As one of the doll makers, AND a professional illustrator, let me explain something.
When a crime happens in this industry, there are not roving packs of police who happen to stomp on anyone who breaks the law. The artists have to police it themselves. And then because of the nature of the business (selling the rights to images/dolls/etc), it is up to the artist to decide if they choose to enforce the law. This is where it gets tricky.
First the artist has to find out about the infringement. Once they have, then they have to take the appropriate legal steps. That means money. Now most dollmakers are literally just getting by, so expect us to take several months to raise the money for an attorney to step in (that’s a retainer fee + their hourly rate. Attorneys are at MINIMUM $100 an hour, with most sitting around $300 an hour for their time. Retainer fees usually range in the $1000 market.)
once we have the attorney, we then need to send cease and desist notices (which cost money cause we have to pay for that), and then open negotiations in order to have the stolen product removed. This process can take MONTHS as many recasters hide behind fake names, tend to vanish, and so on. So we have to spend the time, and money, to track these people down. To give you an idea, I am in the process of tracking down a lady who has been submitting my work in her portfolio to publishing companies. She moves around a lot, and so it’s nearly impossible to track her down. I’ve been doing this for about five years, and I will keep trying to get her to stop every time she pops up again.
Meanwhile as we work on enforcing our rights, we also have to stop and educate well meaning people who don’t quite understand what is going wrong. It’s an uphill battle because we still have to maintain our reputation in the industry, we can’t just go screaming ‘you bastards stole from me!’ because it opens the door for the thieves to then claim they are victims of harassment, deflecting the conversation from the very real theft, onto how ‘mean’ the dollmaker is. False information is spread out, and even when we go and have a lawyer *explain* the truth of the legal issues, it is dismissed as ‘well that is only one lawyer’. So you can see that this is a very tiring issue for us. But it’s necessary because it’s important that our customers, that is you, realize that we are not out to be the bad guy. This is necessary for our survival (I’ve written several articles about the real effect of recasting/various thefts on small businesses, you are more then welcome to read them on jessicamdouglas.deviantart.com ) Many people don’t realize the long and short term effects of theft on businesses, and many artists are too tired to explain all the ways that their business now struggles because of said theft. So there is this myth that it’s a ‘victimless crime’ as the artist ‘didn’t really lose anything’ going around. Unfortunately unless you have studied business/are a business owner yourself, it’s difficult to understand these concepts so it’s easy to believe that it’s not a harmful action. So we work to try and explain why we have to enforce our rights.
But it’s long and tiring. As you can see in this very lengthy description, I haven’t even gotten to actually going to court yet. This is about $5000 worth of legal expenses, if you’re lucky, and we haven’t even gotten to court. It’s not a simple thing to ask the artists to make the thieves stop. Most have to choose between going bankrupt from paying for attorneys, or sucking it up and hope they don’t go bankrupt from the effects of the thefts. Some just quit all together.
Are you starting to get the idea why it is not a simple case of ‘why don’t the artists make them stop?” The answer is, because we are trying. But it is a lot cheaper to steal an item then it is to protect it. So the thefts keep happening and we keep having to spend money to try and get it to stop. I won’t tell you about the beautiful dolls we have had to put on hold in production because we can no longer afford them, because that money is now going to legal fees. Just know we used to produce one new doll a month. And now we struggle to afford the ones we do put out, every six months or so.
And finally. I did contact a lawyer, pretending to be a recaster in order to try and get the recasters a ‘fair letter’ defending their practices. The lawyer in question stated flat out that he would not advise me to break the law nor help me in it, and asked me to leave his office. He didn’t give me a written statement, he was that angry. Good luck if you wish to get a statement from a lawyer justifying breaking the law. Not only is it VERY clear but it’s been successfully litigated time and time again by the big companies. That’s why the knock off dolls vanish so fast from the stores. Matel, hasbro and so on all have the money to defend themselves. But the recasters are targetting those artists who don’t have that kind of money and time to defend themselves.
I’m sorry if this isn’t what you want to hear. I’m not an evil person out to ruin your good time, I’m just wishing that you folks would stop hurting my business so that my partner and I can keep producing the dolls we do, and keep giving beautiful things to the world. We are artists, we are creators. We want to make things that make you happy. Please let us, and please help us so we don’t go bankrupt trying to defend ourselves. Please understand that it’s not me hating you. I don’t hate recasters. I just wish that you would all take a moment to realize that this is a serious issue involving people’s livelihoods and we are only doing this because you are hurting us. We have to have you stop. I’m sorry.
Editing to add this: also there’s this weird disconnect about how law works. Police officers who arrest people for a clear crime like drugs/violence, only do it to remove the offender and protect the public. They don’t go to ‘real jail’ or have any sort of penalties charged *until they go to court*. Then they have the right to defend themselves and their actions. In the case of copyright law, the infringer has the right to try and prove that they didn’t actually steal. That means *proving you did not take a doll and recast it illegally*. That means you have a chance to try and say what you did was not illegal.
A similar case was held up by hallmark against two different designer stores. One was buying the greeting cards, and decoupaging them onto coasters. The other bought A greeting card, then reprinted it and decoupaged it onto coasters. The lawsuit against the company that was buying all the cards and using the cards they bought was ruled in favor of the designer company, because hallmark was fairly compensated for the card and fair use states that they can take said card and modify it. The lawsuit against the company that reprinted the cards was ruled in favor of Hallmark because the company was illegally reproducing the cards and so Hallmark was not fairly compensated for their product. Make sense?
