Imitation is not flattery, it’s stealing
Guest post by Ophelia Chong, Founder and COO of Stock Pot Images
Did you know that the can of Coca Cola you are holding has a color and logotype that is trademarked? Or that you cannot use Tiffany blue on any product? Even that yummy Cadbury bar has it’s own shade of purple.
Most of us live our lives without thinking about intellectual property; we grab our smart phones, put on our favorite athletic wear and jump into our hybrids. But did you know just about any product you use is covered by copyright laws? You would never think of using the Nike swoosh on a line of shoes you are manufacturing or taking the design of an iPhone and creating your own line of smartphones. You wouldn’t because someone would say to you eventually, “By the way, that is so and so’s logo, I really don’t think you can use that.” However in the cannabis industry there is a culture of being underground and transient; there is no one to say “oh man that bar sure looks like a Hershey candy bar” because the industry was in a gray area that created a legal limbo and products were sold at small gatherings or in stores that were also operating in the gray.
TIMES HAVE CHANGED
Twenty-eight states have legalization of cannabis, either medical or recreational; this means money pouring into companies and the rush to market with greater oversight. In the last three years there has been greater enforcement of IP laws against companies that have taken designs lock stock and barrel from major corporations because those companies now can be found via websites and state registries. With greater regulation come rules of conduct that other industries have to adhere to. You would not think of taking an idea from another person and claim it as your own, so why would you appropriate a well known brand? It is one thing to snub your nose at the corporations; it’s another to loose your entire company for doing that snubbing.
CASE STUDIES: PRODUCT DESIGN
One case from 2014 should have sent warning signals out: Tincture Belle vs. Hersheys.
Tincture Belle appropriated the designs, logotypes of iconic Hershey brands, from Reese’s to Almond Joy. How similar are these names: Hashees, Ganjay Joy, Hasheath or Hasheats to familiar Hershey brands? They did not stop there, they also took the look and feel of each Hershey brand. Tincture Belle settled out of court and agreed to destroy all edibles and remaining packaging.
But it didn’t.
Two months ago I walked into a local dispensary and was perusing the wonderfully designed packages on the shelves, as I walked across the store I noticed a wall of snack chips. My jaw dropped, hit the floor and slapped back into my face; there in front of me was a bag of medicated chips named “Weetos”, the colors, the fonts, the branding was “Cheetos”, also on the shelf was “Fruit Poofs”, from the same company Baked Goods. The next visit to the same dispensary showed the products removed from inventory.
There are two questions here:
- Why would a dispensary sell products that are they are liable for copyright damages and
- Why would any start up put themselves at risk for civil damages and injunctions?
Baked Goods cannot argue that they did not know they were infringing on Frito Lay’s trademarks, nor could the dispensary. Cheetos has an iconic look that has millions invested in the branding; and as one of their top brands Frito Lay is going to go after any company that could damage that brand. It is also a crime if the defendant infringed an existing copyright willfully for commercial gain; not only will you loose your company, you will be looking at possible criminal charges. This applies not only to the manufacturer but also to any business distributing the infringed products. And here’s the third shoe that will drop on your business: The law provides a range from $200 to $150,000 for each work infringed. The infringer pays for all attorney’s fees and court costs. I have done a thorough web search for the whereabouts of “Baked Goods” and have come up with nothing; dispensaries are most likely looking at the cost of carrying infringing IP products versus the small income gleaned from Baked Goods and not carrying the products. The lesson here is that legal fines and costs trump a good product, but new branding could bring Baked Goods back.
FAIR USE AND SOCIAL MEDIA
First question you should ask in an interview with a social media consultant is: “What is fair use?”
If they cannot answer or define it correctly then you have someone who will not only use other people’s’ work without permission but also get you on the radar of the people who own the copyrighted work. The least that could happen is a take down notice from Instagram or Facebook (of which, do you really want them on your radar?) to a fine and possibly the wrath of the creators’ social networks.
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary, education and criticism; it does not mean you can claim fair use in using copyrighted material for your product. I can use an image of Frito Lay’s Cheetos in this article as commentary, but I cannot use it to sell my products.
Social media is one of the biggest infringers of copyright. I hear “but I gave them credit on Instagram” often and I cringe. That will not protect you from having a take down notice sent to you to the extreme of a fine for using copyrighted material. You need express permission from the creator to use it for commercial purposes; if you are using it to drive traffic to your business, then it is for commercial not personal use. No, fair use does not make copyrighted content fair game for a business. The Copyright Office explains, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
RULES OF SOCIAL MEDIA AND COPYRIGHT:
If you answer yes to any of these, then don’t post.
- If you link back to the source and list the photographer’s or artist’s name
- If the picture/artwork is not full-sized
- If you did it by accident (“I’m innocent!”)
- If you didn’t claim the photo/art was yours
- If you’ve added commentary in addition to having the photo/art in the post
- If the photo/art is embedded and not saved on your server
- If you have a disclaimer on your site (a disclaimer will not stand up in court)
- If you immediately take down a photograph/video/artwork if someone sends you a DMCA notice (you do have to take it down, but it doesn’t get you off the hook.) None of that releases you from liability. You are violating copyright if you have not gotten express permission from the copyright holder or are using photographs/art that are public domain, creative commons, etc.
DO’S AND DON’TS
- Do hire an attorney that specializes in intellectual property to protect your ideas and save yourself stress and money by asking “is this okay?” when you are in the design stage of your product.
- Do respect the creative ideas of others as much as you wish others to respect yours, don’t build your business on the backs of artists; rather contact them tell them you love their work and commission work that will not only help the artist but give your company a stronger brand.
- Don’t appropriate a photo, a piece of art, a logo, any branding that has been trademarked/copyrighted for a commercial business. Fair use only applies to commentary, criticism, teaching and research. Remember by giving the “man” the finger will only end with the loss of your figurative “finger” and business.
- Don’t appropriate, it only shows that your product is not strong enough to stand on it’s own.
Our industry is fairly new, which on one hand makes the ground shift daily, but we also have the chance to create an industry that can change the paradigm of how business is done. Let us lead the way in design, farming, manufacturing, and distribution; let us blaze that path that others will follow rather than travel on a well-worn road that allows no innovation.
DMCA: Digital Millennium Copyright Act of 1998
Prosecuting Intellectual Property Crimes
Hershey’s vs. TinctureBelle LLC and TinctureBelle Marijuanka LLC.
United States Patent and Trademark Office
WIPO: World Intellectual Property Organization
About the author:
After graduating from the Art Center College of Design in 1989, Ophelia Chong traveled the world for a few years and found her calling in photography. She began her career as the photographer for David Carson at Raygun Magazine and then moved on to Sony Music, Mercury, Epitaph, and Interview Magazine. Her next career phase began with the leap from music to the creative director at Strand Releasing, distributing over 50 films to Sundance, Toronto, New York, Venice, Berlin, and Outfest film festivals. As creative director for Slamdance Film Festival for 10 years, she never got to ski once at Park City. Later, she took on the stock and assignment photography business, beginning as the creative director at Workbook and Workbookstock. From 2005 to the present, she has specialized in marketing and designing for photographers, photography monographs, and photography agencies. Ophelia teaches Marketing and Self-Promotion to photography students at the Art Center College of Design and has been an art director in the MFA writing program at CalArts since 2008.
Ophelia is also the co-founder of Asians Americans for Cannabis Education, along with Tiffany Wu and Monica Lo. Asian Americans for Cannabis Education (AACE) connects and empowers Asian communities to educate the public on cannabis issues, news, and policy affecting Asians worldwide. From her advocacy work, Ophelia launched Stock Pot Images to effect a visual revolution.