A killer copy of a killer cupcake? And more!
ATTORNEYSCOTT COMMENTARY:
Below you will find a case of multiple designs, including a delicious but scary-looking baked good, that are alleged to be lifted by another artist, and offered for sale online. Inspiration or theft?
-AttorneyScott ([email protected])
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Dear YTWWN,
My name is Kimberly Hart and I have been sculpting things from polymer clay under Monster Kookies since about 2008. In the past few years, I have had a problem with a copycat that calls themselves Devilish Designs. Strangely enough, our slogans even sound similar. Mine is "The mad scientist of polymer clay!" and has been that way for, well... pretty much since I began. Hers is "The crazy crafter of polymer clay".
Anyways. It's not that she has copied just one or two of my designs - she has copied almost every single one of my concepts. She has stolen my MechOwlie, Steambunneh, Apoctopus, Tentacle Cupcake, Killer Cupcake, Mechanical Jellyfish, Mechanical Birdie, Squ33x, Companion Heart, Pokeheart, etc...
It really IS an awful feeling, you know... to be watched and stalked and then have every single one of your designs ripped off, copied badly, and then sold for a cheaper price.
I'll let the photos do most of the talking, here.
I'll give you some examples that I pulled up from Etsy:
My Etsy Shop: Monster Kookies - monsterkookies.etsy.com
Their Etsy Shop: Devilish Designs - devilishdesigns.etsy.com
Example #1 - Killer Cupcake
Monster Kookies: https://www.etsy.com/transaction/45348591
Devilish Designs: https://www.etsy.com/listing/115298972/killer-cup-cake-kawaii-necklace-polymer
Example #2 - MechOwlie
Monster Kookies: https://www.etsy.com/transaction/67306484
Devilish Designs: https://www.etsy.com/listing/114442135/steampunk-owl-industrial-freestanding
Example #3 - Apoctopus
Monster Kookies: https://www.etsy.com/transaction/47606697
Devilish Designs: https://www.etsy.com/listing/111024521/octopus-steampunk-industrial-pendant
Example #4 - Pokeheart
Monster Kookies: https://www.etsy.com/transaction/115697484
Devilish Designs: https://www.etsy.com/listing/122933759/i-heart-pokemon-geekery-pokemon
Example #5 - Companion Heart
Monster Kookies: https://www.etsy.com/transaction/58545206
Devilish Designs: https://www.etsy.com/listing/117725001/heart-shaped-companion-cube-portal
Example #6 - Steambunneh
Monster Kookies: https://www.etsy.com/transaction/97503858
Devilish Designs: https://www.etsy.com/listing/114441478/bunny-rabbit-freestanding-steampunk
Example #7 - Squ33x
Monster Kookies: https://www.etsy.com/transaction/103917117
Devilish Designs: https://www.etsy.com/listing/113304205/steampunk-mouse-freestanding-industrial
Example #8 - Mechanical Jellyfish
Monster Kookies: https://www.etsy.com/transaction/34698800
Devilish Designs: https://www.etsy.com/listing/119471443/steampunk-jellyfish-small-industrial
Those are all the Etsy examples that I can give you, but there are many more if you compare our galleries:
Monster Kookies Website: http://monsterkookies.com
Monster Kookies Gallery: http://monsterkookies.deviantart.com/gallery/
Monster Kookies Facebook: https://www.facebook.com/monsterkookies.creations
Devilish Designs Website/Gallery: http://www.devilishdesigns.co.uk/
Devilish Designs Facebook: http://www.facebook.com/devilishdesignsartisan
‘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":
Ground Control to Major Case of Infringement?
ATTORNEYSCOTT COMMENTARY:
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] )
***
Dear YTWWN:
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:
http://www.urbanoutfitters.com/urban/catalog/productdetail.jsp?id=26147389
And a Youtube video uploaded 6 years ago featuring our friends rap group wearing the shirt (Yes, I know, they rule):
http://www.youtube.com/watch?v=I9VWCmKQAFE
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.
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?
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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.
Zen and the Art of Copyright Infringement
ATTORNEYSCOTT COMMENTARY:
Today's submission alleges a theft of hand. Buddha's hand, to be exact. The law is pretty clear that one shouldn't palm off the art of others, even if the palm itself is the art, and the palming-off is in the guise of "inspiration."
See below and ask yourself: "What would Buddha do?"
***
Dear YTWWN:
Some kid named Chris Hobe has a "company" called Artistic Revolt based in Atlanta (http://www.art3k.com/) selling cliche clothing which is stealing art from CRYPTIK who is based in Los Angeles (www.cryptik.com). They made tshirts from CRYPTIK's well known 'Palm of Buddha' piece and they began selling it onKarmaloop. The link on Karmaloop has since come down due to public pressure online, but Chris Hobe refuses to acknowledge his fraudulent business practices. They also have plans to steal more images from another street artist EDDIE COLLA based in San Francisco, according to the business partners Instagram account.
From the Files of AttorneyScott – Barney’s Turns to the Blogosphere for the Perfect Ad
AttorneyAnnie here, bringing you another installment of possible content thievery from AttorneyScott's files. Here we go.
You may have heard about the new designer shoe floor at Barney's--men's and women's designer shoes on the same floor for the first time in Madison Avenue history! Or something like that. Barney's has been heavily promoting this new shoe floor with a lovely marketing campaign called "Perfect Pairs," complete with a "Perfect Pairs: Love Letters" campaign on the Barney's blog and proceeds from pricey shoe sales going to the Human Rights Campaign and its Americans for Marriage Equality Program. It's actually quite adorable. And admirable.
What's also adorable--but possibly not as admirable--is Barneys' new Perfect Pairs logo, shown above. Linear illustration, two shoes back to back, a classic man's shoe, a classic woman's pump, set directly above a line of text, the choice of words.
And what's this, above? This is the at least two-year-old logo of The Perfect Pairing--a street style Tumblr created by a New Yorker with an eye for fabulous footwear. Linear illustration, two shoes back to back, a classic man's shoe, a classic woman's pump, set directly above a line of text, the choice of words. Maybe it's pure coincidence?
If you have any questions or comments about the above matter, please feel free to email [email protected]
From the Files of AttorneyScott – C. Wonder Allegedly Flies Too Close to the Sun; is Charged with Infringement
ATTORNEYSCOTT COMMENTARY:
From time to time I will post about a piping hot and fresh new case that our firm has been retained to handle, and has filed in Federal Court. The material that I will post will be from our files and/or the public record, and will reflect claims of copyright infringement against parties alleged to be content thieves or to be otherwise involved in the chain of distribution for infringing, fake, and/or counterfeit goods. Tune in for the first such installment below.
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Z Paneva Studios v. C. Wonder, LLC; et al.
Some of you may already be familiar with the C. Wonder brand and its somewhat complicated story of coming into being. In short, C. Wonder is the newest project for Chris Burch, a man known for, amongst other things, his reported-to-be turbulent relationship with lifestyle brand magnate Tory Burch, a company with which he may or may not still have involvement.
Through C. Wonder, Burch sells home wares, accessories, and other odds and ends that remind some people very much of the items sold by T. Burch. In addition, one shiny new line of C. Wonder products is alleged to misappropriate certain works done by artist Zlatka Paneva at Z Paneva Studios. Ms. Paneva was not approached by C. Wonder or any of its agents or vendors prior to these pieces being sold by C. Wonder. Ms. Paneva's pieces are the first and the third images below, while the items that were offered for sale by C. Wonder are the second and the fourth:
There are other examples, but I think you, kind reader, get the picture.
If you have any questions or comments about the above matter, please feel free to email me at [email protected]
-ATTORNEYSCOTT
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.
They thought this little monster wouldn’t notice
AttorneyScott Commentary:
Sometimes, an apparent theft will not only be an instance of copyright infringement, but also one of trademark infringement. If an artist uses a piece of art as a brand or logo, that is to mark their goods or services when marketing them to the public, it is possible for a thieving pirate to infringe said artist's copyright and trademark rights by purloining the proprietary property. Could this have happened in the below case?
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Dear YTWWN:
I have come to your blog via a friend. I will try not to vent as I share my experience. I created a flash based site so that my artwork would remain on my site. Only recently did I create a portfolio with copyable jpgs, pngs, and the likes. Here is my original logo I created for my site in 2006: http://www.alisapiotrowski.com/LogoArtisticMonster-AlisaPiotrowski.png
- Original Logo ArtisticMonster.com
Every so often I google my name, my art persona, and a few other choice keywords just to find my ranking. Today I found this:
http://www.monsterclassifieds.com.au/
They were too lazy to even change the font.
They have a week to take it down, or hire me for the logo design. I am afraid to know what else of mine was stolen.
Thank you for having a blog where people can post and publicly humiliate those who steal.
Have a Heart.
AttorneyScott Commentary:
Today's submission touches upon two interesting and inter-connected issues of law.
First, when an artist sets out to technnically reproduce a naturally-occurring phenomenon, such as a flower, an animal, or, as in this case, a bodily organ, the copyright protection for that depiction will be thin. The reasoning behind this is that there are only so many ways to realistically depict something like a skull or heart as it appears in nature, and if two artists set out to capture this appearance, they may do so in a substantially similar way.
Second, the submitter of the material for this post seems to take umbrage not at the theft of another artist's work, but of the minimal creativity involved in 'google-sourcing' an image and then slightly tweaking it. As we have previously discussed, the creator of a derivative work obtains protection only for what she adds to the found work. What was added in the below case, and is it enough to qualify for copyright protection?
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Dear YTWWN:
This is my 1st post here. It is what it is. I was just looking around, clicking links that go on endlessly, when I found a link off Threadless for Society 6. After browsing their site, I clicked another link to Design Milk. Here I found a "seemingly nice and sweet" art print titled "In My Heart" by Wesley Bird. Just because I've been looking at so many rips on the site, I googled human hearts and found the original.
Original image: 
http://www.google.com/imgres?q=human+heart+anatomy&start=191&hl=en&safe=off&client=safari&rls=en&biw=1440&bih=780&addh=36&tbm=isch&tbnid=VH5ST20d7IyGoM:&imgrefurl=http://cllctr.com/view/610d9e29f6a04c6a2257fe0e53143ba0&docid=G7AFutctg9tL_M&imgurl=http://cllctr.com/image/610d9e29f6a04c6a2257fe0e53143ba0/576&w=450&h=450&ei=_SnJT5j9IIP88gTe4Pj6Dg&zoom=1&iact=hc&vpx=339&vpy=417&dur=13107&hovh=225&hovw=225&tx=134&ty=144&sig=107424886253575235147&page=6&tbnh=139&tbnw=154&ndsp=41&ved=1t:429,r:34,s:191,i:77
Ripped image :
http://society6.com/product/In-My-Heart_Print?tag=design-milk
All he did was reflect it and tone it back. Anybody's thoughts?