A CAUTIONARY TALE OF INTELLECTUAL PROPERTY IN DESIGN AND THE NAVIGATION OF SENSITIVE TOPICS

I’ve pondered on a working title for this blog and I’ve eventually settled on A cautionary tale of intellectual property in design and the navigation of sensitive topics.

So, this thing happened. I thought it probably would one day...I’m a designer by trade after all. But when it did happen, it cut deep. Real deep. And I’m not quite sure how to heal the wound.

I can’t go into too much detail (as this is a deeply personal subject) but in essence somebody took something that was not theirs and then passed it off as their own. What makes it worse is that I got wind that they might do this and I politely recommended they didn’t, citing all of the reasons why it was a bad idea – insensitivity around the topic used, misalignment of the topic, use of my intellectual project, lack of consent (mine and the other people involved in the project). But they did. They fu&*ing did anyway.

What they helped themselves to was not a commercial piece of work, it was a very emotive and sensitive piece of work. Personal to me, and personal to the others that the work was based on and dedicated to, who worked with me over 10 months to produce it. This piece of work had blood, sweat, tears, joy, anger, and frustration poured into it. It was my baby, my focus. Then somebody took it, misused it, misappropriated it, diluted it and disrespected it in the process. It undermined the Kaupapa of the project.

And breathe. I am angry. I don’t want to have to invest more time on this issue. But the anger is driving me on, forcing me to take back some degree of control and hopefully prevent this happening to anyone else in the future.

Definition time -  What is the intellectual property of a design?

Design intellectual property is creations of the mind. This includes designs, symbols, inventions, artistic and literary works, and names and images that may be used in commerce. Intellectual property is protected by the law through copyright, patents, and trademarks.

So if you’re *lazy *time poor*a thief *naive *ignorant or *all of these then you are not only stealing intellectual property, you are also stealing the creation of someone’s mind. And it happens more often than you think: 

• That image pinched off Google.
• The photo used without crediting the photographer.
• That font copied without a purchase.

There is an inherent risk in creating and releasing design/art/composition in that the integrity applied in the making will be undermined by how it is ‘used’ once it becomes public. With that in mind, I did all I could to safeguard the stories told in the work I created and there was a clear process in place to ensure that those who collaborated on the project had the same ethos – care and sensitivity for nature of the subject and the preciousness of the artworks. For all of the meticulousness in following correct processes, our carefulness and integrity has been undermined by someone who paid no attention to the sensitivity of the project at all. That disregard hurts someone.

The work that was stolen from me concerned the real-life stories of real life people. I was entrusted to create and curate their stories through an artwork. This is what design is all about when you drill down... client comes to designer with a brief. Designer interprets this brief and creates a visual solution. End result? Stories get told that are memorable in their composition and unforgettable in their execution. And when it all goes to plan the stories live on long after a launch date / live date / screening date etc. The sensitivity involved in this particular design is not to be understated. 

Would I have been so upset the intellectual property stolen was not on such a sensitive subject? Maybe not. 

This is a good learning opportunity though. 

Inspiration vs Imitation

 This is also a wonderful article on imitation vs inspiration - Credit: https://medium.com/@saldanabilly4/the-difference-between-inspiration-imitation-efd61dfb28eb

Lyndsay Kramer wrote a fabulous piece back in 2018 entitled Things every designer should know about intellectual property & infringement. She notes that as a designer, inspiration is all around you. You might visit a new city and find inspiration in its unique architecture or in a painting, a sculpture, or another work of art. You may find yourself emulating the artists behind those works in your own projects. Nothing exists in a vacuum, your designs included, but there’s a line between being inspired by another work and plagiarizing it. That line is called copyright infringement.

As a designer or artist you need to know exactly where to draw the line between letting someone else’s work inspire you and just plain copying it.

Let’s talk about inspiration. Perhaps there’s an artist out there who really inspires you. If you use that inspiration in your own work, when exactly does inspiration become plagiarism? Plagiarism means imitating another person’s work and passing it off as your own without giving credit to the originator. Inspiration turns into imitation when copying what is considered the crux—or central idea—of the work.

Say another artist’s use of bold color and geometric shapes inspires you. Using the same color schemes and shapes would count as imitation, while interpreting these ideas differently and applying them to your own work in new ways would be considered inspiration. The key is that your application of the idea needs to be transformative, meaning your inspired work needs to be clearly different from the main idea that makes up the original artwork. Here’s how to play it safe when you're unsure: always avoid imitation and aim for transforming and evolving an idea to a point where the connection to the original is not visible anymore.

My advice is to always play it safe. Knowing who owns which rights to a design and how it can be used is crucial. If you’re not sure about whether a design idea is fair use or could potentially be infringement, play it safe and avoid using that design. 

Navigating sensitive topics in art and design

The issue becomes more complex when art and design involves sensitive topics. At this point you are no longer only considering imitation of another artist’s work but you are also in danger of treading on the autonomy, safety and empowerment of the human subjects who are part of the art/design. In these instances, a conversation has already happened between the original artist/designer and those human subjects where values, boundaries and privacy have been negotiated and an agreement reached. It is highly unethical and sometimes dangerous to ‘use’ that artwork/design in another way where those subjects are not able to negotiate the further use of their stories. At the heart of the issue is the intent behind the story telling, and when that changes so will the willingness of participants to potentially have their stories used in a new way, to tell a different story or in a different context/space. 

• It is imperative that information is made available up front about who will see the stories, how they will be stored, how they will be used and that they remain anonymous.
• People must be fully aware of the intent of the project to ensure that the kaupapa of the art/design is aligned with their own beliefs and values.
• People’s stories are taonga – precious and unique – they are not trinkets to play with or use for adornment.
• Sharing personal stories comes with risk for those who share them – they must be able to weigh up the benefit of sharing them with the risk of sharing them. That calculation relates centrally to the way in which those stories will be used (where and how and with whom).
• Consent is a critical issue for people who have been harmed. To use their experiences without their consent is a further act of harm against them.
• If you want to use pieces of another’s artwork for your own work, consult the artist, request permission, have a conversation about your project and why you would like to use the work. 

So what happened?

I alerted the relevant people to the theft of my intellectual property and the insensitivity of displaying the work without consent of a/myself and b/the others involved in the project.

I requested the work be removed and never displayed again.

I raised the question of using this situation as a learning opportunity for all involved.

I’m still unhappy that it happened in the first place, but I’m glad I stood up for myself and those from the project who couldn’t.

See you next month.