“I Was Sued Over Bootlegs”
Bootlegs in the vintage community aren’t anything new. It’s a topic that has been beaten to death, especially within in the last few months. The community has been buzzing with recent controversies and we have even touched on the topic before. And I’m writing to not give you my personal opinion on the subject, although I may just a bit, but to discuss what IP and Trademarks are and the dangers associated with infringement.
First off, I want to be sure we all have a clear definition of ‘bootleg.’ Bootleg is a term used to describe something that has someone else’s IP but is an interpretation of what the original artist or producer might have created. Essentially it pays homage the original IP but differs from something that was ever legally produced. When a graphic or garment is an exact copy of something that a brand or trademark holder produced it just a fake or remake. We are seeing some great bootlegs pop up and we are also seeing lots and lots of fakes. And most concerningly we are also seeing fakes being mislabeled as bootleg. These are important distinctions to make because typically the community is against the fake market flooding in and devaluing our real vintage items. The problem is that sometimes just by using the term ‘bootleg,’ these fakes are then celebrated. But enough terminology.
I don’t really need to reference any bootleg designers directly in this piece. We mostly all know who they are. I am writing this by no means to get anyone in trouble but more to educate some on what they may expect to happen if the IP or Copyright lawyers catch wind.
Why am I qualified to write this? Funny you should ask. I have been on the receding end of cease and desists, infringement letters and lawsuits more times than I would like to remember.
So, let’s just start at the beginning. All movies, bands, characters, logos, words etc. etc. are owned and protected as IP by trademark law. A good rule of thumb is that if you want to bootleg, 99% chance it’s marked. There are lots of rumors that to avoid infringement you can change 7 things about a garment or alter an image at least 30%. I am not sure exactly sure about that, but I do know that if a impartial test subject can identity the original IP from the work in question, it’s probably not altered enough. Names and phrases are also IP.
Most large brands have IP lawyers on retainer. Their sole job is to search out people infringing and dealing with them accordingly. I believe that they even have bots that are sent out to crawl the web for key words, images and phrases. Once they find someone infringing on their IP then the work begins. They will probably purchase a garment, take screen shots, or whatever else they need to do to back up their claims if the case ends up in court.
This is when they will send out the letter. We all imagine it like in the movies. A person knocks on your door and hands you a manila envelope reciting, “You’ve been served.” And yes, this has happened to me, but I have also received them in the mail and via email.
The letter usually is some form of cease and desist. This on its own is super chill right? Now you can just stop selling those garments and it’s all good. Wrong. Only one out of the many letters of infringement that I received ended in a clean way. Typically, these letters will demand a record of all sales of said IP. Why do they want the sales records you may ask? They are legally entitled to all the money made using their IP. They can also demand that any left-over product you have gets shipped to them so they can ensure that you don’t sell it.
Once you get here you have a few options. You can provide them with everything they ask for or you can ignore them. I’m not going to lie here, sometimes ignoring these letters works. If your case is so minor, they may not pursue it- straight up. In most cases though, the letters will keep coming. Once you provide them with sales records, they will then ask you for said money to be surrendered to them. This was a bit shocking to me when it first happened. Why do they care about a few grand from some small timer like me? To pay the lawyers that are coming after you, that’s why.
So now your find yourself in the middle of legal dispute with lawyers that have the money to bury you in court. Most likely you will want to retain the council of some legal advice. This is typically the first expense. In my experience any lawyer worth their salt will cost you a retainer of at minimum $3000, to work on this with you. You pay for the calls, the letters, advice. Every second you work with a lawyer is billable time.
When all the dust settles you will probably have spent 3-5k on a lawyer, surrendered all the money you made back the IP owner, signed an agreement stating you won’t do it again, and wasted months of your life stressing about the outcome. If you do not comply with their demands, you will most likely end up in court and then you will have to pay something closer to a $10,000 retainer to have a lawyer represent you.
I can truly say that I appreciate many bootleg work. Creativity in any form, done well, I appreciate. I don’t think that vintage dealers need to be purists. There are no rules here. Do whatever you want. That is what is so appealing about being a reseller, no boss to tell us what we can and can’t do. I also don’t think that the bootleg market has much baring on the values of actual vintage like many people of the community think. I believe people love to have an excuse and someone to blame when they invested too much in product, lol. Fakes on the other hand have had a huge impact on the market.
Again, I have been there and done that. I don’t judge the people doing what they are doing. The easy money can be exciting and consuming. But at the end of the day, using another’s IP for your own gain is stealing. It’s as simple as that.
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