Just because something is on the Internet does not mean it is free to use. That's a lesson clothing company H&M is being forced to learn this week. Regretsy is becoming a source for all the news you need to know about big companies screwing over smaller artists/content creators. The latest offense involves blatant copyright violation that a company could easily have gotten away with if they didn't get greedy.
Tori LaConsay is an artist from Atlanta. She painted a sign near a friend's house three years ago with a very sweet message.
There is no novelty in the text if recreated on a computer. It's a four word phrase with a heart. However, LaConsay used distinctive hand painted lettering and an elongated, slightly off-center heart. The design of the sign as a whole is a novelty.
This is a matter of novel presentation, not novel subject. Robert Indiana's "Love" sculpture can teach you all about the difference. Suffice it to say, when you present something in an artistic and distinctive way, even if it's a common word or phrase, you've created an artistic work that is copyrighted upon creation.
Enter H&M's design team. Tori LaConsay was contacted by a friend who pointed out a series of products from H&M that just came out. The resemblance to her sign--by this point widely distributed online (as it had been for the better part of three years)--cannot be a coincidence.
Here's the tricky part about IPR law. H&M could have independently designed their own "You Look Nice Today" logo with a misshapen heart and there would be an issue. That's clearly not what happened. They took LaConsay's hand painted lettering and turned it into a computer generated font. They took her hand painted heart and flipped it the other way. Boom. New design? Not really.
Take a look at the two designs side by side.
What differences do you see? I see a lower case "i," no period, and a flipped and elongated version of the same heart (the angles on top are identical). The reason these differences matter is that they show the thought process of someone trying to change a design just enough to sneak by unnoticed.
The "o"s, for example, are LaConsay's first "o" with one minor change: the H&M designer flipped them the opposite way. Look at the weight of the lines and tell me it's a coincidence.
Now look at the placement of the "o"s in "Look." LaConsay's angle up to the right; H&M's angle down to the right. Otherwise, they're the same. It really does look like the designer went in with Photoshop and added a few pixels here or there to fatten up a few of the pointier/thinner parts of LaConsay's painting. They didn't change the angles of the strokes or the general proportions--just a few nips and tucks here and there to be "different enough."
Here's what we're dealing with. The two signs, for copyright purposes, are ostensibly the same. The kerning (spacing between the letters) is the same. The general layout is the same. The design concept--four hand painted words with an elongated, off-center heart--is the same. The colors are the same. The concept is the same. The minor changes--like erasing chunk of the "I" to make it lowercase--are insignificant. Someone was hugely inspired/ripped off LaConsay's design and thought they would get away with it.
Well, that shouldn't be an issue, right? LaConsay can prove she had the idea first and that it was already widely distributed enough that anyone working at H&M could see it. No problem? No.
You really need to go to Regretsy and read the customer service e-mails that H&M sent. When confronted with accusations of copyright infringement, an H&M employee responded "We are sorry to hear that you will no longer be shopping with us." That's bad customer service.
What's worse is that the company can't even stay consistent. If your policy is to ignore the problem and hope it goes away, you don't spin around and post this message on Facebook while deleting all complaint messages about the theft.
Dear Gullible Customers,
We're sorry if you thought they copied someone. All we did was take someone else's image, adjust it slightly, and profit off of it. It's different because we cleaned up very distinctive lettering and made it a reusable computer font. It doesn't really hurt anyone. Don't let the door hit you on the way out.
Unfortunately for H&M, that backfired. Once again, Regretsy has helped a story of terrible business practices go viral. Go ahead and visit the H&M Facebook page. The vast majority of messages are links to the original e-mail that inspired April Winchell to share this story of copyright infringement on her site.
H&M were forced to respond. It comes down to a new rote message of "we're only dealing with the artist in this matter," which is corporate speak for "none of your business."
Don't be afraid to share your thoughts with the company over the theft. They aren't the only business pulling this stunt, but they're the ones who were dumb enough to admit that they steal work from other people on their Facebook page while denying theft allegations.
The sad part? There are people who don't understand that this is copyright infringement. If you want to see this in action, go read the Regretsy post comments. Search out the "hidden due to low rating" comments and see the common misconceptions about copyright law.
These are most likely the same people who don't see a problem with downloading music off of Pirate Bay or streaming a new film release off of MegaUpload. The reason horrible legislation like SOPA and PIPA gets pushed is to deal with nonchalant IPR violations from millions of people. The only way to protect copyright law and stop horribly invasive legislation is to educate yourself on what is or is not copyright infringement.
H&M's obvious theft is a good place to start. What can you do? Keep your eye out for images in stores that look familiar. Artists' works all over the Internet are stolen every day by companies large and small for personal gain. If you know an image is stolen and you know who it's stolen from, find a way to contact that artist. They're the ones who can spearhead the legal proceedings. Encourage them to find an ally with a large audience and go public. One voice is rarely enough to stop a big company from theft because they have deep legal resources. Many voices can be enough to force the company to think about lost profits from theft.
Special thanks to Regretsy/April Winchell for once again inspiring a post around here.
Thoughts? Love to hear them.