‘Tis the Season to Appropriate Art?
ATTORNEYSCOTT COMMENTARY:
The cut (or silhouette) of a shirt, dress, tunic, tank top, or any other clothing item is not protected by Copyright Law in the U.S. of A. (though there is pending legislation that may change that). The graphic artwork on that clothing item, however, is subject to protection just like any painting, drawing, rendering or other form of 2-D artwork. The degree of protection that will be afforded that graphic artwork varies from thick protection to thin protection depending on the design at issue. In the below case, though, it looks like the alleged infringer took the whole kit and caboodle, which would make this a very sticky legal situation indeed.
- Scott A. Burroughs, Esq. ( [email protected] )
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Dear YTWWN:
Not much to say here. As a fashion graphic designer myself, I was a little shocked when I walked into General Pants and saw this on the weekend. Something Else have directly ripped off independent artist Katie Scott, with absolutely no changes to the design. See below.
From the General Pants website, Something Else "Curiosity" tank:
From Katie Scott's website, titled "Magic Science":
The Mystery of the Purloined Embroidery Art
ATTORNEYSCOTT COMMENTARY:
When you post something on the internet, you never know where it might turn up. In the below case, an artist's original embroidery design was apparently borrowed for the cover art on a book entitled, appropriately, "The Long Stitch Good Night: An Embroidery Mystery." The embroidery piece was apparently reproduced in graphic art form, but this, still would violate the original artist's exclusive rights to create derivative works from her original embroidery piece. See 17 U.S.C. 106 (2).
Maybe the "embroidery mystery" is how this usage made its way through Penguin's legal clearance process?
- Scott A. Burroughs, Esq. ( [email protected] )
***
Dear YTWWN:
I am an artist, designer and owner of a small business called SeptemberHouse. My business focuses mostly on needlecraft, specifically embroidery. I design and sell embroidery patterns and recently found out that one of them showed up on the cover of a mass market paperback without my permission.
The pattern was one that I had posted on my blog as a free promotional pattern. Pattern designers often do this to generate views as well as interest and buzz about their work. I always clearly indicate that they are for personal use and copyrighted. This particular pattern is called "She Scatters Shamrocks" and was released in February 2010 just before St. Patrick's Day.
A few months ago, a reader who is familiar with this pattern contacted me to tell me that she saw it on a book cover and wanted to let me know because she wasn't sure it was supposed to be there. I'm so glad she did this because it was NOT supposed to be there and had she not told me, I would have never known. The book is called "The Long Stitch Good Night" and is written by Amanda Lee a.k.a Gayle Trent published by Penguin/Signet books. It is part of a series of mystery books with a needlework theme. This particular one also had an Irish theme.
- Book cover containing artwork stolen from embroidery pattern designer
My embroidery pattern appears in the lower right side of the image. It's small but it is definitely there. I was never contacted by the publisher or illustrator, asked permission to use the image or given any credit or compensation.
I have distributed a number of DMCA notifications and the image has been removed from some sites. I am still waiting to receive responses on others. At this point I am still deciding on what other action to take.
I also wrote recently wrote a post about this situation on my blog, so september.
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
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?
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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]
Lindex.com Alleged to Have Ripped off Sleepy King’s “Liam the Fox”
ATTORNEYSCOTT COMMENTARY:
Sleepy King's absolutely adorable Liam the Fox character may not be the most complex artistic creation, but it is certainly creative enough to be covered by copyright protection (at least here in the US, I do not profess to be an expert in Swedish intellectual property law). A large Scandinavian company apparently has brought to market a series of products that bears a very familiar and adorable fox character. Is something rotten at this smorgasbord?
***
Dear YTWWN:
Some of you know by now that the large Swedish corporation – Lindex has stolen one of my most beloved designs that I created in 2009. I found out about this by one of my loyal fans in Norway. She recognized the design as a Sleepy King original and instantly felt disgusted and angry. If she wouldn't have emailed me about this I may have never found out.
I am heart broken to say the least. I work so hard, and take great pride in my designs. I have many fans who know and love my work for it’s originality. It is painful to have my work ripped away from me behind my back by a giant corporation. Who knows how many of these they have sold already? Hundreds? Thousands? While I sit here in my tiny two bedroom rental, working as hard as I possibly can to make ends meet, Lindex is cashing in on my designs.
Liam the Sleepy Woodland fox was created by me in my home in 2009. Since then he has been one of my top sellers. It’s no wonder Lindex stole my designs without asking .. they saw great potential in this little fox and knew they could make lots of money off of him.
The real Sleepy King Liam: here
The stolen Lindex design: here & here (click on the pink onesie option to see the fox design) They also took GREAT inspiration from my older bunny design: here
I am tired of these big corporations stealing from independent designers and small businesses on Etsy, Big Cartel and the like. You would think that with all of the billions they have, they could afford to hire real designers with original ideas. Corporate design theft must end for the sake of the handmade community. We should feel safe when we copyright our designs and put them out there on the internet for people to see and purchase.
Lindex has emailed me saying they are "looking into the matter" and they will get back to me soon. I am calling a lawyer tomorrow.
********UPDATE******* 10/10/2012
My story went viral on 9/9/2012. I stayed up until 4am answering emails and doing interviews with news companies in Norway and Sweden. You can read more about my story by clicking on the following links:
http://nyheter24.se/nyheter/inrikes/728061-lindex-stal-min-design
http://minmote.no/index.php/2012/10/lindex-trekker-babyplagg-etter-plagiat-anklager/
http://storify.com/linuskendall/major-swedish-retailer-blatantly-steals-independen
Hundreds of people complained on the Lindex facebook page.
Today Lindex admitted to taking great inspiration from my designs and we have agreed on a settlement. Lindex will continue to sell the merchandise with my designs until they're completely gone. They will not continue production on these products.
…Lost and Adrift in a Sea of Infringement?
ATTORNEYSCOTT COMMENTARY:
Today's entry arrives by sea, from my hometown of Long Beach, California. In this saga of maritime misappropriation, the putative pirate is a well-known action sports brand who is alleged to have fallen for copyright infringement hook, line, and sinker.
From a legal standpoint, it is important to remember that copyright law does not protect fonts, no matter how stylized the letters. Trademark law, however, will provide protection for the stylized depiction of a word if that stylized depiction is associated with a certain brand by consumers.
In this case, however, it appears that not only has the font been misappropriated, but also the composition and design elements of the work at issue, which may be subject to copyright protection. Is there enough taken to be a violation of the law or a violation of the artists' moral code?
***
Dear YTWWN;
In April 2011, Port opened it's doors in Long Beach, CA—an unorthodox group of minds, set out to deliver our lifestyle through our product, creativity and store. A clothing boutique, selling small and larger brands as well as Port branded product with its wildly popular and successful logo.
The popularity of the logo led to Port branded product being the best selling product for the store.
With the brand, store and recognition on the rise, Port was delivered a despicable blow, when surfboard and clothing manufacture …Lost released an all but familiar tee shirt graphic, first spotted on the online retailer Swell, in May 2012. Now a tank top version of the stolen art is on Pacific Sunwear's site.
When put side-by-side, the gross neglect of trademark infringement is clear. The designer that presented this as an option should be ashamed of themselves. It is one thing to have reference, but to so blatantly rip off another's work is a different story.
The theft of intellectual property has left us baffled. Even more disgraceful is the fact that an established surf brand would steal from its own. The store is rooted in skate and surf culture. Everyone involved with Port is a steward of the action sports industry—the owners, art director, artists, employees and friends of the store. From shoe designers to marketing directors, we are all part of the industry we love.
It is so unfortunate that one of our own would stoop to a level so low, to blatantly steal and take potential profits from a small, independent shop.
It might be true that imitation is the most sincere form of flattery, but this flattery is just a cloak for theft and brand confusion.
Have a Heart, Hot Topic!
ATTORNEYSCOTT COMMENTARY:
Copyright infringement cases relating to jewelry are on the rise, with retailers attempting to make an extra buck by having cheaper knock-offs made of trendy pieces they see in boutiques, magazines, or around town, and then selling those copies to the public. The sine qua non in such a case is substantial similarity, as any attorney with brains can tell you. Mmmmm, brains.
***
update: Hot Topic has pulled their necklaces from online and apparently from sales floors while they "investigate"
Dear YTWWN:
I'd love some outside opinions on this one. I've been making these I Heart Brains Best Friends Necklace Sets since 2010. Soon after posting them they were featured in a variety of different places online and I ended up with orders my two hands couldn't keep up with. This is the first green set I sold:
and hot topics recent version of the same thing:
The part that gets me the most is there are many ways to make brains and the way I've specifically chosen to do them isn't the same as a real brains texture. It's a technique I use because of my medium of polymer clay, which is not the medium they've used. It feels like a copy to me and even gave my guts a churnin' once I stumbled on them. After contacting hot topic and getting no response, I was wondering what others might think
Grossed Out by Alleged Mimicry
ATTORNEYSCOTT COMMENTARY:
As web and mobile applications (or 'apps' to those that dig buzzwords and brevity) become more and more popular (and lucrative), we are seeing more and more infringement in the apps sphere. An app is somewhat distinct from other forms of art because the code for the app is covered by copyright protection, and the app itself may be subject to patent protection. Those that infringe the rights of the creator of an app therefore get a two for one - copyright and patent infringement! Take a look at an alleged act of such infringement, below.
**************
UPDATE: Upon looking into it further, it appears as though Alex Pardee's developer Jarryd Hall contacted us, The Black Axe, back in May of 2011. Jarryd was looking partner with us, the creators of Gross Out, to make the app work for iPhone either with our art or "other art or design". Does anyone still think it's cool?
The email:
Dear YTWWN:
Seems pretty blatant to us, but we are curious what you guys think. In 2009 my small 5-man Florida/Brooklyn based design firm The Black Axe created a web app called Gross Out. Gross Out allows users to upload or take a photo of themselves (or anything) and smother it with the lowbrow horror-slop illustrations of accomplished illustrators Horsebites and Derek Deal. Gross Out was a huge success for us. We have had over a million unique users and millions of images get the sloppy treatment and it continues to grow.
Here is a user generated image of Tom Cruise blogged by UK based blog Always Thinkin on October 28th 2009:
Now here is an image of Ryan Gosling blogged by Alex Pardee on July 12th 2012 to promote his "new art/photo app" :
An application with basically the same interface, used to apply essentially the same style illustrations; fucked up? You be the judge. As professionals with a following, albeit small in comparison, it is difficult for us to believe Mr. Pardee or his developers were not aware of our Application. Not yet sure if it is worth pursuing legal action, but it definitely smells.
Drawing a blank?
ATTORNEYSCOTT COMMENTARY:
In the world of audio-video works, it can be difficult to show the substantial similarity between an author's original work and somebody else's knock-off. This is due to the large number of variable and design elements in such works, and the mostly lawful ability of someone to create an homage or 'inspired-by' sort of piece that apes a prior piece's style.
Below is a link to a YTWWN reader's original work, which lampoon's the layperson's lack of hockey knowledge, and includes creative and quirky hand-drawn animation adds. There is also a link to a Luminosity ad that had the author of the first video scratching his head. It is not yet known if little white spiky jagged animated streaks shot forward from his head as he did so. Is the second piece an homage to the first? A rip? To what extent is there a difference?
***
Dear YTWWN:
Last fall I was working at a design studio in Seattle called Digital Kitchen and was able to work on a personal project. For those who know me well, or even briefly, know that I am a diehard Canadian-born hockey fan (Canucks) living in the US. I decided to use this as the subject matter and wanted to get the opinions of some of my fellow American creatives on the sport of hockey, which they may or may not know anything about. I combined that with a simple cell animation style that I had yet to really experiment with.
The project turned out great and I had a lot of fun doing it. It wasn't a style that I invented or even advanced in anyway, but rather a simplified version of some other really magnificent work.
Then last week I got a few emails and messages from design friends saying that they had seen a commercial on TV that looked exactly like my Hockey 101 video and if I had done it? I hadn't, but still checked out the link I was being sent and sure enough it was an almost shot for shot remake with different content animations and people. It was the same simple white drawing overtop of footage as people answer questions or expressed thoughts and the imagry appeared. As opposed to my video where I hand drew each animation, theirs was a cheaper knockoff with looping animations that didn't have the same effect. I didn't know whether to be flattered or angry.
My animation had generated me no profit, nor was I interested in it doing so. I would have been thrilled to have been contacted by Lumosity or whoever was producing the content to create something similar to my previous video and be able to benefit that way. Instead someone basically cookie cut my concept, framing, execution, and animation without any reference to myself and generated a ton of views and is probably profiting from online and broadcast spots.
I may be wrong and just need to toughen up, but I would love to get a few more perspectives or some advice on how/if I should proceed in any way.
Mine
Theirs
A Crooked Designer at Hook or By Crook?
ATTORNEYSCOTT COMMENTARY:
One of the exclusive rights of a copyright holder is the right to create derivative works from the copyright holder's copyrighted property. In other words, if you create something, you have the exclusive right to create new works that employ that work, subject to a few exceptions. Below we have a report that Hook or by Crook has done gone and usurped Adam Jackson's right to create derivative works, and has knocked off his work. The evidence, for your viewing pleasure, is below.
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DEAR YTWWN:
So I stumbled across this guy through a mutual friend on facebook and then noticed something slightly familiar about "his" work, I've been a huge fan of Adam Jackson for years so would know his work when I see it, this is why I was amazed to see UK based "illustrator" Spencer "Hook or by Crook" Douglas claiming that the t-shirts he sell's via the HOCBC website are "original and unique".... hmmm..... anyway, I thought "Well somebody is bound to find out soon enough..." Then a few weeks later via Instagram I saw some work by OG Able which looked familiar... jumped on facebook and as I thought a Hook or by Crook "original" was staring me in the face on the "fan" page... wow, this guy is a dick! So here we are, a blog to name and shame all the rip off people around the globe, just hit me up if you have any similar stories of people who deserve to be outed!
See the examples below, considering they look to have been traced, all the originals have way more detail and better penmanship with shading and/or color that puts the shitty HOBC stuff to shame!
If you want to see or buy REAL ORIGINALS where I can only assume the quality of the garments and prints will beat the terrible Hook or by Crook stuff by a mile then check out the following links and support real artists creating real work.
http://adamants.wordpress.com/