The (Copyright) Elephant In The Room

Update: if you've found this blog through googling because you love the image, thank you! I'm flattered by your appreciation! However, if you are thinking of getting in touch because you want to use the image for your magazine/T-Shirts/charity/whatever, I'm sorry but the answer is no. Comments are now closed. Thank you for your interest.

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It's every illustrator or designer's nightmare. There has recently been a rash of high profile retailers copying or stealing artists' work. It's become so common that it seems almost like a rite of passage for up and coming designers, but I never dreamed it could happen to me, too. Fortunately, my story has a happy ending.

A few years ago, I was in a struggling indie band. Since we didn't have the money for the usual video promotion for our single, Elephants, I decided to draw a comic book to drum up interest. Now obviously the pop star thing didn't work out, but I worked out a nice little sideline designing T-shirts, posters, album art and other graphics for bands.

A few months ago, I noticed I was getting really odd spikes of google activity in my Flickr Statistics. But it wasn't until last Thursday that I got a tip-off from an anonymous commenter: brandy melville sells this on a shirt... you probs know that though... anyways i love it!



Actually, I'd had no idea, but a quick google confirmed my fears. The shirt was being sold by Brandy Melville, an Italian fashion label now based in LA.


(Source: Brandy Melville US Facebook)

I immediately launched a panicked tweet, with a link to my image and a link to an online retailer, asking for advice and help. I'd never before experienced the power and the *speed* of crowd-sourcing like that. Illustrators and designers retweeted my plea hundreds of times, offering help, advice and words of support. Within an hour, people in my network had located contacts at both the retailer and the designer. Within a day, thanks to the power of social networking, I'd spoken to several lawyers, a copyright expert, staff writers at both online and print style journals interested in the story, and a fashion PR and a high end brand consultant! Another friend looked up the company information, and located their owners, lawyers, and publicists. (I think it was at the point that they sent me a link where I could view their factory and warehouse on streetview, that I realised exactly how powerful a tool crowdsourcing was.)

The internet was also immensely helpful at digging out information about the scale of the issue. Not only was the shirt on sale everywhere from Japan to California (as confirmed by online friend who'd seen someone walking around wearing the shirt in Orange County, and thought "Hey, that looks like one of Masonic Boom's drawings!") but also had been written about by several fashion bloggers.

My initial disbelief and anger turned to fear. I heard so many horror stories from the blogosphere of everything from DeviantArtists finding their work being sold by Etsy users in Bulgaria to small artists getting royally ripped off by large corporations, safe in the knowledge that their victims did not have the money to pursue the matter. The singer of a world renowned rock band told me how his band's name and t-shirts had been pirated by a trendy high street shop whose name rhymes with "turban shout shitters" - without permission, without payment - but they could not afford the lawyers to pursue it.

At this point, I realised I had better seek legal advice, and quickly. I'd like to tell you I crowdsourced a lawyer, but that turned out not to be necessary. Firstly, one of my closest friends is a patent attorney in LA. Although this is completely out of her area of expertise, so she was not able to offer me any official advice, she was able to guide me through the options open to me, and the legal steps I would have to take. In the end, I spoke to my brother, an economist and author, who keeps a lawyer on retainer. Yes, I do realise exactly how privileged this situation makes me, but there are many other resources out there.

But, like I said, this story has a happy ending. Although I was prepared for the worst, a representative from Brandy Melville contacted me late that evening (my time - first thing in the morning LA time.) He admitted immediately that yes, it was clearly my image that they had copied without knowing the source. He apologised and asked how we could "collaborate" to make this legal. Although I was initially sceptical and mistrustful, within 24 hours, they made good on their word and emailed me a contract for a licensing agreement, detailing payment of fees and royalties for my drawing.

Well, colour me surprised. "International corporation acts responsibly, complies with the law" should not be news, but in the climate described above, it was actually refreshing.

As my lawyers read over the contract, I debated what to do. Some advisors were pushing me to demand punitive damages - to which I was legally entitled - as some kind of "punish money".

In the end, I decided to sign the contract, and not pursue damages. I just thought it would be vindictive and avaricious to do so. I do not know if the theft was deliberate, just an oversight or genuine mistake, or if some third party passed off my work as their own. In the absence of that knowledge, I follow the Categorical Imperative. How would I act if I knew my actions and outcomes would be made universal? I consider that a result of the company 1) admitting it, 2) apologising for it and 3) legally licensing the design to be a good universal outcome, not just for my case, but for the copying cases described above. I want to encourage other companies caught in this situation to settle, amicably, not dissuade them from following the example by punishing one that did the right thing.

I asked that in lieu of damages, they make a donation to The Elephant Family, an elephant-based charity, which would be a topical & poetic justice way of showing good faith & restoring karma or whatever.

I personally believe that punishing people for doing wrong is not as effective as rewarding them for doing the ethical and responsible thing. In a consumer society, one often feels powerless with regards to large corporations - but we have the ability to punish and reward corporations with our clicks, our pageviews, our "likes" and our purchases. In this case, Brandy-Melville behaved responsibly and ethically. They did the *right* thing, in admitting and making reparations for their mistake, and they deserve credit for it. Their actions, through being responsive and quick, turned me from an angry litigator to an ally and even a fan.

Are you listening, Urban Outfitters? This is how you respond to a copyright claim.