Paper Chases in the Virtual World may not be what they seem….

Paperchase, the country’s leading retailer of individual and design-based stationery, has spent the last 24 hours defending itself against allegations of plagiarism from artist “Hidden Eloise” after news of the dispute broke on the social networking site Twitter.
 
Eloise claims that her design “He Says He Can Hear The Forest Whisper” was “stolen” and “badly traced” onto bags, notebooks and albums by Paperchase, who have categorically denied any deliberate copying of her work, having purchased the artwork in question from what they describe as “well known central London Design Studio” amongst a number of others.
 
News of Eloise’s claims spread across the web like wildfire after a blog post which aired her frustration with no only the national chain but also the legal system, stating that “it was too expensive to even start talking with lawyers and the legal fees could break anyone with non-corporate products”. The post was subsequently picked up by noted English Science Fiction Author on Twitter and before long vitriolic commentary from other Twitter users forced Paperchase to issue a public statement as well as starting up its own account on Twitter for the first time to manage the fallout. The day ended with the products in dispute being withdrawn from sale whilst the issue was investigated for a second time.
 
It’s easy to see this incident as a cautionary tale and to rally behind the artist against a retail giant, but the reality is that cases like this are never as straightforward as they appear and in the age of real-time commentary over social networks can often see the finer details of a dispute distorted beyond recognition with alarming speed.
 
What Paperchase have been accused of is copyright infringement by reproducing Eloise’s work without permission. This kind of allegation is a fairly common issue for retailers to deal with who buy in designs or artwork from third parties – as copyright is an unregistered right, there is no centrally-available source of information which allows purchasers to look into the ownership of the material they buy. Normally, it would be fairly common for a retailer in this position to expect any seller of artwork who wasn’t responsible for creating it in the first place to provide an indemnity which confirms that, as far as the seller is aware, the material does not infringe any existing IP rights as well as compensating the buyer in the event that this proves to be the case.  Indemnities, however, are only useful if the third party can in fact cover any losses which a retailer may incur as a result of a subsequent claim.  
 
However, as ownership of copyright can only normally be proven through producing evidence of who actually created the material and when, there is always a risk in this kind of transaction that a disgruntled creator may come out of the woodwork and, in the age of the internet, create a huge public relations issue. Twitter is becoming very well-known as an easy method of both promoting uninhibited commentary on major issues on one hand (such as the Trafigura Super-Injunction and the Jan Moir debacle over a negative Article published in the mail on Boyzone star Stephen Gateley shortly after his untimely death), but also a method of generating a lot of negative commentary very quickly – especially when those making the comments are public figures forming part of the “Twitterati” such as Stephen Fry and Neil Gaiman.
 
What Paperchase have here is a double-sided issue – the allegation of copyright infringement and also an exercise in reputation management. The latter is being addressed very quickly by entering the discussion on Twitter through Paperchase’s own Twitter Account. Given that the Copyright Infringement has been very firmly denied, Paperchase could have dealt with the issue by taking legal action against Eloise in the form of a trade libel claim on the basis that their products have been “disparaged” in a manner which reflects negatively upon their manufacturer. Eloise’s defence to such a claim would in all probability be one of justification – that the accusations which she makes are, in fact substantially true.
 
The issue of whether one piece of artwork infringes upon the copyright of a previous work will depend upon whether or not a “substantial part” of the original has been used to create it. The Court treats this as a matter of fact on each individual case and the test is qualitative rather than quantitative in that it will depend upon the importance of the part which has been used to the original. Eloise would probably claim that the image of the girl in her original piece (which is the basis of the allegation) is the most important part of her work and with some justification in that her entire range of artwork uses the girl (in various forms) as a motif. It has to be said that the designs are very similar.
 
However, there is an important point which comments on the story are avoiding – although Eloise claims that it was Paperchase who copied the design, this seems completely incorrect. It was purchased from a Design Studio and in all likelihood, the actual copying took place either there or before they even laid eyes on the design – without further investigation, it;s impossible to say who was actually responsible for copying the original. It would have been much wiser for Eloise to have done some more work on narrowing down who may have been responsible than picking Paperchase as an easy and particularly media-friendly target.
 
Copying a design is, according to UK law, a primary infringement of copyright. Paperchase may ostensibly be liable for secondary infringement – dealing with copies of an original work in the course of business and selling them to the public. It is entirely possible for two designs to be produced simultaneously that look very similar and be equally protected by copyright, although this is evidentially unlikely.  However, although innocence is no defence to a copyright action – the fact that a business doesn’t know it’s infringing will not help them – unless the alleged infringer can show that they genuinely believed that copyright in the work in question had expired, what innocence does do is significantly curtail if not reduce to zero the amount of damages which could be recovered from Paperchase in any Court action.That Defence would depend upon, amongst other factors, the checks which Paperchase had made as to exactly who owned the copyright in the work in question.
 
Whatever the case, this has become an issue which Paperchase will have to deal with, although they do make the point that they thought that they had done in correspondence with Eloise in November 2009. It does seem a little opportunistic that, if this was the case, the allegations have been raised again. The explanation may be in Eloise’s own claim that she couldn’t afford lawyers to deal with the dispute. Ironically, a Lawyer would probably have told her to check her facts very carefully before making allegations of copyright infringement against a major retailer on a very public forum which could conceivably lead to a very large claim for damages in the event that she was wrong. To Paperchase’s credit, however, they have joined to conversation rather than try to strangle it.
 
The lessons to be learned from this are that retailers should always carry out thorough due diligence on any third-party artwork which they buy, that libel claims can apply just as much to businesses as they do to the rich and famous and finally that the impact of social media on reputation management cannot be ignored. Otherwise, the only paper being chased may be a Claim Form.
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