We’ve all likely heard this sage advice before: get paid for your work! If you’re reading this article you are likely a creative (someone who creates something – a photographer, graphic designer, musician, writer, etc) and have had this type of discussion with a potential client. Every day there seems to be more pressure on our industry to create more for less, to create something for “exposure” or get tempted by the proverbial carrot of “I’ll tell all my friends.” I’ve come to realize it is the price of admission when it comes to being a creative professional and mostly let those types of requests just roll off my back as I’m fortunate enough to have lots of amazing clients who pay me for my work. But the struggle is real.
Early this week, I started hearing rumblings about a company I had never heard of before, Squijoo. If you are like me and have never heard of them, here’s the 10 second rundown:
Squijoo.com is a Photoshop template company who specifically caters to photographers and advertises their “unlimited Photoshop templates” and “Beautiful, Awesome Designs” for a mere $10 a month. When I first looked through their website, I’ll admit I was absolutely intrigued about having access to unlimited, quality templates for a year for roughly the cost of one custom piece from a designer. By doing a little research, I soon found out that they are just one of many online companies who offer this type of business model for Photoshop templates.
My interest, however, changed to skeptical curiosity as I started to do more research into Squijoo. Instead of the positive comments I’d expect to see on social media and online review pages, I instead found talk of copyright infringement, rumors of DMCA takedown notices, and a website that was temporarily down and removed/suspended Facebook and Pinterest pages. This, of course, set off alarm bells, so I asked a simple question on Facebook: “Who can tell me what is going on with this and whats the real story here?” After 24 hours of silence, I received information from multiple sources, who all asked to remain anonymous, with some very concerning screenshots and commentary. I want to post these screenshots below so you can have the same experience I had before I go into details.
Pay attention to the products being offered by two different companies below.
So, how does the above similarities in the designs strike you? Two different companies offering virtually identical designs for a vastly differing price. Would it change your mind to know that, according to my confidential source, Squijoo regularly held competitions on their Facebook page for photographers to “submit” designs they liked so Squijoo could re-create them on their pay-per-month platform? In other words, the similarities in designs are not a mere coincidence, they are absolutely targeted. The next question I asked myself is, “would this be considered a fair use or a derivative work under copyright law?” Well, I didn’t know, so I asked my IP attorney – Chris Sorey (@trademarkdude) of Passé Intellectual Property LLC. Chris has represented boy band One Direction as well as David & Victoria Beckham among other large companies so I thought he’d be a perfect person to ask this question. Here is what he had to say:
Under US copyright law, the owner of copyright protected material has the right to make copies of the original work and produce derivative works thereof. The only way to escape liability in reproducing the copyright protected work of another is under some provision of Fair Use. The only Fair Use provision that could potentially apply in this situation would be that so little of the original work is used that the newly created work is thereby transformative. The US Supreme court noted that to be transformative the new work must, “alter the original with new expression, meaning, or message.”
In my opinion, looking at and comparing the works of Minted.com, designaglow.com & oh snap boutique to Squijoo.com, it appears that Squijoo.com’s designs are derivative of the designs of Minted.com, designaglow.com & oh snap boutique. Moreover, the designs of Squijoo.com would not be defensible under the Fair Use theory of be transformativeness since they convey the same expression, meaning and message of the designs authored by Minted.com, designaglow.com & oh snap boutique.
Notwithstanding the forgoing, I would think that Minted.com, designaglow.com & oh snap boutique would be somewhat hard pressed to enforce some of these designs since they are comprised of what under copyright law could be considered stock elements, i.e. sprigs of holly and wreath shapes symbolizing Christmas. But Minted.com, designaglow.com & oh snap boutique would likely receive copyright protection and thus be able to enforce their compositions of these stock elements. Squijoo.com’s design appear to be derivative of the original compositions of Minted.com, designaglow.com & oh snap boutique. That and the added element of Squijoo.com making public calls for submission of other’s works for them to literally copy or “improve” could give rise to an implication that there is an infringement that is willful, wanton, and purposeful.
In other words, this is a legal gray area and short of this going to court, may be best answered via the ethical nature of their business we should be asking ourselves as creative people. What happens when the creatives who designed the original work no longer are employed? I mean obviously, who doesn’t love a “deal” but if we extend this scenario out to its logical conclusion, the creatives who made the original work will eventually stop designing as no one is buying their designs. In turn, the companies who are using the original work to create a derivative will run out of quality content to recreate, so the proverbial boat will flip over at that point and we will all feel the effects. Another, also unsavory, outcome is that the quality of the designs from all parties involved will deteriorate as the really skilled artists will stop creating, leaving only those willing to take a pittance to create work that is probably not nearly as good, or at least not consistently as good.
Personally, I have a huge issue with this type of business practice. How would I feel if someone carefully re-created a signature photo I had crafted and then competed against me using that photo? I’d of course be upset but there’s really two questions to ask yourself – is it patently illegal or simply immoral? It’s up to the courts and lawyers, of course, to decide the first question, but I think it’s each creative’s responsibility to ask themselves the second question. Immoral acts happen everyday in our industry but would you, as a person in the creative industry, support a company whose actions you find immoral by continuing to finance them? It’s a tough question and there’s no right answer but the question should be asked nonetheless for the long term health of our industry.
While writing this piece, I found out a photographer in my local area was a member of Squijoo and had expressed concern about their website closure. I opted to not giver her my opinion but instead tell her what I knew and watch her reaction. When I informed her many of the designs were in question as far as copyright is concerned, her first question to me was “Will I get in trouble for possessing or using these templates?” This was pretty much what I expected but it gave me a moment of pause. If we all react that way and never take the next step which, in my opinion, is to take an active role in rewarding the companies who truly create and not patronize those who duplicate, then are we just as much to blame?
This article has lots of questions and very few answers, as I am not the one who should answer for this for you. It’s a very important question that is often swept under the rug in the pursuit of being a “paid” creator. Personally, I realize the position I am in, which is one of a creative person, means it would be hypocritical of me to not support other truly creative companies and instead search out the lowest bidder who is essentially duplicating the work of the original creators.
I welcome you to continue to conversation in the comments section below. This is far too important of a question with far reaching implications to let go unanswered.
UPDATE
As of 5:45pm on February 19th, Squijoo has closed their doors temporarily for restructuring.