knockoffs – Techdirt (original) (raw)

How Not To Freak Out When Someone Copies Your Product

from the monkey-see,-monkii-do dept

One of the things we’ve talked about for decades at Techdirt is that companies need to not freak out so much when someone copies their product — whether physical or digital. There are some who believe you need to stop copying at any cost. That always seemed silly for multiple reasons. First, if you have something people want, it’s going to get copied. At some point you have to do something of a cost benefit analysis of whether or not it’s truly worth it to go crazy stopping every copy. Second, if you truly created the original, then you have a leg up on any copycat, in that you have a much better understanding of just about everything: you understand the customers better, you’ve built up brand loyalty and you understand the hidden reasons why people like your product. So you’ll almost certainly continue to innovate above and beyond any copycats. Third, many efforts to stop copycats end up punishing your actual customers, saddling them with a worse product because you’re so overly concerned about copying. This is a story of a company that has gone in the other direction.

For the last year or so, I’ve been telling a bunch of people about my exercise regime (my coworkers are sick of hearing about it). It began two years ago when I saw a Kickstarter project for Monkii Bars 2 — a suspension training system not unlike TRX (if you’re familiar with that), but a lot more portable. If you spend time on Kickstarter, there are a ton of exercise equipment products there, but nearly all of it looks like most late night infomercial crap (also, I noticed that most of them are based in LA, which perhaps isn’t too surprising). Most of them look snazzy, but also are likely to be the kinds of things that no one ever uses for more than a week. The Monkii bars didn’t look like that at all, though. First, it was from a Colorado company, and the team who made it seemed more like the kind of people I’d actually hang out with, rather than the folks who pitch most exercise equipment. More importantly, though, something about the way the Monkii Bars worked just seemed like a perfect way to get a workout. For whatever reason, I knew that they wouldn’t be a “use it for a week and forget about it” kind of thing (though, I did still at least worry a little bit they would turn out that way).

But what really pushed me over the edge in deciding to back the project was two things. First, they not only had a successful Kickstarter campaign under their belts, but you could see that many backers of the new campaign were returning customers who raved about the original. That’s always a good sign. Second, and more importantly, on their own website they had a page on how to make your own monkii bars, with the following:

Our number one goal here at monkii.co isn?t to sell monkii bars ? it?s to get people to be more active. So when we started hearing that a small number of people thought monkii bars were too expensive and that they could make them on their own, we decided to help them. We reached out to Cooper over at GarageGymReviews.com who has some experience making DIY versions of products. So whether you buy monkii bars from us, or make your own, it?s time to get wild.

To me, that showed tremendous confidence in what they were building. It made me trust them more, and even though they were showing how to make your own for much, much less than the cost of buying the full product from them, it made me much more willing to pay them for the product.

It seemed many others felt the same way, and the Monkii Bars 2 raised over a million dollars (much more than the ~$100k of their first product). There were some manufacturing delays (ah, Kickstarter…) but they were pretty upfront and transparent about the reasons for the delays, including making the product significantly better between product launch and delivery. I got mine over a year ago, and they were exactly what I hoped they would be. They were a perfect way to get a really good, thorough workout nearly anywhere. I’ve used them at home, at the office, in hotels, at parks, while camping and more. I take them basically everywhere I go and, somewhat incredibly, I always feel like I want to work out more when I use them (in contrast to other things, or going to the gym, where I tend to want to just get it over with).

And, of course, once the 2nd version was out, the monkii’s updated their DIY page, with details on how to make your own of the 2nd version as well. Last fall, the company’s founder, Dan Vinson, went on the CNBC show Adventure Capitalists, which is basically a “Shark Tank” for exercise equipment, and what amazed me was that just as one investor is getting really into investing, Dan mentions the DIY page… and the investor initially flips out. He actually threatened to pull the investment because he thought Dan was crazy to tell people how to make their own, and thought that would sink the entire company. Eventually that investor did come around, and you could see a light bulb go off in his head that building trust and a community means you can sell a product even when you’re teaching people how to make their own.

That brings us almost up to the present day. A few months back, Monkii launched its third product, called “Pocket Monkii,” which is an even smaller and more portable version. I will admit that I was backer number 38 out of over 8,000. Given my experience with the company and the Monkii Bars 2 it was a no brainer.

And then last week, in an update to the Kickstarter, they mentioned that others were knocking off the Pocket Monkii. The update was really notable. I’m so used to seeing companies flip out and freak out about copycats, and get angry and aggressive. But, the Monkii guys seem to find the whole thing fairly amusing. Even the subject line, “imitation is the sincerest form of flattery” gives you a suggestion of how they see this.

As many of you already know, we?ve been knocked off! What started as a blatant copy of our content (literally pictures of monkii Dan and pocket monkii with the logo removed), has now turned into their own brand and imitation of our product – a cheaply made and low quality one at best.

They do note that they’ve asked for versions using monkii’s own images to be taken down, with mixed levels of success, but they don’t seem too bothered by it and literally suggest that everyone have a good laugh about it:

So what now? Well, let?s take a moment to have a good laugh:

1. They keep switching the product name, and it just keeps getting worse and worse? From ?Fitness Pocket?, it has now morphed into ?Body Pocket? ? We don?t know about you, but that just doesn?t sound right to us.

2. For some reason, they think that their product looks better upside down.

But then, the real kicker. The update notes of the copycats: “They used our old design that doesn?t work very well.” Followed by:

Wait, what? An old design that doesn?t work very well? But that?s the design I see on your Kickstarter page and in the video.

Here?s the thing ? we always take beta-monkiis? feedback into account and improve the design up until the last possible moment.

The problem with the old design was that it was annoyingly difficult to close the case, and if you could actually manage to close it, it looked completely ?wonky.” Through beta-monkii feedback, we realized that we were stuck in our old ways ? trying to apply the existing kit design for MB2 to pocket monkii ? when the best path forward was to take a fresh look at our new product and design a case built from scratch specifically for it.

That?s exactly what we did ? we?re proud to say it?s a much better design and we know you?ll love it. Don?t worry ? it still has the same look, feel, and form-factor. We even stepped up the quality a notch. Oh, if you added the Outdoor Anchor Accessory, you’ll be pleased to know it features a sleek way to carry that in the case too.

This is another perfect example of what I discussed at the start. The original creators understand the market better, they understand the customers better and they understand the product better, which lets them innovate faster and better. And, rather than freak out about copycats, they just laugh at them and build a better product. And, really, if you want a “knockoff” I fully expect that the head Monkiis will end up putting up a DIY plan at some point for the new version as well. But it still won’t be as nice as getting the real, professionally made version.

Filed Under: competition, copiying, copycats, counterfeits, innovation, knockoffs, monkii bars
Companies: monkii

Chinese Knockoff Maker With A Sense Of Humor Files Design Patent On Leaked iPhone 5 Design

from the joke's-on-you dept

crashsuit alerts us to the bizarre story that a Chinese phone knockoff maker, who took some supposed “leaked” photos of the still unannounced iPhone 5 and not only produced a knockoff device called the Goophone I5 (running Android, naturally), but also is claiming to already have a Chinese patent on the design.

Of course, we’ve talked about Chinese manufacturers creating rather interesting mashups of phone ideas by ignoring patent, trademark and copyright laws (sometimes all at once!). And the decision to file for a design patent is made that much more amusing when you consider how design patents were at the center of some of Apple’s big case against Samsung (for the non-patent nerds out there, design patents are a bit different than what most people traditionally think of as patents, and some actually suggest that they’re really closer to trademarks than “patents” in that they really just cover a basic design look and feel, rather than a method or process).

That said, the details of this “Chinese patent” are a bit sketchy. Was it just applied for? Or granted? No one seems to be saying. It could just be a joke. That said, we’ve been noting for quite some time that while the US has been pushing China to respect patents a lot more (due to lobbying pressure from US companies), China has been mocking them all by suddenly “enforcing” patents much more stringently… but almost always against foreign companies and to benefit Chinese competitors. So, it’s not completely crazy to suggest that a Chinese company might be able to secure such a patent and use it to stop Apple, though it would take a fair amount of chutzpah (or whatever the Chinese equivalent is) to make such a claim.

Filed Under: android, china, design patents, goophone, iphone, knockoffs, patents

Even If Samsung And Apple Copied Every Last Detail From Each Other, Who Cares?

from the important-question dept

With the Apple/Samsung case finishing up, James Allworth, over at HBR, has an excellent post wondering why it matters if one company copies from another? A few years ago, we wrote about a book that pointed out that copying and then innovating on the copies is a perfectly reasonable and important business strategy. Allworth points to a new book (one I’ve been looking forward to for a while) by Chris Sprigman and Kal Raustiala (who we’ve quoted numerous times) called The Knockoff Economy: How Imitation Sparks Innovation.

He then takes the lessons of that book and applies it to the Apple/Samsung fight, noting that even if we assume they were imitating each other, that seems to have only encouraged further innovation, not less:

If you go back to the mid-1990s, there was their famous “look and feel” lawsuit against Microsoft. Apple’s case there was eerily similar to the one they’re running today: “we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it’s impossible for us to keep innovating.” Apple ended up losing the case.

But it’s what happened next that’s really fascinating.

Apple didn’t stop innovating at all. Instead: they came out with the iMac. Then OS X (“Redmond, start your photocopiers“). Then the iPod. Then the iPhone. And now, most recently, the iPad. Given the underlying reason that Apple has been bringing these cases to court was to enable them to continue to innovate, it’s hard not to ask: if copying stops innovation, why didn’t Apple stop innovating last time they were copied? Being copied didn’t stop or slow their ability to innovate at all. If anything, it only seemed to accelerate it. Apple wasn’t able to rest on its laurels; to return to profitability, and to take the mantle they hold today of one of the technology industry’s largest companies, they had to innovate as fast as they could.

It’s the same story we’ve been explaining for years. History and tons of studies have shown over and over and over again that competition drives innovation, because innovation is an ongoing process. Thus, when others can copy you, that actually accelerates innovation by giving the original incentives to stay ahead in the marketplace, and develop the next great thing. Research has also shown that it’s not as easy as you think to “just copy” because you only see the superficial aspects to copy, rather than having the deeper understanding of what works and what doesn’t that a market leader often gains.

In fact, when you understand that, you realize that patents can actually slow down innovation by letting a company rest on its laurels, and not have to continue to rapidly innovate. Other companies can’t build on what they did first, and so they don’t have the same incentives to continue to advance the market forward. And the Apple/Samsung fight in the market appears to support that.

If Apple ends up winning this case against Samsung — and either stops Samsung from releasing their phones and tablets to the market, or charges them a hefty license fee to do so — does anyone really believe that the market will suddenly become more innovative, or that devices will suddenly become more affordable? Similarly, if Samsung wins, do you really believe that Apple will suddenly slow its aggressive development of the iPhone and iPad? It’s certainly not what happened last time they lost one of these cases.

Now, if you’re with me so far, then I don’t think it’s a leap to suggest that having these companies duke it out in court over “who might have copied who” is counterproductive. All these lawsuits flying around suggest that everyone is already copying each other, anyway. A better solution? Let’s have these companies solely focused on duking it out in the marketplace — where consumers, not courtrooms, make the decisions about innovation. In such a world, the best defense against copying isn’t lawsuits, but rather, to innovate at such a rate that your competition can’t copy you fast enough. That, to me, sounds like an ideal situation not just for consumers — but for the real innovators, too.

Exactly.

Filed Under: competition, copycats, innovation, knockoffs, patents
Companies: apple, samsung

Netflix Provides 'Knock-offs' After Contract With Disney Ends

from the filling-the-void dept

We recently talked about the steady progression of cable cord-cutting occuring in this country. As that trend progresses, we're also seeing constant friction from the major movie studios about how they think they're offering enough in the way of online access to entertainment, so won't we all just shut up about it? And the truth is consumers will shut up about it, but not because they appreciate the studios' almost-effort at providing the product customers want how they want it (also known as being good at business), but because one way or another they will be satisfied. Often times these stories devolve into tales of piracy and woe, but that's far from the only option people have.

Forbes has a story of how those folks with both youngens and a Netflix account at home are dealing with Disney and Pixar electing to not renew the streaming portion of their contract.

Since the contract between Disney and Netflix came to an end, you won’t find any Pixar films on the Netflix streaming website. For a while you could watch Toy Story 3 and some other good Pixar titles but alas, those days have come to an end.

On the other hand, you can watch a host of Disney and Pixar knock-offs, as well as some really blatant rip-offs of DreamWorks movies.

Keep the terms “knock-offs,” “rip-offs, ” and “blatant” in your head, because we'll be coming back to them later. But, to demonstrate the point, here are some examples of what the movie industry likes to call “drafting films”, a nod to a race car technique in which one sits behind a car to alleviate headwind and save fuel:

I'll have to plead ignorance here, or perhaps plead lack-of-children, because I haven't heard of this one. But there are more obvious examples, like:

And:

Now, perhaps, like me, you're wondering what the legal status of these types of “drafting” movies is. A couple of things should be noted here. First, as you can see, in the summary descriptions of these movies, they tend to flatout tell you that they aren't affiliated with the movie by which they're “inspired.” Some, like the linked Forbes article, call this an admission rather than a warning, but this is another nugget to keep in the back of your head for further down the post. Secondly, the plot and characters in these “drafting” films have zero correlation to the movies they're “drafting”. There's no copying of plot or characters. As the Forbes piece states:

To be fair, the movie looks (both graphically and plot-wise) nothing at all like Pixar’s fantasy. Indeed, one suspects it was produced as soon as the first trailers came out.

On top of that, the most recent litigation cited by the article ended up finding against Disney and for the film studio accused of “drafting”.

Disney lost a lawsuit claiming that Good Times Entertainment had been packaging its videos – this time specifically its version of “Aladdin” – to resemble Disney’s own films, and that this caused confusion among consumers. Good Times Entertainment had released its own versions of “Aladdin” and “Beauty and the Beast” among other popular Disney films.

Judge Miriam Goldman Cederbaum ruled against Disney, arguing that a resemblance simply wasn’t enough unless all of Disney’s own packaging was distinctly uniform. In other words, unless each Disney film was packaged in a very specific way and that style was copied by Good Times Entertainment, Disney didn’t have enough proof to build its case.

So, in case you weren't playing along at home, we have “drafting” films filling the void for consumers in the Netflix streaming service, these films do not reproduce any semblance of core plot or character devices, and the court has previously ruled that without copying the packaging the “drafters” are in the clear. On top of that, the summary descriptions of these knock-off movies tell you flat out that if you're looking for the feature film from a studio like Disney you're in the wrong place.

Remember all those tidbits I asked you to keep in mind? How these movies were “blatant knock-offs”? How including a non-association disclaimer in the summary was “an admission” that the film's marketing had been inspired by the feature film? Because, with that in mind, here's the conclusion the Forbes piece reaches:

And while the law may be on its side, there’s something unsettling about all these drafted films. Is it ethical to market your product in a way purposefully designed to confuse consumers?

Forgive me, but that's just completely wrong. You can't call something a “blatant knock-off” in one breath and worry about customer confusion in the other. Particularly when the first line in most of these films' summaries inform people to avoid such confusion. Indeed, many of the films in question are built off of Public Domain material, which often times might eliminate any need for such a disclaimer. As Joe Cayre, former President of Good Times Entertainment, an alleged “drafting” film studio, says:

“If [Disney] spent so much money to create a big to-do, what better time to put [Good Times' Aladdin] out? And it being a public-domain vehicle, there’s nothing wrong with that.”

I'd suggest the major studios dive back into streaming and compete with these “drafting” films rather than attempt any further litigation. Because customers are going to get some flavor of what they want. And, if the movie trailers are any indication, and if given a level choice, they'll pick the major studio's product most of the time for reasons of quality and brand. If they have a choice.

Filed Under: confusion, customer service, drafting, knockoffs, movies
Companies: good times entertainment, netflix

Who's Running A Big Counterfeit Ring For Hermes Bags? Apparently Hermes Employees

from the is-that-still-counterfeiting? dept

There are significant reasons to question the actual impact of any counterfeiting that goes on, as multiple studies have shown that (a) it’s not nearly as big as various reports claim and (b) most people buying fake products know they’re buying fake products, and they often later buy the real ones. However, there’s no doubt that counterfeiting exists, and it’s understandable that there are efforts to crack down on pure counterfeiting: cases where someone is selling a knockoff good, claiming to be the original.

Still, it’s a bit of a surprise to find out that, as part of an effort by French law enforcement to break up a ring that was counterfeiting Hermes bags, they discovered the whole thing may have been run by Hermes employees — at least two of whom have been arrested (and fired). Of course, perhaps it’s not so strange. When it comes to copyright infringement, it’s pretty common to find out that early leaks are “inside jobs.” Still, it does raise questions about whether those “knockoffs” were really of lesser quality… It reminds me of the story of a firm that created its own “counterfeit” line to compete, but that was “authorized.” This just sounds like some rogue employees, trying to cash in.

Filed Under: counterfeit, france, knockoffs, luxury goods
Companies: hermes

Chinese Companies Again Using Patents To Punish Foreign Competitors: Apple Sued Over Siri In Shanghai

from the had-to-expect-this dept

For many years, US companies and government officials complained publicly and privately that China just didn’t “respect” patents. They would point to how various Chinese companies were famous for making knockoffs of various products as evidence of this, and they’d put strong diplomatic pressure on China to both “respect” foreign patents more and beef up its own patent system. Of course, for years, we’ve been warning about just how stupid this is. China recognizes that patents are really a protectionist tool, and is using them as such. It has certainly increased its patenting effort… but nearly every single major patent lawsuit in China has been about punishing foreign companies and blocking competition to domestic Chinese companies.

So it should come as little surprise to find out that a company in Shanghai, Zhi Zhen Internet Technology, is now suing Apple, claiming that voice-controlled virtual assistant Siri violates its patents. No one seems to know specifically what’s in the patent, but I do wonder if it matters. Like so many Chinese patent lawsuits this one just seems likely to end up with a foreign competitor being kept out of the market in favor of the domestic version.

And yet… American companies and politicians will still continue to insist that China needs to “strengthen” its patent system, even as Chinese companies and politicians must be laughing at just how self-defeating the Americans are. We’re literally urging them to set up a system that helps Chinese companies block American companies from their market.

Filed Under: china, knockoffs, shanghai
Companies: apple, zhi zhen internet technology

Would Fashion Copyright Have Made Kate Middleton's Knockoff Wedding Dress Illegal?

from the oops dept

Right after the big royal wedding a few months back, Susan Scafidi, the law professor who is one of the leading supporters of putting in place a totally unnecessary and economically damaging “fashion copyright,” used the wedding to support her arguments for fashion copyright. She suggested how unfortunate it would be that Kate Middleton’s wedding dress would now be knocked off and used by other brides. It seems the “Kate Middleton’s dress” example is popular among supporters of fashion copyright. In the NY Times, Steven Kolb, director of the Council for Fashion Designers of America (the main organization pushing for this bill), described Kate Middleton’s wedding dress as the perfect example of what fashion copyright could protect:

Mr. Kolb said that Kate Middleton?s wedding dress would probably be a good example

Interesting. Except… as Johanna Blakley points out, it turns out that Kate Middleton’s dress… was a knockoff itself!

See the dress on the right? That’s Kate Middleton in her dress. On the left? That’s Isabella Orsini, goddaughter of the Italian Prime Minister, marrying Belgian Prince Edouardo de Ligne… two years ago. The dresses were made by different designers. Orsini’s by Gerald Watelet, Middleton’s by Sarah Burton. As Blakley notes:

We?d all like to think that we can recognize newness and originality when we see it, but it?s actually quite hard to do. Even Steven Kolb, who is completely immersed in the fashion world, had trouble choosing a good example of a dress that is different from all designs that have preceded it.

And, of course, there’s really nothing new under the sun in many of these cases. For example, some people have pointed out that both dresses appear quite similar to the dress worn at another famous royal wedding… over fifty years ago. See the photo below of Grace Kelly marrying the Prince of Monaco:

Filed Under: fashion copyright, kate middleton, knockoffs, wedding dress

Did Cheap Chinese Knockoff Phones Lead To The Arab Spring?

from the butterfly-effect dept

Last year, we wrote about how companies in China were creating really innovative mobile phones and devices, in large part because they were ignoring intellectual property laws, and could mix and match the best of everything out there. I didn’t quite know what was behind the scenes as the “guts” of such phones, but Fast Company has a fascinating story, about how the massive revolution in cheap Chinese knockoff mobile phones is a result of a Taiwanese firm called MediaTek, coming out with a “mobile-phone-in-a-box” single chipset that anyone could use to make mobile phones. Buy the chipsets, build a case around it, throw on some software, and you’ve got a phone. What’s interesting is the suggestion that this device may have eventually contributed to the Arab Spring.

Basically, the quick version of the story is that the MediaTek chipsets made it easy for “shanzai” to become massive mobile phone makers and sellers overnight. They would take the chipset, knock off features from other phones, or add a few features themselves, and, voila, a phone. As one person quoted in the article notes, you used to need a giant company to build a mobile phone. “But now, a company with five guys can do it.” In fact, these firms would make small batches of all different kinds of phones to see how the market reacted. Talk about rapid prototyping and rapid innovation based on direct customer feedback…

However, with MediaTek not supporting more modern 3G mobile networks, it faced growth limits in China, and moved on to India and eventually to the Middle East, where cheap Chinese knockoff phones apparently became quite popular. The story does appear to be missing any direct evidence that the phones were used in the Arab protests, but does point to reports about such phones flooding into the region in the months before. There’s certainly a correlation there, though that doesn’t mean a causal relationship by any means. Either way, though, it is a fascinating story about how such a “gray market” came into being and changed markets over time.

Filed Under: arab spring, china, india, knockoffs, middle east, mobile phones

Truck Maker Discovers Chinese Knockoff Company; Helps It Come Up With Its Own Design

from the well-there's-a-different-strategy dept

We’ve seen different companies respond in different and creative ways to companies making knockoffs in the past. One of my favorites was the South African clothing firm that created an entire (secret) knockoff line of clothes to “compete” with unauthorized knockoffs. However Sebastian Brannstrom points us to a really surprising story out of Sweden. While the linked article mostly complains about knockoffs and talks about the need for greater “patent” protections, at the end there’s the fascinating story of truckmaker Scania (Google translation of the original Swedish) and how it responded to the discovery of a Chinese firm making knockoff trucks. Rather than freak out, it actually reached out to the firm, and helped them design different trucks.

The company admits that it knew that a lawsuit would be pointless, and figured it was worth a shot to try a different approach:

“We told them that we welcome competition but we think you should invest in a unique identity towards your customers”

Scania even gave them design tips.

“We gave them sketch-like ideas on the lines of the cab that you can do instead.

They later came back with a sketch of what they had thought about.

“We thought it was still too much like us. Then they did the job and came back again. It was a very friendly and constructive discussion. They respected what we said and made sure that they have not crossed the border again. Their next series will not be like Scania, “said Mr Harborn.

Now there’s a strategy you don’t see every day…

Filed Under: copying, knockoffs
Companies: scania

Williams Sonoma Nastygrams Blogger Who Helps People Build Their Own Furniture

from the furniture-pirates? dept

Brad Hubbard writes “I regularly read a blog called “Knock Off Wood” — a site where a woman teaches readers how to build various designer-looking pieces of furniture at home for a lot less. It’s the best kind of “maker” site – someone who is passionate about crafting, freely sharing their passion with a community of readers and everyone learns a little something. So when Williams Sonoma, Inc (owner of Pottery Barn and West Elm among others) sent them a legal nastygram, the owner of the site was entertained more than anything.”

The company is alleging both trademark and copyright violations — though it’s difficult to see either one holding up. Unfortunately the woman who runs the site decided it was easier to just cave in, but that’s unfortunate. Doing so encourages more bullying. The trademark claims are ridiculous. They say that by mentioning specific product names, she’s implying that “the website is somehow affiliated” with WSI. But, of course, any moron in a hurry knows that’s not true. The whole site clearly states it’s about making knock-off furniture. No one is going to go to this site and think it’s actually affiliated with WSI, or any of the other brand name furniture companies.

The copyright claim is equally questionable. At issue is that she’s using the copyrighted images of WSI’s furniture as part of the blog posts about how to make that type of furniture. But that seems like it should be a clear cut case of fair use. If you run through the four factors of fair use, it’s hard to see how this is infringement:

1. the purpose and character of your use
   The question here is if the use is somehow transformative or being used to build something new. But one of the questions usually asked in judging this factor is: “Was value added to the original by creating new information, new aesthetics, new insights and understandings?” It seems like an entire blog post around how to build that kind of furniture certainly qualifies. This one is in favor of fair use.
2. the nature of the copyrighted work
   Well, they’re photographs, but they were used in catalogs and such, not for sale. So that would seem to, again, lend to a fair use ruling. The original purpose of the photos was that they were to be seen widely.
3. the amount and substantiality of the portion taken
   Indeed, it sounds like the “entire” photo was used, so you might be able to weigh this factor against fair use, but not necessarily. As we’ve seen in multiple lawsuits, even if you’re using the entirety of the work, it can be considered fair use if the purpose is so completely different from the original — which, in this case, is definitely true.
4. the effect of the use upon the potential market.
   Now, some might argue that the use here might harm the market for WSI furniture since it’s teaching people how to build their own, but that shouldn’t apply here. The test is for the potential market of the copyrighted work. That is, this factor should not take into account the impact on the market for the furniture itself, but just on the market for the photographs. And it’s difficult to see any harm done here at all.

So going through all of that, it’s difficult to see how this isn’t a clear cut fair use case. Unfortunately, as mentioned, the woman didn’t want to fight the legal battle and agreed to just take down the images and mentions of WSI. However, she is amused that a housewife in Alaska has brought out the legal attack dogs of a giant retailer.

Filed Under: blogs, copyright, furniture, knockoffs, makers, trademark
Companies: williams sonoma