Sunday, January 13, 2013

Intellectual Property 101: Ownership Rights-Customs, "OoaK" Pieces and Exclusivity

Howdy gang!  I haven't been here to talk about intellectual property (copyrights, etc.) for a while, so I guess it's about time to talk about what rights, if any, a customer has to keep a design/item exclusive.  That is, can they expect an artist not to make the same piece again. I spoke to these issues a little in my "Can I Use That Image?" and "You Stole My Idea! ... or did you?" posts, but the subject has come up several times in recent weeks on a few of the social media forums I frequent, so I thought some clarification was in order.

Let me take a moment to remind you all that I am not a lawyer.  I worked as an intellectual property analyst and licensing contract writer/negotiator for years, so I know just enough information to be dangerous.  This post does not provide all possible details or exceptions and DOES NOT constitute legal advice.  If you need advice, CONTACT A QUALIFIED ATTORNEY.  



Exclusivity Rights.  In short, customers are not entitled to an expectation of exclusivity when they purchase a handmade item or piece of artwork.  The exception* would be if the customer had a written contract from the owner of the intellectual property rights and the creator of the item (might not be the same person/entity) stating that the design, image, specific item, combination of materials, etc. would never be created or sold again.  It is generally unrealistic to expect most artists to agree to exclusivity, since licensing and viral marketing can be our bread and butter.  However, for those who think they can get this agreement from an artist, be sure to make your request before you pay and work begins.


"But what about..."

Custom creations.  A customer does not have the right to limit reproductions (prints, etc.) or recreations of  a custom item.  Even if a client gives an artist "the idea," the resulting work/design/image belongs to the artist. A potential client once asked me to paint a specific animal in my Skelekitty & Friends style, and then referred to the custom order as a "collaboration."   Since he did not pursue the order for other reasons, the issue was never discussed between us, but it can be important to make sure clients understand a bit about the rights retained by an artist (easy to do with an image/design rights notice on order sites and on a note with the delivery).   

example of my copyright notice, enclosed with all prints

A few weeks back, an artisan publicly posted on a public forum that they had "obtained permission from the client" to reproduce one of his own creations.  I immediately saw this statement as a dangerous reinforcement of the erroneous belief so many customers have: the belief that they own the image/idea when they purchase an item.  After speaking with the artist about intellectual property rights, I learned that he didn't "get permission" from the client as much as he asked them if they'd mind if he made more.  (He typically made one of each project, but reproductions of this item were in high demand after it was posted it online.)  So while the artist didn't technically have to ask the client if they thought it was OK for him to make more, it was definitely a good business move since communication like this develops and preserves existing and future relationships. (It's the kind of relationship building Weird Al does when he asks for permission to use a song before he does a parody, even though he doesn't legally need to do so, much to the chagrin of Coolio.  He asks because he respects the feelings of the original musician, not because the law requires it.)


Items marketed as "one of a kind."  Does "one of a kind" count as a written guarantee from the creator that nobody will ever have a similar item?  Nope.  Even if an item was marketed as limited or one of a kind, the artisan is not guaranteeing that they will not make a substantially similar item in the future.  I know, I hear some of you out there saying "but it said ONE of a kind!  That means it will never be made again!"  Not really.  Why?    It's nearly impossible to mass produce identical products by hand.  The very nature of handmade items makes each piece, even if they're all identical in design, one of a kind. 

How about I give you some concrete examples while I tell you about some super awesome art my friends make?

Let's say we have a ceramicist who makes, oh, let's say, zombie pie birds (which are so awesome that I have two of them!)  Many of these pie vents are made using the same design and glazes, but because they are all individually hand made -no molds- they are in fact each one of a kind.
Every pie bird in this family is one of a kind!

Similarly, I have a friend who makes bottles with etched skulls on them.  However, because she draws and cuts every single-use stencil by hand, each bottle is considered one of a kind - even though she might make 10 or even 100 of them.

Each hand-etched bottle by KitCameo is different because
her hand-drawn and cut stencils are used one time only
So let's move away from the whole idea of legal rights and limiting factors and talk about why you want to buy custom work if a few people might end up with an item like yours.
  • You are getting exactly what you want by ordering a custom, handmade item.  You never have to settle and the possibilities are endless.
  • Artisans take their craft very seriously and these items are made with love and are of very high quality (yes, there are 'bad sellers' out there, so do some research but keep in mind that even the best sellers may have one or two irrationally angry buyers floating around).
  • You learn about the creative element as it happens, and often get a chance to give input as your item as it is being created.  That's just cool.
  • Compliments!  People are really becoming interested in buying handmade and custom art and items draw attention to you.  Plus: you get to help out an artist by spreading the good word!
  • Bragging rights: you can brag that you were the first person to ask for this item/request this custom or that it's your dog someone painted, etc., etc., etc..  People dig your style!
and mostly
  • Because, assuming being an individual is so important to you that you demand a completely unique item, only one or two people in hundreds of millions might have something kinda sorta like yours.  And why would you want to damage a business you are supposed to be supporting?  That's what you are doing by asking some of them never to sell 'your' awesome item again.

Thanks for reading.  I hope this helps to clarify some more of the fuzzy areas of intellectual property that affect the handmade community and our clients.  I'll continue to write these articles as I see problems, disagreements and confusion around teh interwebz.


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* as usual, I am not taking "work for hire" into consideration.  If you want to know every possible nuance surrounding these subjects, I suggest you consult an intellectual property attorney, or perhaps consider applying to law school yourself.