‘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":
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])
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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]
A Johnny Come Lately?
ATTORNEYSCOTT COMMENTARY:
Unbeknownst to many, there is a big difference between trademark and copyright law. While copyright law protects the artist, and allows her to exclusively exploit her original work, trademark law is is in place to protect the consumer. For example, if you buy a hat with a Nike swoosh across it, you need to be able to trust that the hat is authorized and was created by Nike at one of its factories, and not by AttorneyScott in his garage. In other words, trademark law ensures that consumers can purchase goods from companies they trust. If someone else attempts to brand their goods with a mark that might confuse the consumer as to who created the good, trademark infringement is the claim.
Below, you will find a logo that appears to be very similar to that of a prior user. Would seeing this on a shirt or a hat or a bag confuse the consumer into believing it was a Johnny Cupcake product, or affiliated with Johnny Cupcake?
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Dear YTWWN:
I was browsing a sticker site where I am getting a few stickers made and came across this:
This is the Mindless Tees logo who have said they started up in 2011.
This is the Johnny cupcakes logo. Johnny cupcakes goes back to at least 2000.
I generally don't really chase down things like this but I really felt compelled to put this obvious logo theft take place.
Keep buying Johnny, he's the original.
Virgin Blak rips off Death/Traitors
ATTORNEYSCOTT COMMENTARY:
Typical t-shirt motifs like skulls and birds and the like are subject to strong copyright protection so long as they are not technical depictions of the naturally-occurring thing (such as a very accurate depiction of a skull that looks like the skull that is actually holding your brains in right now). In the below example, it appears as if someone liked someone else's motif, and helped themselves.
A twist in this case is that the alleged offender is overseas. With the internet being what it is and how it is, a dude with a dial-up connection in some remote island in Micronesia can just as easily knock you off as the guy trawling the aisles of the latest trade show with his spy camera. What the internet taketh, it also giveth back, though - the reader (it is assumed) was able to identify the alleged knock-off artist after the KOA posted the infringing item online.
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Dear YTWWN:
I run an independent clothing label called Death/Traitors, and was shocked to have someone email me a link to South Korean label Virgin Blak. The photo speaks for itself, they didn't even bother to take my brand name off the stolen design!!!!!
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.
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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
Trelise Cooper kids rips off Emily Temple Cute Lulu
AttorneyScott Commentary:
In the United States, unlike most developed nations, the cut or silhouette of a piece of clothing is not subject to copyright protection because the powers that be feel that clothing is 'utilitarian' and thus cannot be art. Many would disagree, I imagine.
The design printed on the fabric of a garment is, however, subject to protection as a two-dimensional work of art. If someone copies the fabric design of another without permission, that someone will be liable for copyright infringement. Is that the case below?
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Dear YTWWN:
You'd think after Grey-Bow-Sweater-Gate Trelise Cooper would be done with plagiarism. Especially of Japanese brands, as Alannah Hill got picked up for ripping off Emily Temple Cute around the same time. Yes, ladies, other people who like fashion have heard of Japanese lolita brands as well.
But I saw this Trelise Cooper kids' dress on Ebay and thought it looked strangely familiar:
Lo and behold, a quick squizz at Yahoo Japan confirmed my suspicions:
This is an earlier release from Emily Temple Cute 'Lulu'. The print has been uglified slightly, but it's still 100% a rip off.
ASOS try to get away with a blatant rip off
AttorneyAnnieCommentary:
Sometimes, it's pretty obvious that someone copied your design, even if they change it up a little, or "make it shittier", as design duo Doublenaut put it in the case below, submitted by a YTWWN reader. In a case of such obvious inspiration--and bold Twitter tactics--what could ASOS muster up in defense? Of course, they could insist that their designers came up with the graphic all on their own, but they may also choose to meticulously point out all the differences in the two designs to try to prove that the two designs aren't that alike after all. You know, Doublenot's wolf has an arrow in its mouth while ASOS' weapon looks like a sword. Doublenot puts an eye above the wolf's head, but ASOS crowns its wolf. The trouble for ASOS is that a "dissimilarity analysis" is improper. Courts will not accept a step-by-step dissection of dissimilar characteristics to prove that two designs aren't identical. So, what do you think? Is ASOS just out of luck on this one?
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I was scrolling through my twitter feed last night, only to notice a retweet from one of my international friends about ASOS and a Toronto based duo called Doublenaut. Someone pointed it out to them that ASOS had basically stolen a design of theirs. I did actually have quite a bit of respect for ASOS until now. It makes you wonder, how many other designs have they stolen?
Link to Double Naut Store (Original):
http://shop.doublenaut.com/clothing/shield/
Link to ASOS store (Rip-off):
http://www.asos.com/ASOS/ASOS-T-Shirt-With-Wolf-Print/Prod/pgeproduct.aspx?iid=2025489&cid=7616&Rf-400=53&sh=0&pge=2&pgesize=20&sort=-1&clr=Greymarl&r=2
The guys from Doublenaut have been in contact with the ASOS help desk and it looks like they were fobbed off.
Doublenaut have since been told that ASOS are looking into it.
I understand that it could be the work of one designer faker within ASOS who is stealing designs and trying to make themselves look good, but it really just makes the whole company look bad. If this is the case then the faker in question should be named, shamed and then fired. We will update this story with more details as the situation unfolds.
Top Jeweller Vs Topshop
AttorneyAnnieCommentary:
Jewelry and accessories are considered "useful articles" in copyright law, meaning they're not just works of art and have some utilitarian or functional purpose as well. Rings, for example, are to be worn on your hand as adornment. The only part of such useful articles that are protected by copyright are the "nonuseful" parts. Stuff like carvings and intricate design work may be copyrightable if they can be identified separately and can exist independently of the object's utilitarian aspects. This is known in copyright law as the separability doctrine. Below is a great example from a YTWWN reader. The ring itself is a noncopyrightable useful article, but what about the intricate markings on the band and the cushion of the gem?
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FLATTERED or OUTRAGED?! William Llewellyn Griffiths the creator behind Australian jewellery brand Metal Couture has been making intricate pieces of jewellery for over thirty years, it seems however that he has a fan in Topshop's 'design team.' You be the judge....
Topshop's Cleopatra Box Ring
William Llewellyn Griffiths
Metal Couture Jewellery's
Topaz Locking Ring
Infamous & Tilly’s Knocks Off a Non Profit Organization
AttorneyScott Commentary:
The below example illustrates what lawyers and judges refer to as the "idea-expression" dichotomy. Basically, it is perfectly legal to be inspired by the idea or ideas behind another author's work, but it is illegal (a violation of the Copyright Act) to take the original expression from the work of another. Where does the line get drawn? That's up to the Judge, but this case appears to me to be one where the expression has been lifted. Agree?
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Infamous Apparel (owned by department store Tilly's) stole a design I did for the Salvation Army's Wardrobe Apparel. It is currently on their store racks.
100% of the proceeds generated from TSA's clothing is donated to people in dire need, world wide. People holding onto their lives depend on this kind of support. For shame, Tilly's, taking money away from those in need. Have you no heart?
My original design:
Their design (notice they didn’t even bother changing much):
