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There is a lot of copycatting out in the world, and it's a constant legal battle fought in higher courts.

For us ants on the ground, grinding away in smaller capacities with little or no permanent legal support, how can we look at a design and say “Hey, that's a copy of my design!”?

  • Looking at these questionable examples as if one of them was your design, how would you evaluate if the similarities between them are enough for you to take further action, such as consult a lawyer?

  • What elements would you look at and compare?

Various ambiguous product designs

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Lol. "I can't believe it's not butter" and "You'd butter believe it"… –  bjb568 May 13 at 0:59
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4 Answers 4

In general, professional graphic designers try not to step on Intellectual Property Rights' toes, as a big part of our industry depends on them.*

What constitutes infringement, though? That is always a legal question, and not one with necessarily hard-and-fast rules. It will typically come down to the opinions of a legal team vs. the opinions of an opposing legal team and whatever the judge/jury decides.

If I worked for Aldi, this would be the lawyer's problem. Not mine.

If I am working for mom-and-pop store down the road, I'd want to sit down and explain my concerns about this potentially opening them up to a legal battle. If they still insist they I proceed, I'd either bow out of the project, or make sure my lawyer drafted up a contract that my client would sign releasing me from liability if they are ever sued.

*That said, I'll acknowledge the irony in that statement, as lots of designers have 'borrowed' fonts and copies of photoshop in their days...

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To attempt to put it into a situation where it might bother you: imagine if you'd created an asset such a character, and then retained licensing right for passive income; how would you then feel about seeing the same character being used with different ears and no hat, and without your permission? What would you look at to compare it? –  DumbNic May 13 at 23:26
    
@user I think in that situation it's really just my opinion. And a big part of that would be formed by what I thought the intent of the potential infringement was. Hard to give a stock answer to it. –  DA01 May 14 at 1:28

I can definitely say that the first thing to do is to look at it in its context. See what the similarities are between all products of a similar or identical nature.

Once you know what the common, acceptable similarities are, you can identify what's unacceptably similar and could be infringing on your rights.

For my example, I'm going to imagine I designed the Kelloggs Coco Pops cereal box on the top left of the following image, and that the Choco Rice cereal sitting on it's right is a bit too similar for my liking.

This is an image of all of the competing products from the largest competitors:

enter image description here

To note all of the most immediate common similarities:

  • Each design has a bowl of cereal in it.

  • Most apart from the first three have left aligned and placed text.

  • Many of the designs include characters.

  • Half of them use varying shades of yellow backgrounds.

To note the questionable similarities:

  • Only two of them have a monkey character.

  • Three of them have a brown character with an element of blue.

  • Choco Rice shares an almost identical colour towards the bottom of the gradient, to the yellow in 'my' design.

  • Instead of using a blue hat, Choco Rice has incorporated an almost identical shade of blue on the bowl instead.

Verdict:

I would definitely take these specific points to a copyright lawyer/solicitor or IP consultant, to see if they are likely to succeed in legal action. I would focus on the copying of the character design, and seek to be compensated for piggybacking off of my designs recognition.

I'd also see if we could issue a warning to Asda for their questionable but less obvious similarities.

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And the lawyer would tell you "Yes, please, I'll take your money!" –  Confused May 13 at 7:09
    
So @Confused your basic stance is that it's not possible to protect your designs? –  DumbNic May 13 at 15:52
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As I understand it some companies are notorious for suing other companies for the use of green in lawncare packaging. There seems to be a presumption here that one needs a good standing to sue (and win). That is not the case. See for instance ( seattletrademarklawyer.com/blog/2007/9/22/… ) –  horatio May 13 at 16:03
    
@user "your designs" is the first issue. What makes them uniquely yours? Where did you get those ideas? How are they assigned and ascribed? Who agreed they're yours? To what extent? Given all creativity is only part original, what part do you claim? How does that hold value? How is it property can be stolen? There's so much to this before you even begin looking at context that you're really limiting yourself by not dealing with the issues brought up in my first two answers to your deleted question. The source of ideas on property start somewhere and determine the nature of it. –  Confused May 14 at 1:45

There are several huge reasons this happens; 1 is because the client wants it like that. The way a client will look at this is "Well Coco Pops looks like this, and it sells, so a design like this will sell for us"

2nd is that particular design, tells a consumer a lot about the product on first glance, and sometimes thats all the time you have to sell the product. I see a yellow box of cereal with some brown in it, I'm thinking Coco Pops, sugar coated rice puffs with chocolate. Is that what my kids eat? Yeah, ok get that. Done!

Its funny in the Movie Poster business, studios come up to you, show you 4 images off IMPAwards, tell you they want it to have X,Y and Z aspects, plus this cloud Steven in sales reckons looks good. "If you can make that happen that would be great." A reason they don't claim infringement on every other studio, is because they know everybody - they know thats what the client asked for. Its nothing personal, we just gotta get this shit approved and paid. Which kinda throws a bit of light on that Spike Lee/Juan Garcia story... You got 4 design studios on the same job, one studio exec at the top, probably liked the coffin box idea and said "do this" but different, with the cloud Steven in sales reckons looks good!

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Hi, you've give an answer to 'why do brands copy other brands designs?' I'm looking for ways to objectively compare designs to one another. –  DumbNic May 13 at 15:17
    
There's no such objective measurement. This should be patently obvious given that it's all creative content. –  Confused May 14 at 1:40

"Property is Theft"

Pierre-Joseph Proudhon from

What is Property? Or, an Inquiry into the Principle of Right and of Government. 1840


"Good Artists Copy; Great Artists Steal." - Steve Jobs

The same thing, clarified:

"One of the surest of tests is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest."

TS Eliot, circa 1920

More succinctly, from 1967:

Igor Stravinsky said to me of his Three Songs by William Shakespeare, in which he epitomized his discovery of Webern’s music: “A good composer does not imitate; he steals.”

Source unknown

A better example:

“immature artists copy, great artists steal.” Knowing what and when to steal is very much a part of the designer’s self-education.

Faulkner, about 1974

Fences

One aspect of property is that it must be defined, measured and assigned.

If you've not done this with what you claim is yours, you've got no hope of doing anything other than paying lawyers to slowly, painfully, and very expensively demonstrate this reality to you. At your expense.

And they'll be very happy to do that.

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We're looking for long answers that provide some explanation and context. Don't just give a one-line answer; explain why your answer is right, ideally with citations. Answers that don't include explanations may be removed.

    
@user the thing is, you can't. There's no easy way to determine that. What constitutes an infringement is a gray area and heavily dependent on context (and lawyers). –  DA01 May 14 at 1:30

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