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])
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:
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.
On March 7th, 2012, Cindy responded with the following (there was no non-disclosure agreement or confidentiality note on the bottom of this email)
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.
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."
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.
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.
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?
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):
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.
Twitter app for iPad. Released 2010.
When the app was redesigned last year, it revolutionized the way you read posts on the iPad. It made me smile the first time I use it and realize that this is original and made the experience unique..which to me represented Twitter's commitment to make something different and better for the sake of better usability. It was very well received and personally I love this interface. It's a trademark design.
It's also FREE.
MyPad2 for Facebook on iPad. Release April 2011.
Copied the whole look and feel, interface design, icon colors and style, the way you can scroll on one column opening up to the posts to reveal detailed panel on the right and pushes 2nd and third columns over to open up. Also name on icons are hidden once you view posts. Exactly and intentional copy. It's FREE for limited version but it comes with a big ad down the bottom of the 2nd column. If you pay original price of $2.99 you get it without ads. Seems like its getting bad reviews as lots of functional issues are problematic and crashes. Nevertheless it copied most if not all the design of Twitter app. I tried to post on their Facebook fan page but I was blocked and post deleted. Hence I am here now.
For those people who never used the app, the more subtle window bounces when flicking through posts, panels opening, way you refresh posts by pushing the column down, navigational design, and animation is more or less copied Download both apps to see for yourselves.
The image screenshot is borrowed from their site. This image doesn't show the detailed third column as posts, but it is more or less 99% copied from Twitter.
I wonder if/when Twitter will sue?