Ground Control to Major Case of Infringement?
Mash-up art is another area where there are more legal questions than there are answers. Below, an artist has taken the Misfits skull, an iconic punk rock image (and original artwork that I am assuming she didn’t own), and mashed it up with the distinctive makeup and hairstyle of one of David Bowie’s most beloved iterations, Aladdin Sane (again, it’s assumed she did not obtain authorization to use this material). In doing so, the submitting artist created a brand new piece of art. The question is, what are her rights in this new artwork, and does she face any liability for infringement?
Virtually all mash-up art falls under the “derivative work” umbrella, which refers to new works which incorporate substantial portions of previous works. Or, if you want to get all Copyright Act-y about it, a “derivative work” is ”a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a [']derivative work['].” 17 USC 101.
Clearly, the below is a “derivative work”: it is “based upon or more preexisting works” and “recasts” those works to create the mash-up work at issue. So, what rights do our mash-up artist have in her new creation?
Well, it is important to note that she gains no rights in the two underlying works by incorporating them into her new piece. That material remains the property of the artists that created it, and she cannot legally exploit her mash-up art without first obtaining their authorization. She does have rights in what she has added to the two works, which would be the combining of the pre-existing material, and the added graphic content. If a party were to exploit her expression as contained in the mash-up, she may be able to bring a lawsuit for the unauthorized exploitation of her creative material (viz., the combination of the pre-existing elements and the added graphic content).
A further wrinkle in this case is that the allegedly-infringing item appears to have taken the idea that underlies the submitting artist’s creation, but may or may not have taken the expression.
What would Ziggy say?
- Scott A. Burroughs, Esq. ( [email protected] )
Urban Outfitters is notorious for stealing from independent artists and designers, and recently I personally became another victim. In 2006 a friend and I made some shirts that we sold in a few local boutiques in Long Beach, CA, and gave to our friends. It was a take on Aladdin Sane, with a Misfits skull. Some of our friends even worked at Urban Outfitters and would wear the shirts to work. Lo and behold, 6 years later this mysteriously similar shirt appears on the Urban Outfitters website for $34:
Here is the link to the shirt on the UO website:
And a Youtube video uploaded 6 years ago featuring our friends rap group wearing the shirt (Yes, I know, they rule):
Once again Urban Outfitters blatantly rips off small time artists and mass produces stolen ideas for profit. They have done this to several jewelry designers and street artists, and seem to continue the trend, It’s a HUGE bummer, it’s insulting, pathetic, and UO needs to stop the practice of being RIP-OFF ARTISTS.