ticket. The struggle was real. The work was hard to come by, and when it did, she found she wasn’t being true to her voice.
“I feel like for a long time I was making work that was very safe and not necessarily what was interesting to me. I made a lot of work for family-friendly blogs and stuff. That's cool, but it's not really where I had seen my work go. For a while when I graduated I think I felt insecure about the viability of making work that I actually liked. I was in such a poor financial position that I didn't really feel like I could afford to take any risks."
I was in such a poor financial position that I didn't really feel like I could afford to take any risks.
While deflating, the experience didn’t deter her – she couldn’t, she tells me, imagine doing anything else with her life. In 2014, when New York had all but broken her, she decided to start posting the work she wanted to create. “I didn't really feel like I had anything to lose,” she said.
Her authenticity paid off. The true-to-herself designs attracted the attention of new clients and projects more in line with her style and subject matter.
“I started doing work for Playboy when they were looking for somebody to illustrate a series about the weirdest sex questions they've ever been asked. They wanted it handled in kind of a funny, not explicit kind of way. That was my first project where I felt like a client was really paying attention to what I wanted to do personally, or responding rather, to what I was putting out there.”
Hello Holiday X Tuesday Bassen
After a visit to LA felt more like home, she packed her bags and moved to the other side of the country. Inspired by illustrator friends who were dabbling in products, she started experimenting with her own illustrations in the same way. Her first foray into tangible goods was a ceramic store on Etsy which earned her a collaboration deal with Urban Outfitters. The work was manual and labour-intensive, proving to be the wrong medium for her designs.
“I started making my first mass-produced product in 2014 and I made a sticker. I made it for myself, but I wanted to share it with the people who were following me. It sold out right away, which was really awesome, and I started making some more simple merchandise with my illustrations on them, like totes and more stickers, prints, and stuff like that."
She stuck with Etsy but pivoted her product, enjoying the new consumer audience. As her business needs grew, she moved over to Shopify in 2015. She had finally found her groove.
“Products are definitely the way for me to go. I really like the freedom it allows me. I'm moving into doing clothing right now. It took a long time to figure out the avenue within illustration I wanted to take.”
The success of her ecommerce store and tangible goods line – patches, pins, and other merchandise – has even helped her gain even better freelance illustration gigs, too.
This year, Tuesday’s business outgrew her apartment, then a co-working space, before settling into a dedicated office space. She’s also hired two employees who have taken ownership of large chunks of Tuesday’s to-do list – one managing customer service and the other tackling order packing and fulfillment.
“Letting go has been a process over time. They started in February, and have been through a lot of different changes in the business. At the time, I was still controlling every aspect, but as time has gone on, I've gotten to know them both more and trust them pretty explicitly. It really helps me focus on being able to design more products, especially as I get into doing clothing and take on larger scale freelance projects.”
She’s been able to become self-aware, and delegate the aspects of the business that don’t align with her strengths, and to know when to step out of the way.
“I really like being able to have somebody that spends the time to speak with clients or customers. I think it's easy to feel personally attacked, especially if your brand is your name. It's good to be able to keep things moving along in a positive and productive way.”
It's good to be able to keep things moving along in a positive and productive way.
When her battle with Zara started this summer, she was already knee-deep in the planning stages of two huge milestones for her business: the launch of her first womenswear line and an LA brick and mortar shop.
Having her work stolen was a reality check: there was so much that she didn’t know about about the business aspect of illustration. I had the same beef with my own art education, my college pumping out graduates deft in oil paints, but with no experience in marketing, finance, or any of the skills required to sustain a career as a freelancer, or run a small business selling oil paintings.
“I feel like I've learned a lot, even in the past month, about the legal side of illustration. I feel like I've learned a lot about the business side. It's crazy to have to hire somebody to be on retainer to protect my intellectual property.”
You can't keep people from stealing from you, but you can do things to protect yourself.
photo: Jillian Newman via Tuesday Bassen
[Note: This post is intended to be informational, and is not a substitute for professional legal advice. This information is also based on IP protection in the United States. Consult a lawyer or your local government’s website for information specific to your country or region.]
Intellectual Property for the Layman
In the same way that you can insure a house or a car, you can insure ideas.
Intellectual property (IP) refers to something produced as a result of creativity. IP can include tangible goods – individual works of art, books, or films – or intangible things like ideas and processes. Logos, words and slogans associated with a brand also fall under the IP umbrella, as well as personas, likenesses, and voices.
Intellectual property refers to something produced as a result of creativity.
IP protection is especially important for ecommerce merchants, says the World Intellectual Property Organization:
“Ecommerce, more than other business systems, often involves selling products and services that are based on IP and its licensing. Music, pictures, photos, software, designs, training modules, systems, etc. can all be traded through Ecommerce, in which case, IP is the main component of value in the transaction. IP is important because the things of value that are traded on the Internet must be protected, using technological security systems and IP laws, or else they can be stolen or pirated and whole businesses can be destroyed. Also, IP is involved in making Ecommerce work. The systems that allow the Internet to function - software, networks, designs, chips, routers and switches, the user interface, and so on - are forms of IP and often protected by IP rights.”
Let’s use the example of a merchant who sells her own vegan printed handbags on her Shopify store. We’ll call her Giulia. Giulia has a unique business name, designed the site’s theme and logo herself, and has developed a new process for creating a leather alternative from coconut husks.
Her intellectual property could include:
- Business name
- Brand tagline or slogan
- Her unique process for creating the material
- The website’s theme design
- The textile print designs
If Giulia discovered that another company was using or selling any of her intellectual property, she would likely have grounds for legal action. The challenge arises, however, in proving that the IP rights belong to her, and proving that the copy is close enough to be considered IP theft.
However, if Giulia had protected her work through copyrights, patents, and trademarks, her legal right to the IP would be more clear-cut.
Copyright vs. Patents vs. Trademarks
A copyright protects unique works of art created by an individual, in a tangible medium. Works that qualify for copyright protection include books, paintings, films, songs, poetry, and software.
A copyright holder has the exclusive rights to reproduce the work, publicly perform, display, distribute, or sell the work, and create derivative works. As with an illustrator like Tuesday Bassen, each of her unique designs would need to be registered individually for copyright protection – about $35 a pop in the US.
“Protecting every design is currently what I'm doing. For other people, I would say it depends on the design and how distinctive it is and how much you honestly care about it. For me, I have a lot of different products. Things that are a little bit more unique are especially important to protect.”
Copyright protects unique works of art created by an individual, in a tangible medium.
Registration is not mandatory for copyright to exist – it is technically implied the moment the unique work is created. However, to exercise your legal rights in the case of copyright infringement, it is advisable to register it officially.
In the United States, a copyright lasts for the life of the creator, plus 70 years.
Trademarks refer to logos, brand names, and even slogans that identify a business and distinguish it from others. Like a copyright, a trademark can exist without registration, simply through use of unique marks in association with your brand. Registration, however, establishes your legal ownership and right to exclusive use.
Trademarks do not expire provided the proper paperwork is filed at required intervals, and the trademarked logo or brand name continues to be used regularly in association with your business.
A patent protects rights to an invention, process, or even machinery. Patents can be held for 15-20 years depending on the type issued.
INTELLECTUAL PROPERTY PROTECTION for ecommerce Intellectual property (IP) refers to something produced – an invention, brand, or work of art – through creativity. Selling online can leave you vulnerable to IP theft. Patents, trademarks, and copyrights can protect you, but what's the difference? Trademark ™® Protects logos, words, and phrases related to a brand, business, or identity. It prevents others from selling or distributing products using the same symbol or brand name. Examples: Nike logo, "I'm Lovin' It", Shopify (name) Copyright © Protects individual works of authorship, giving the owner exclusive rights to sell, licence, and distribute the material. Used for music, art, photos, books, etc. Example: Harry Potter books Patent Protects inventions, products or processes, preventing others from manufacturing or selling the invention in the country in which the patent is held. Example: a new method for roasting coffee beans
Someone Stole my Work. What Now?
“Not everybody has the capital to be able to protect themselves so aggressively, but I would say if you notice it being an issue, I would take immediate action to protect yourself legally so that if you have to go after somebody, you have a federal copyright to back you up.”
Before you pursue the matter, consider whether the offending work qualifies as a copyright infringement under federal copyright law:
- Is your work protected by a valid copyright (or is it eligible for registration)?
- Does the alleged infringing party have access to your work? For example, could they have seen the work on a website or in a store?
- Does the use of the work fall outside of the exceptions to the law (ex: the Fair Use Doctrine)? In some cases, use of copyrighted work may be protected under Fair Use, allowing a court to reduce the damages if the infringing party can establish grounds for an exception. Determining Fair Use depends on several factors, including the purpose of use, the nature of the work, and the impact on the market of the original work.
Did you answer yes to these questions?
Next, hire a copyright lawyer. A legal professional can help you register a copyright for the work even after the infringement has occurred. If you haven’t already protected your work, you can still do so. However, published works copyrighted more than 3 months after publication no longer qualify for statutory damages (a set amount of damages per work).
A legal professional can help you register a copyright for the work even after the infringement has occurred.
The Copyright Office, though it administers the law and provides registration, does not enforce copyright law.
If you believe that your work has been copied, the matter may be solved simply via a warning (or Cease and Desist) letter from your lawyer which includes a copy of the copyright certificate. If you are seeking damages, the next steps would involve filing a petition for a copyright infringement injunction or lawsuit, and the case would be settled by federal courts.
If you're just starting out and can't afford to hire representation, there are plenty of resources for free or low cost legal advice.
While Tuesday Bassen continues to go after the copycats (including, most recently, former client Target) and retroactively protect her designs, the legal woes haven’t slowed down her growth. If anything, the experience has been motivating.
Her latest project – a brick and mortar shop in LA, co-owned with her boyfriend, designer Ben Goetting of World Famous Original – is an ode to independent artists, many of whom have also experienced theft of their IP. The shop is the celebration of the artist, the antithesis of the mass-produced, and the faceless chain.
“I really wanted to open up Friend Mart as a way to showcase other talent, of creators who are doing something similar. Specifically artist-run businesses, like artists that are making their own products. I think it's an interesting thing when they can have total control over the final product. It's awesome. I opened Friend Mart as a way to support that community.”
Tuesday just released her womenswear line and is currently working on projects with Google and Sophia Amoruso. Recently, she painted a mural for Rihanna’s show at NYFW. To what does she owe her success? Never backing down.
“Don't be afraid to do the work that you actually want to do and don't get discouraged by not seeing movement in your career right away. It took me at least 5 years to get there. It's actually really awesome because a lot of my goals are being achieved now.”
Additional Reading & Resources
- What You Need to Know About Ecommerce Trademarks
- Legal Considerations for Ecommerce Businesses
- Understanding Copyright: A Deeper Dive – Lynda (Course)
- Shopify DMCA (Digital Millennium Copyright Act) Notice and Takedown Procedure
- The Definitive Legal Guide to Ecommerce
- Copyright Not Intended – Hello Internet (Podcast)
- Low Cost or Free Legal Advice for Your Business
- How to Enforce Your Copyright if Someone Infringes on Your Work