More Hooting about Infringement

ATTORNEYSCOTT COMMENTARY:

In a famous case named Satava, the Court reviewed a claim that one sculptor’s  jellyfish statue was copied from that of another. Both jellyfish were extremely life-like and technically accurate depictions of the sea creature. The Court denied the claim. It’s reasoning was that if you are creating something that is a technical recreation of an animal in nature, there are only a few ways to do so, and multiple recreations will almost by definition be substantially similar because they are accurately rendered from a common source. Also, the Court did not want to give the artist claiming infringement a monopoly on all life-like jellyfish statues, which may have been the case had it ruled that nobody else could create life-like renderings of jellyfish.

One fact that influenced the court was the medium involved. Clearly, there are fewer ways to depict a life-like jellyfish in statue form than there would be had it been a painting or work of graphic art. And the more fanciful and stylish the artwork, the less likely the Court will be to limit protection.  In the below submission, one artist feels that a second has misappropriated her owl. Is the artsy owl so fanciful and unique that copying is afoot, or are the similarities a result of both being accurate renditions of owls in nature?

***

Dear YTWWN:

Recently a friend of mine told me that she saw one of my owl designs printed on a women’s t-shirt in one of UK’s clothing store NEW LOOK . though i never sold that design to them or gave them permission to use it for there clothing.

I also noticed that they added a crown on top of the design and also added some messy blobs of color into the image. but you can clearly tell its one of my designs.

here is a link of the Iain Macarthur owl design that i did in 2009 :

http://www.behance.net/gallery/Animal-illustrations-and-shirt-designs/1078011

and here’s the link of the design that new look have taken and changed:

http://www.newlook.com/shop/womens/tops/influence-white-owl-print-sleeveless-vest_268569710

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If you have any questions or comments about the issue above. please feel free to email to : [email protected]

7 comments

  • You aren’t serious with that commentary, are you, AttorneyScott? That is clearly the exact same line work, mirrored and with a crown and some color added. The problem isn’t that “they both look like owls,” it’s that it’s the exact same work.

    Would your jellyfish example have been ruled the same way if the second artist had coated the first statue in plaster, made a mold of it, and then filled it in to recreate the exact same jellyfish?

  • Yes, this is very clearly the same image. All of the feather and face detailing is the same. They just removed the foliage and threw a crown/some color on top of it.

  • Gotta agree with “What The”. Realistic owls would not have the details at the top of the wing & chest which were all copied exactly. The story does not seem to relate to the post.

  • While this owl does look realistic, when you take a closer look, there are plenty of artistic elements that give this owl a unique style. And it’s been copied exactly. I don’t think throwing a crown and some color on it change it enough. I would consider this copyright infringement.

  • It’s like What The took the thoughts right out of my head.
    However, I wouldn’t have a dig at Attorney Scott for the commentary. As well as being a way to highlight copyright infringement, Scott is making this blog a valuable resource in educating people on what constitutes infringement and to get them thinking about ways that infringement can occur and what exceptions there are to the rules. It can be beneficial to show examples from either side of the fence: A jellyfish sculpture that was an exception, and an owl that surely isn’t.

  • Wow…

    The details in the design are copied exactly and there is absolutely no doubt in my mind that this is a blatant theft and attempted cover-up by adding a crown and other subtle additions. What is frustrating about this is that at first glance, because of these additions, it might not be noticeable by someone who wasn’t familiar with the design…like a potential customer. This is ornate line-work that has been copied. Don’t let the fact that it is on an animal fool you.

  • This is completely different than the case you quoted. This is clearly a derivative work of the exact same image of the owl, flipped horizontally and with a crown atop his head. A better analogy to the first case you mentioned (jellyfish) would be two different photos of the same deer. You can’t claim rights to the idea of depicting an animal in general, even the exact same animal. The owl case would be more like someone taking the exact same photo of a deer taken by another artist and drawing a crown on top of the deer’s head– it’s a derivative work, plain and simple. It can be proven by superimposing the two. This isn’t a grey area, and doesn’t bear much similarity to the quoted jellyfish case at all except for the fact that owls and jellyfish are both animals. Surely you must be trying to play devil’s advocate with that commentary? Or perhaps you didn’t look at two designs closely enough? I always agree with your stance on the various cases that you are sent, you are usually very objective and do not always side with the “little guy” regardless of the law, but I can’t get behind this.

Leave a Reply

Your email address will not be published. Required fields are marked *

*