American Crafts Project Drafts Preventive Agreement to Help Prevent Design Rip-offs

n an economy where Americans continue to expect more for less, the playing field gets trickier for craftspeople. More than ever, large retailers and catalog companies are looking for new and different designs to recreate, mass produce, and sell at low prices to an eager consumer public. The problem? Many craft artists are lured by the promise of big orders and big money and rarely take adequate precaution against having their work copied, such as obtaining copyright registration, obtaining a patent or trademark, or having the potential customer agree, in writing, not to copy the item. While any expert will agree that it’s imperative — and relatively easy — to take preventive measures, they also understand how these precautions get overlooked. “It’s one thing to sit back and talk about the problem theoretically,” says Darren Pogoda, an attorney with the International Anti-Counterfeiting Coalition (IACC) in Washington, D.C. “But in reality, the market moves very quickly, and it’s easy to see how these things happen.”

In most cases, intellectual property theft goes un-detected and unreported. In fact, U.S. businesses lose approximately $200 billion a year to counterfeiting (which applies specifically to trademark and patent infringing), according to the IACC. While much of that number is attributed to big business being knocked off by small companies (like counterfeit handbags), instances of larger companies stealing designs from entrepreneurs is becoming more common.

In the last several years, The Crafts Report has reported individually about cases that have been fought and won (or settled) against large retailers who were accused of copying the designs of craft artists. Unfortunately, such cases are becoming too numerous to report individually.

Craft artists can’t afford to sit back and wait for copyright infringers to steal their designs. The time has come for better, more standard preventive measures, says Joel Joseph, chairman of the Made in the USA Foundation and the American Crafts Project, which has fought, and won, many such cases for craft artists.

Joseph has created a standard agreement for artists to use when dealing with any company that requests a sample of their work, or places an order, or purchases the work outright. The agreement, says Joseph, is modeled on a standard non-compete/non-disclosure covenant that is negotiated between companies in merger discussions, so that if the deal doesn’t happen, neither company is allowed to use or share inside information from the other company.

“ Such an agreement lets the other company know you’re serious about your ownership of your designs,” says Joseph. “In most cases, the purchaser will be less likely to copy your work, knowing they’ll be in violation of an agreement laid out beforehand.” They’ll also be aware that you’ve already consulted an attorney and know your rights, he adds.

Joseph says he continues to get calls from artists who claim their designs were copied after they sent samples of their work to potential customers, but that they had not formally copyrighted their designs. Registering your work with the U.S. Office of Copyrights (www.copyright.gov) is voluntary, and while copyright begins at the moment the work is created, you will have to register if you wish to bring a lawsuit for infringement of a U.S. work. Also, registered works may be eligible for statutory damages and attorney’s fees in successful litigation.

Regardless, Joseph says the American Crafts Project handles as many as 15 cases at one time, and since its inception in 1999, the organization has fought 25 cases of copyright infringement for craft artists against large retailers. “We haven’t lost a case yet,” says Joseph. All cases have either resulted in monetary judgments, settled out of court or the retailer has stopped selling the items in question.

Bernadette Finnerty is a contributing editor of The Crafts Report.