Category Archives: Retail

Are Cody Foster’s Fingers Sticky?

ATTORNEYSCOTT COMMENTARY:

It is a tale almost as old as time itself – an independent artist is ripped off by a large company, and that large company monetizes the artist’s work, and profits greatly. It is as if the large company thinks that the conduct will not be noticed. Often, though, with the help of technology, such theft is identified and public scorn (and the law) are brought to bear on the guilty party. Is this such a case?

-Attorney Scott ([email protected])

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Dear YTWWN:

Not much that needs to be said about this. The picture says it all.

 

 

 

Even More Hooting About Infringement

ATTORNEYSCOTT COMMENTARY:

Owls are really hot right now. Really hot. And they have been so for some time. There is no other way to explain the slew of owl-related posts that have popped up here over the last few months. Below is the most recent, with Kirsten claiming that Caroline has sunk her talons into Kirsten’s original owl rendering.

This case is interesting because of the two works’ very similar color palettes. Most Courts, including the 9th Circuit (per this case: L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012)(the case says “the similarities in color arrangements are probative of copying”), find that an allegedly-infringing work that is done in the same color scheme as the original is more likely to be a violation of the Copyright Act.

Has Caroline copied Kirsten? Is the similarity between the color palettes even necessary to reach your decision?

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

***

UPDATE: I have spoken with the artist in question and she admits to having seen my work prior to making the drawing but was very gracious. Because of her kind attitude her name has been removed from this post. Her reply is below, and more thoughts on this matter can be found at my blog.

“I remember to have seen a small picture of your drawing while Googling owls a couple of days earliere, whereafter I drew my own. Actually I thought your drawing was “just a random drawing”/a small funny sketch of a kind, since I’ve only seen your drawing and not any website of yours or link to any name. My own owl was ment to be “just a random drawing” as well, since I drew it while being at work late at night. It was ment just to be another animal drawing. It was only because one of my friends saw my animal drawings (incl the owl) and told me to sell it at her boyfriends brothers store, where she worked. At that time it didn’t even cross my mind, and for that I apologize. No doubt – I’ll stop selling it online first thing after have written this e-mail. And I will let the shops know first thing tomorrow, that I won’t sell the owl any longer to them. I hope that you don’t get a wrong and terrible impression of me – this was never my intention and if I have caused you any greater troubles, I am sorry.”

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Dear YTWWN:

A friend of mine just wrote to me to say that she had come across some of my artwork online…except not under my name. Eve writes:

I came across this Danish illustrator who did an owl that looks just like yours. At first i thought it was your print!”

I went to the link and sure enough – bam! – there is a drawing of an owl that looks suspiciously like mine. My initial reaction was shock, but then I talked myself down by thinking, ‘well, the world is a big place and it is totally possible that this is a coincidence. It’s not like I’m the first person to have thought of drawing a cute patterned owl.’

Kirsten-McCrea-original

owl-plagiarism-of-kirsten-mccrea

Copy?

But then I looked some more. The detail in the face is UNCANNY. There are elements that are *extremely* similar: the shape of the head, the rendering of the pupils, the lines emanating from the pupils, the shape of the eye area, the circles around the upper eye area, the criss-cross pattern at the crown of the head, the fact that said pattern is broken by broken by a strong central element, the u-shape under the eyes (also broken up by a strong central element), the placement of the tail, and even the freaking colour! The fact that there are ELEVEN very strong similarities between the two images makes me feel fairly sure that this is a copy of my drawing.

I am fighting with a lot of conflicting emotions right now. Half of me wants to find a lawyer and the other half doesn’t want to hurt a fellow artist. A tiny portion of my brain wonders if I am wrong and if there is a chance that Caroline Sillesen has not even seen my drawing (a bigger part says yeah, right). I think part of the frustration is that she is selling this print for 47 fucking Euros. That’s a lot of coin! (I sell mine for $12, word up) I really, really love the internet and it has been a huge resource for me. I have been very inspired by many artists along the way. At times that inspiration was probably a little too apparent. But you know what? I have NEVER directly COPIED someone’s drawing. Someone out there is making serious money off my work, and that is what pisses me off. There is a big difference between inspiration and plagiarism. This is plagiarism.
Or is it? What do you think? I would love to have some feedback on this. I would love to hear your thoughts. Pics below so you can judge for yourselves. The body is not exactly the same at all but the face…the face!

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

 

 

 

 

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