Help! I've been copied!

Before you fly into a frenzy about someone copying your work, it might be best to stop yourself and think logically about the situation.

Sure. It’s annoying if you’ve spent time and energy and creative juices coming up with something you think is great. It might hurt your feelings that someone lives by rules that differ from yours. It might piss you off that another person is blatantly breaking the law and casting you as a victim. But a little perspective may be all you need to get past it and build a thriving business. Nobody ever built an empire on high emotion.

Instead of freaking out and panicking as if a cyclone has chosen to attack only your house on the block, ask yourself a few questions.

A. Do you have a legal case?

To determine that, you'd best talk to a lawyer (I am not a lawyer). But before you talk to a lawyer, understand how difficult it is to prove copyright ownership. When it comes to handmade goods, copyright law protects you if someone else from reproduces and distributes your work, or produces and distributes derivative work. To have a case, two things need to happen. 1) You’ll have to prove (with far more than the date on your item listing) that you created a given item first. 2) You’ll have to prove the copycat saw your work and deliberately copied and distributed it. If you are using materials that are commonly found (online or otherwise) and using them in a relatively typical way, odds are you’re not going to have a case.

Also remember, two people can own the rights to nearly identical goods as long as it cannot be proven that one deliberately copied the other.

B. Is it worth it to pursue the matter?

There are a few ways to pursue a copyright case. Most people start with a cease and desist letter. You get a lawyer to write a letter asking your copycat to knock it off or you’ll take further action. If the copycat doesn’t stop, you take him to court. Court costs you and taxpayers money. Sometimes a lot of it.

Sure, you can send the C&D letter to see what happens. Maybe the person will stop selling work that looks like yours. But you might want to be emotionally prepared for them to ignore you. If they do, you’ve got a decision to make.

Here’s how to decide. We’re talking about the handmade goods world. Everyone I see claiming copyright abuse on Etsy is selling items valued at far less than $500 each. Most are under $100 each. So do a little math.

How much money is this copycat making annually off of your idea? How much could he/she expect to make long term? If you reasonably come up with a number that exceeds the cost of going to court (say, $10,000), it might be worth it to pursue the matter. If you’re seriously concerned about being misrepresented (and you fully expect to build a highly profitable business worth over, say $250k) and believe the copycat will cost you more than the cost of going to court in disgruntled customers and other soft expenses, it might be worth it to pursue the matter.

If the copycat has a little store on Etsy or Artfire or 1,000 Markets with little promise of building an empire, I don’t think it’s worth it to pursue the case. Instead, I recommend any and all of the following tactics to combat even the prospect of someone copying your work.



1. Consider formally copyrighting your work.
It may cost you, but if you’ve developed a really, truly unusual and in-demand product, people are going to want to copy it. Protect yourself and your work, spend a few bucks, and never worry about copycats again.

2. Innovate.
Make sure you are always innovating, pushing the envelope, and staying ahead of the curve. Never stagnate and become anything like a mass producer. Unless that’s your ultimate goal, in which case have mass-producable items mass produced and keep creating new ones in-house. Innovation is the only way to survive in business anyhow, so why not use that principle to combat copycats?

3. Expand your product line.
Expand you product line to develop completely new ideas, products, and items that your copycat may not be able to produce. If you make pillows, get into bags. If you make jewelry, get into ornaments. Go beyond what is expected for someone in your business and continue to produce anything that sells.

4. Become your brand.
Define your brand more clearly, more uniquely. Create an unusual, bold, and firm statement about your business and stand on it. Don’t be “beautiful stationery for women who like beautiful things”. Create an emotion when you talk about your business. Be, “Impress your friends with the most interesting stationery around.” Be, “Give the people you love comfort and joy”. Figure out what platform the copycat is standing on and stand on a different one. Loudly.

5. Find new marketplaces.
Market in places this person can’t see. Wholesale. Local. See if you can get catalog companies to distribute. Have friends and family around the country scout out other prospective retailers for you. Be wherever copycats aren’t able to follow. And keep on moving.

6. Become the expert.
Get your name out there louder than the copycat does. If you’ve branded clearly and differently and simply, it will be a piece of cake. Google Adwords, publicity (lots of information on this out there), events, sponsorships, promotion, etc. Become the expert in bracelet-making with clay beads and leave your copycat in the dust.

7. Find new target audiences.
Go after a different market, different age group, different income level, different something with vigor. If your current market is mostly college women, develop products specifically for teenagers and 30somethings and even men. If you create affordable jewelry for people on a budget, create an elite line for those with a little more cash lying around.

8. Take action.
Don’t whine. It doesn’t do you any good and it makes people want to poke their eyes out with stakes. Take action. Do something that will help, don't just ramble on about your problems. Taking action may be the single most important difference between a hobbyist and an entrepreneur. Find action-oriented advice that works for you and do it. Leap. Don't hesitate.

Posted at 4:08pm May 25, 2010 EDT