If you doubled your business, like Shepard Fairey, what would your panicked reaction to a lawsuit threatening that growth have been? Business history tells us you would probably lie as well…and I am sure you consider yourself a good guy.

How a Poster Got a Legal Shredding: Shepard Fairey challenged copyright law but ended up convicted for criminal contempt, is an article posted September 16th in the Wall Street Journal that has numerous public comments quick to point to Shepard Fairey as a thief and a liar. Pointing fingers at one who got caught, just to mix in political opinion about Obama and the Hope Poster completely clouds a long-overdue intellectual property fight defining the fair use doctrine in copyright law to recalibrate it for the digital age. Stanford’s Fair Use Project has an uphill battle attempting to legally support the balance of the heavy economic incentives of copyright protection with free speech and design or artistic expression if they have to wait for the perfect client. Copyright protection looks downright simple compared to patent protection because the financial stakes are so high and the lines of what is and is not infringing are so blurry, just take Apple vs. Samsung where courts view this differently around the world.

Without excusing the outright theft of IP, we need a perspective check on what goes on in business today. Company-wide, everyone is up against short deadlines and under tremendous pressures to grow sales, in a costly and structurally restrictive environment that does not often foster true innovation. It is particularly hard for in-house designers to keep their jobs if they challenge this marketing, sales and upper management design direction. We can just see those Samsung designers sitting around the committee table reviewing the research comps of the Apple iPhone and being told that marketing wants “this.” We see and hear it too often outside as well – retail buyers who go on Pinterest or pull from higher end catalogs to send ideas to their China direct source team. It takes a strong, experienced designer (especially one, like Shepard, who has learned by making mistakes) to avoid the overlooked pitfalls and stand strong with clients, buyers and customers.

In fashion, it is expected for low-priced manufacturers to have already created knock-offs before the Emmy’s are even over, but furniture, product, phone design or other hard goods are very different. In hard goods, it’s all about the money. Money required for research, engineering and tooling. The high cost of R & D investment requires an offset of competitive protection or barrier to entry for long enough to realize a full return on that investment. More often nowadays, that is in the form of patents – many, many patents. Competitive design constraints are also mired in minutiae with things like making a flat rectangular screen look different than the last five. All this is timed in a design/production cycle that is moving faster than patents can issue. Avoiding patent infringement on designs no one has seen yet and sidestepping copyright violations on images or items (like furniture) that appear broadly in the public domain is navigating a field of design and legal landmines. Claiming to have no knowledge is indefensible for any company when patent pending is a clearly marked warning. This is why we personally spend an inordinate amount of design time studying history, competitor products, patent documents and then guiding our clients down the most competitive design path with the lowest risk of litigation.

Even good guys “comp” too closely as was the case for us in ttools vs. IDEO. It is too easy to ignore or dismiss a patent pending marking, especially when your competition is small. But design information is more nuanced and complex than that. How many of you have “borrowed” a Google image to put into a PowerPoint presentation? Mapped out the exact same flow, format or layout of a competitor’s web site when providing a site plan to your web designer? Asked your designers or vendors to recreate a product from a magazine, catalog or Pinterest image? Unless you get launched onto a national stage, creep up too quickly on your competition, or their patents finally issue, odds are that these transgressions will probably be overlooked. It is a financially calculable business risk and as long as you don’t panic, lie and cover-up, like Shepard did, the expensive repercussions from this risk should stay in civil, not criminal court. It is interesting to note in openly posted documents from his case that in Shepard’s case the attorneys found “no cases in which a party to a civil litigation who altered evidence was prosecuted, and only one in which a non-party was charged .”

As the WSJ article suggests, the market is reducing litigation through digital licensing which “reduces the friction involved in reusing content while ensuring that photographers and others get paid for their original work.”  The Associated Press enforced their rights to the source image through the courts. In the end, AP shared in the profits of their photo artistically transformed into an icon, something the photo would never have achieved on its own merits. We can hope the photographer actually got a decent cut, but if he was paid on a day rate of about $750 for that photo, he would be entitled to nothing.

Should design adopt an ASCAP-like fair use licensing system that doesn’t require explicit permission and has compensation levels for owners and originators? If we did have this system, then, Ben & Cherry, (self-proclaimed) Porn’s Finest could have paid a reasonable, market-set fee and created a fair use licensed parody of Ben & Jerry’s ice cream flavors and logo. Ben & Jerry’s could have shared in the profits even though they objected strongly to the moral quality. This open licensing model would certainly be simpler for for design originators to collect payments and enforce their rights without costly lawsuits and provide clearer payment terms and rules on how to give credit where credit is due, but as in Ben & Jerry’s case, the negative effect on reputation for poor quality or bad taste use of the designs could devastate a brand or design consulting career. Then, like Shepard Fairey, it all ends up back in court where no one really wins.

Note from Hazz Design:

Shepard Fairey at RISD 1989

In full disclosure of our personal interest in this news, both Tom and I went to Rhode Island School of Design (RISD) with Shepard in the late eighties, so we have actually met him. I had one class with him our freshman year working together on a 3-D architectural transformation project – you can see him in this picture of our project. Although we were never friends and have not kept in touch, I have always had great respect for his creative mind and artistic abilities. While in college, he created a legendary street art sticker campaign with “Andre the Giant has a Posse” before viral  marketing was even a media term. I am still surprised today at how long-lasting and far-reaching this has been. Last month, in the middle of rural northern China, I saw a worker walking home wearing an OBEY shirt with Shepard’s iconic Andre the Giant image. Neither of us believe that his mistakes make him any less artistic or visionary, and this set-back should only make him a better and more careful designer in the future. – tlh
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