Notes on Licensing

I’m a big fan of automatic income, so I was excited to learn about CardsInk, a sort of Threadless-type site for greeting cards.  The web site made it seem so easy.  Submit a design, get votes, get paid.  I thought I would submit my Tanks design, so late this afternoon I signed up for an account.

I was dismayed to read in the user agreement, however (ALWAYS read the user agreement, even if it’s long), that if you submit a card design, CardsInk owns the license to it, exclusively, forever.  They only pay $100 for a successful design (plus a potential $50 for reprints), so in the end I had to say no.  Frankly, the amount of time I put into Tanks! is worth way more than $100 to me, and so is the potential profit from printing and selling the cards myself.  That might not be the case for hundreds of their other members, which is fine, but I find it a little underhanded that they make NO licensing info available before you sign up.

On the other end of the spectrum, Mrs. Grossman’s sent me a really generous licensing agreement today.  They agreed to let me make and sell my mandalas and prints, and to display them wherever I like for ten years for free as long as I credit them for the original sticker designs.  More than fair, I think.

They also posted one of the images to their Facebook page and commissioned a mandala with instructions to put on the wall of their factory store.  And they’re sending me free stickers!  It really doesn’t get any better that that.  No wait — actually, it does, when MRS. ANDREA GROSSMAN HERSELF says that the mandalas are “the best and most creative use of stickers I have seen in a long time.”  The six-year-old inside me crapped her pants when I read that.  To celebrate, I put all of the mandalas up in my Etsy shop, with the requisite line of credit:

Original sticker designs by Mrs. Grossman’s Paper Company.

Bottom line: always do your homework when it comes to licensing — whether you’re the licensor or the licensee.  Some companies that seem cool and indie might have some shady fine print, and some bigger, more established companies might be surprisingly supportive.  And of course, never ever sell work that uses someone else’s designs without permission — even if you bought it.  Owning an example of a design does not equal owning the rights to that design.

Patch Together

Got an idea for the next hot toy?  Put it to the test over at Patch Together.

Here’s how it works: you submit an image of your awesome resin or plush toy design and Patch Together members vote on which designs are worth prototyping.  If your toy gets chosen, it will go up for pre-order in the Patch Together store.  Once it has enough pre-orders (20), your toy will be produced as a limited edition and you share the profits with Patch Together (40% you, 60% PT).

This is a pretty good deal if you consider that average licensing fees max out around 5% for artists and you get to keep the rights to your designs.  If you want to skip the contest part, you can pay PT outright to manufacture your toy.  They’ve also recently started accepting ideas for Flash animations and “products in general.”

“Mason” the vengeful birdhouse by Wickedbird.  Currently available for pre-order.

Ask Biz Miss: Licensing

I was approached my someone who wanted to talk to me about licensing my work.  I was a little skeptical since I’ve never been approached with an offer like that and I wouldn’t know where to begin to look up the legitimacy of a licensing company.  Would you have any tips or advice for a newby starting out that would be interested in licensing their work?  I would hate to get involved in something that would not be in my best interest or in the interest of my work.

I’ve only ever licensed my work to other small businesses, so I don’t know what kind of situation you’re in, but in general, if someone is asking to license your work in the first place, they’re probably acting in good faith.  Most folks who aren’t will just rip off your designs with poor (or in some cases, even exact) copies and won’t ask you at all.  That said, businesses act in their own best interest and are happy to take advantage of your naivete.

A standard licensing percentage for a small business is 5% of gross sales, and the contract is often exclusive to the particular product for a limited time.  For example, a company might license your design to print on notebook covers.  Your agreement would likely give them an exclusive license to print on notebook covers  for two years (which may also exclude you from doing this if you’re not careful).  Under this agreement, you would still be able print your design on t-shirts, fabric, etc., or license them to someone else who would.  No matter what, you should never sign an agreement until you’ve seen a sample of the product that’s being made with your design.  It’s the only way to make sure you’re associating your work with a quality product.

If you’re looking at a much larger licensing deal with a bigger company, I would suggest hiring a lawyer to help you negotiate a fair contract, at least the first time around.  The Renaissance Business Center here in SF can point you to some free and cheap legal advice.  You can also find a good counselor there.

I can also recommend the book Your Crafts Business by Nolo Press.  Nolo is a do-it-yourself legal publisher.  There’s a whole chapter in there on licensing and the book comes with sample agreements.  Also, this article recently posted on Crafty Chica is helpful.

I hope that any deal you make is both fair and profitable.  Good luck!

Lessons From a Small World

If you’re up on the news in the indie craft world, you’ve probably heard about the “Spoonflower Scandal” in which a member of the site uploaded a fabric design to her account that was actually drawn by Yasmine Surovec of A Print A Day.  This design won their “Fabric of the Week” contest and was put up on the Spoonflower Etsy page before a Print A Day fan brought it to Yasmine’s attention and it was taken down.

In my opinion, everyone in this situation acted less-than-graciously, except for Yasmine (who sent the kindest cease-and desist letter I’ve ever seen) and a few calm commenters.  The offender obviously fouled up big-time by submitting someone else’s work to a contest (as a professional artist herself, she should really know better), but if you read her comments, you’ll see that her mistake was really 50% ignorance, 25% arrogrance and 25% cutting corners.  No real malice was intended toward Yasmine.  She just wasn’t even thinking about her.

I was perhaps more alarmed, though, by the thorough lashing and exposure she received at Spoonflower.  Several of the braver commenters let fly a few choice insults under their own names, including one commenter who called her an “asshat” and then posted the artist’s personal web page so others could do the same.  Other people e-mailed their wrath directly to the offender, some anonymously.

Clearly, there are some lessons to be learned here, the most obvious of which is: don’t use other people’s work, and especially don’t submit it to a contest and then brag about winning.  But there are some less obvious lessons here as well, like:

  1. The indie craft world, and especially the online indie craft world, are very small places.  There’s no way you can post a neo-mid-century-Scandinavian-type nature graphic to an online craft/design site and expect other viewers not to know where it came from.
  2. We indie designers and crafters are scrappy folk.  Those of us who manage to make a living off of our work are mostly just scraping by, but we continue to bust our asses creating things because we’re passionate about it.  It’s no wonder, then, that we defend our designs with our lives.
  3. Rip-offs happen all the time.  Mostly it’s done out of laziness or ignorance, but rest assured, if you’re an artist with any decent online exposure, it will happen to you.  I had to send a cease-and-desist last Christmas to a big commercial web site that used one of my images in their newsletter without my permission.  The editor was rushed and busy and just got lazy about research/citation.  She apologized immediately and did her best to make it up to me.
  4. Copyright law is confusing, so familiarize yourself with the most popular licenses at Creative Commons and the U.S. Copyright Office.  Then make sure you know what the license is and who it belongs to for any image you plan to use.  I have a friend who sells embroidery patterns, and she constantly has to inform crafters that they can’t sell items they’ve embroidered with her designs unless they purchase a commercial license from her.  People don’t read the fine print on the package.  They just assume that since they paid for the pattern, they can use it for whatever they want.

Do you have any other insights about this situation, or copyright and indie design in general?  What do you think is the appropriate penance for this kind of sin?

Finally, Some Validation

I was delighted to read this article/interview by Jenny Hart about how important it is to keep accurate, current books.  She’s a super-savvy Biz Miss with a veritable empire of embroidery products.  Her emphasis on bookkeeping makes me feel a little more validated and a little less geeky for having taken all those Quickbooks classes.

Also, somebody (Gary Taxali) finally gave a huge company (Google) the finger (literally) for soliciting original creative work in exchange for “exposure.”  It has always floored me how ready companies are to try to take advantage of creative professionals, especially those companies who can afford to pay them fairly.  I have personally been asked for free products or services in exchange for “exposure” on many occasions and I don’t understand why I’m not supposed to be insulted by this.  I mean, you wouldn’t suggest that a lawyer work for you for free because you’re providing them with “exposure” to the dozens of “potential future clients” watching them work in the courtroom, would you? (NY Times via The Present Group)

A New Perspective on Getting Ripped Off

Two weeks ago I did some contract production work at a kids’ toy/book company.  While having lunch in the company kitchen, several employees got into a rollicking discussion about their various techniques for ripping off ideas from trade show exhibitors.  Having just exhibited at my first trade show, this naturally made me very nervous and kind of angry, so I vented to friend about it.

I said, “I knew big companies had no qualms about ripping off small designers, but I didn’t know that it was the sole source of their creative development!”

“So what?” My friend said.

“So that sucks!  I don’t want to spend my whole life fighting off people who try to steal my ideas!”

“So don’t fight them” he said.  “Just move on to the next idea.  By the time they steal it, you’ll probably be bored with it anyway.  Besides, if you’ve only got one idea, you won’t last in business anyway.  Look at it this way: it’s like Apple and Microsoft.  One company makes money by constantly releasing brand new products.  The other makes money by watering down those products and making them more affordable and available to the mainstream.  Does Steve Jobs stomp his feet and sue Microsoft every time they steal an idea?  No.  He doesn’t care, because he’s already got ten more ideas in the works.  Apple may be a smaller company, but it’s better respected and still does extremely well financially.  Which one would you rather be?”

Rip-offs and Licensing

Tonight I attended an intimate little gathering at the Stitch Lounge in San Francisco to promote the new Sublime Stitching book by Jenny Hart. If you’re a member of the craft community, you probably recognize items from her hip embroidery empire. I recently bought some Sublime Stitching materials for my sister’s birthday (that she loved) so I was excited to meet Ms. Hart. She was very generous, friendly and forthcoming.

Everyone who was at the table tonight owns and runs their own creative business. Unsurprisingly, talk soon turned to rip-offs. A lot of good points were made, and I’d like to share a few with you:

  1. Some people steal without remorse. Many big companies send scouts to small events like local craft fairs, looking for ideas to steal. Many of them have no qualms about ripping off small designers or artists, because the artists either a) never find out, b) don’t have the courage and/or resources to pursue legal action c) require such a small settlement that it is still financially worth it to be shady. The only way to stop this, is for every ripped-off artist to sue. If you’ve been ripped off by a bigger company, I’ll bet it wouldn’t be too hard to find other people who have been similarly robbed through web sites like Etsy or Craftster. Then everyone can pool their resources and file a much more dangerous class-action suit.
  2. Just because you bought it does not mean you own it. This is often confusing for people. It certainly was for me. If you buy a font, for example, you are buying a license to use it, including on things you might sell. You can use it to create printed note cards, for example, and selling those note cards is well within the terms of that font license. But different licenses use different terms. It is usually not okay, for example, to buy a knitting pattern for a scarf and then sell the scarf you made from it. Similarly, it is usually not okay to buy an embroidery pattern and then release a line of dishtowels you made using those patterns, even if you made them all by hand, designed the colors and placement of the images yourself, etc.
  3. It’s easy to borrow legally. Many designers, including Sublime Stitching, will let you license their designs. Though fees vary, a standard licensing agreement usually involves paying the artist about 5% of the gross sales of any product on which you used their design. So if those dishtowels sell for $10 apiece, every time you sell one, you would pay 50 cents to the designer of the embroidery patterns you used. That said, a licensing agreement is just that — a signed agreement between the licensor (the artist) and the licensee (you with the dishtowel line) that often includes certain conditions of use. Maybe the designer only intended for them to go on baby products, not dishtowels. Maybe your dishtowels are made using toxically produced fabric, or are just plain ugly. In any case, it is the artist who gets to decide whether or not and how their designs are used.

I think that’s enough for today. More on intellectual property in posts to come.