Hot Topic buys OpenWound FX Gartered Legs “as inspiration of new product” released 6 months later

ATTORNEYSCOTT COMMENTARY:

Below is a ghoulishly good example of the expression-idea dichotomy that we so often discuss here at YTWWN. As our readers know, ideas, as one judge so aptly put it, are “as free as the air.” The expression of a particular idea, though, is subject to protection under the Copyright Act. Below we have two sets of stockings that both depict ghastly flesh wounds. Has Hot Topic taken more than the idea here, or have they crossed the line and taken the expression?

This case is made more interesting by the clear evidence of access. In many cases, it is difficult to prove that the alleged infringer actually got their hands on the allegedly infringed material; but, here, it’s clear: the alleged infringer bought a pair directly from the source. This would trigger what is known as the “inverse-ratio” rule, which requires a lesser showing of substantial similarity to prove infringement.

So, feast your peepers on the two sets of stockings below and answer this question: theft of the idea or theft of expression? And, does the “inverse-ratio” rule affect your decision?

- Scott A. Burroughs, Esq. ([email protected])

***

Dear YTWNN:

I have been selling “Gartered Legs Prosthetics” since 2011 through my company OpenWound FX and I have been creating these prosthetics as a freelance artist since 2008. The Gartered Legs Prosthetics product is very popular and has seen a lot of online media coverage in the past year. The OpenWound FX website is www.openwoundfx.com and the shop is on Etsy at http://shop.openwoundfx.com. Hot Topic ordered a pair of Gartered Legs Prosthetics “as inspiration of new product” in March 2012 and released a very similar “Lesion Thigh Highs” product in September 2012.

On March 2nd, this year, someone named Cindy Mesa ordered a pair of Gartered Legs Prosthetics and I recognized the City of Industry, CA shipping address and checked her name. Based on a linkedin.com profile for a Cindy Mesa of Hot Topic, she is an Assistant buyer for the retail company Hot Topic.

On March 6th, 2012 I sent Cindy the following email:

Hi Cindy,

My name is Meaghan O’Keefe and I am the owner and creator of OpenWound FX. I see that you have ordered a pair of the Gartered Legs Prosthetics. Thank you for your interest! Is Hot Topic looking to stock Gartered Legs?

If so, I’d love to discuss the details with you.

Thank you,

Meaghan O’Keefe


On March 7th, 2012, Cindy responded with the following (there was no non-disclosure agreement or confidentiality note on the bottom of this email)

Hi Meaghan,

Thanks for reaching out to me. I actually just took over the department Monday was officially my first day. We are currently in development with a company who is making thigh high fishnets that have similar prosthetics attached to them. I ordered your as inspiration of new product I wanted to bring to the table only to find out we were already doing something similar. I am not sure if your prosthetics would be right for our customer since it requires a little more TLC to apply. Once I receive the product and take a close look we can definitely talk about if this is actually something we could carry. I will keep in touch.

Thanks,

Cindy Mesa

The Nicest Person In the World

Beauty & Halloween


I sent Cindy the package with a return receipt and a letter in which I offered to work with Hot Topic on a product using my design and voiced my concerns about them making a similar product based on mine without my involvement. I never received a response.

In early September, I was sent an email by a Hot Topic employee who was aware of my company. She sent a photo of the very similar Hot Topic “Lesion Thigh Highs” product that had just been received by her store. Ever since I have received a constant stream of emails from people alerting me of this “similar” product. I have seen the product in person and it is made of the same material and is “eerily similar.” Now that Halloween has passed, I would like to make people aware that Hot Topic’s “inspiration of new product” appears to be the OpenWound FX Gartered Legs Prosthetics that they bought 6 months before releasing their “Lesion Thigh Highs.”

 

Gartered Legs Prosthetics by OpenWound FX

OpenWound FX Gartered Legs - Photo by Robert Burrows, Model/MUA: Merissa Segedi

 

OpenWound FX Gartered Legs - Photo by Robert Burrows

 

 

Lesion Fishnet Thigh Highs by Hot Topic

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

 

 

 

10 comments

  • The hot topic version looks awful.

    I guess when Meghan explains about their customer base she doesn’t have a high opinion of their taste.

  • The concept is similar, but Hot Topic’s execution is crap. They might be eating some of her customer base, but I’d have a hard time saying the products are the same.

  • Girl, you have little to worry about. Hot Topic work looks like trash. As TacoDave points out, similar concept but what they produce is crap.

  • I agree. They certainly stole the idea, but the idea isn’t protected. It’s slimy but not a violation.

    And theirs do look horrible. They seem to have missed the point.

  • It’s such a shame though because OWFX doesn’t have as big a name for itself and Hot Topic will have made a lot of money off this product for Halloween from people who don’t know any better.
    I have the gartered legs from OW and they are flawless and look incredible. I just hope the extra publicity causes a small scandal and extra business for Meaghan

  • I actually laughed out loud when I saw the HT version. It is hilariously awful when compared to the original idea which has been so well executed.

    Unfortunately though, I don’t think that the two products are similar enough. They took inspiration from the original certainly, but it’s a different product.

  • oh my god, Hot topics version actually looks like bacon

  • They totally ripped you off. You have proof the assistant buyer bought a pair. It was earlier this year. She claimed it was inspiration. And now a knock-off is out.

    Done, slimey. It’s not inspiration, it’s redoing what you did.

  • the HT one looks like total crap. I think you’re fine and man just want to say your stuff is awesomeeee!!

  • Yours are cool, theirs are crap- but I don’t see much similarity really.

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