*EDITOR'S NOTE: This article was originally published in 2021 and artists report that the problem continues.
When nail artist Sigourney Nuñez (@nailartbysig) saw a direct message from an Instagram follower letting her know that a huge fast fashion brand had ripped her off, she was confused. Nuñez read the message, which said that the follower saw a picture on the company’s website of Nuñez’s “ghostie” nail art, and they were using it to sell decals — which look almost identical to the design Nuñez created — for $2.00 a package.
Nuñez created her ghostie look back in 2019 and it went viral, inspiring hordes of other nail artists and at-home nail enthusiasts to try this Halloween-inspired look. And after learning that her design had been copied, Nuñez was thankful for her follower’s support, but filled with shock and disappointment at the same time.
“I felt pretty vulnerable and wasn’t sure what actionable steps to take next,” Nuñez says.
Unfortunately, this situation isn’t new. With the prominence of social media platforms and online marketplaces like Etsy, individual content creators can market or sell their products to the world — a definite plus — but unfortunately, this visibility also comes with potential risks, like their work being stolen.
Pride and Frustration
Another nail artist, Alecia Mounixay (@thepaintedkoi), also knows too well the distress that stems from intellectual property theft.
In 2019, she created holographic flame nail stickers that went viral on social media — celebrities were even spotted wearing them. The large ecommerce company who knocked off her stickers didn’t steal the idea via an image from Mounixay’s social media page though; they purchased the stickers directly from her online, which she tried to stop several times to no avail.
Once the company got its hands on the stickers and mass produced them, Mounixay says suppliers that were originally purchasing the product from her then started buying the knock-offs instead. She did have a copyright on the design, but her lawyer advised her that she couldn’t stop the knock-offs from being made, but only try to stop the suppliers from reselling them.
“It may seem simple, but I was just so proud I made something that was worn by famous people,” Mounixay says. “Something that people got excited over. It took four hours for me to make just 12 stickers. I would stay up all night. Then to see other people paying 15 cents for the knock-offs, opening the bag, sticking them in another bag and making a sky-high profit was just devastating.”
When trying to fight this theft, Mounixay says she was treated poorly, receiving mean and harassing comments on social media. “I finally gave up and shut down my efforts,” she says. “I was hurt because I didn’t do anything wrong, I just tried to stand up for what was right. They don’t care though — they’re untouchable.”
Protecting What’s Yours
For independent artists, this may seem like a losing battle when big corporations can so blatantly steal their work and seemingly get away with it. But what can these creators do to turn this into a David versus Goliath-style battle?
To start, use watermarks on the social media photos you post of your work. For nail artists, this could look like editing their images to include their brand name or logo, positioned following the curve of the nail bed. It’s small, so it doesn’t detract too much from the photo itself, but it cannot be edited out easily, either. And while this won’t prevent very determined thieves from doing what they want, seeing this watermark could deter some wrong-doers.
Next, many lawyers would suggest obtaining a copyright, which protects your content.
“Copyrights are original works that are protectable as soon as they are put in tangible form,” explains Michelle Murphy, Esq., an intellectual property attorney who has worked with clients in the beauty industry. Pictures of nails are protectable as well, but only if the nail design is “originally sufficient,” meaning it showcases some kind of unique graphic or drawing.
Murphy says if an artist frequently takes pictures of their designs on a client's nails, the person can bulk register them, which costs just $55 for up to 750 photos.
Another intellectual property attorney, Radiance W. Harris, Esq., Founder and Managing Attorney of Radiance IP Law, suggests that a cost-effective approach may be to copyright a primary set of signature or popular nail designs that an artist routinely offers.
If a copyright is registered on a design and an artist discovers that their work has been stolen, a good next step is to send a cease-and-desist letter to the violating party, demanding that they remove the content and fix the situation.
If that doesn’t work, the next line of action is filing a lawsuit, which can be very costly due to legal fees. If an artist doesn’t have the money to pursue litigation in court, then even with a copyright, they’re out of luck.
Close to the Chest
Mounixay says that after the theft of her designs, she changed her approach on social media, only revealing half of each sticker she painstakingly created. But sure enough, the big brand just made a copy using only what she had revealed publicly. After this, she finally decided that she’d had enough — she was done designing nail stickers.
“I couldn’t spend hours or days drawing something and then see them spend one second taking it from me,” she says.
And while she hasn’t written off getting back into the sticker business again, she now only does nails. “Nails are my happy place. I don’t need to take days to design a set. I do it on the spot.”
As a new full-time content creator, Nuñez says that moving forward, she’ll be doing more research on what she can do to protect her work so that she feels empowered to share her art.
And to other artists, she offers some words of encouragement: “If this happens to you, don't be afraid to speak up and hold brands accountable for their unethical practices. As scary and intimidating it can be, you come to realize there’s a community of artists and people who will be ready to support you and create awareness.”
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Originally posted on Modern Salon