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Anatomy of an Infringement?

ATTORNEYSCOTT COMMENTARY

We often get inquiries here at YTWWN regarding the bright line between one artist using another artist’s idea (generally legal!) and one artist using another’s expression of that idea (generally illegal!). Spoiler alert: there is no bright line! Only a fact-intensive analysis and comparison will provide a bit of clarity, and even that is subject to a judge’s (or jury’s) review.

If you were to go to trial in California (my local district) on this issue, the judge would tell the jury the following in connection with this idea/expression dichotomy:

“Copyright law allows the author of an original work to prevent others from copying the way or form the author used to express the ideas in the author’s work. Only the particular expression of an idea can be copyrighted. Copyright law does not give the author the right to prevent others from copying or using the underlying ideas contained in the work, such as any procedures, processes, systems, methods of operation, concepts, principles or discoveries.

The right to exclude others from copying extends only to how the author expressed the ideas in the copyrighted work. The copyright is not violated when someone uses an idea from a copyrighted work, as long as the particular expression of that idea in the work is not copied.”

See 9th Cir. Model Jury Instruction No. 17.3

The above is a mouthful, to be sure. But, in essence, it is saying that an idea is free to use while someone’s unique expression of that idea is protected.

This explains why one person using another’s content in a way that clearly takes the original idea (and would thus be what is known colloquially as a “rip-off,” depending on your definition of the term) may not be a violation of the Copyright Act.

Below we have an example of the interplay between idea and expression. Verdict?

- AttorneyScott ([email protected])

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Dear YTWWN:

It looks like Quiksilver has again ripped off another clothing brand. See below:

 

Who Ya Gonna Call?

ATTORNEYSCOTT COMMENTARY:

Parody art, especially when used on apparel or other products, presents a particular sticky set of legal issues. Technically, art of this nature is what’s known in legal circles as “derivative works,” meaning new art that is created from, or incorporates, pre-existing creative material or intellectual property. Notably, the right to create a derivative work is one of the bundle of rights that is exclusive to the owner of the underlying art. But, an artist is entitled to seek protection for the creative material that is added to the underlying art (as opposed to the whole piece).

Trademark issues are also implicated to the extent the use of the material being parodied will create consumer confusion as to whether the parodied party approved or sponsored the parody product.

Today’s entry is an interesting dispute in this realm. Don’t get slimed!

-AttorneyScott ([email protected])

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Dear YTWWN:

Parody logo t-shirts are big business these days.

What About Yves has knowingly stolen House of Diehl’s Chanel x Ghostbusters design, and is selling it to major retailers worldwide.

House of Diehl is a longstanding NYC-based fashion-art organization who has been featured in the New York Times, The LA Times, and the London Times, and has been exhibited at the Museum of Modern Art, MA, The Museum of the City of New York, and with Creative Time. Some press:

http://www.houseofdiehl.com/pressmenu.html

House of Diehl’s Chanel x Ghostbusters design has been offered for sale since 2011:

http://www.houseofdiehl.com/cgi/store/checkout.pl

The House of Diehl t-shirt appeared in the New York Times on Dec 12, 2013, attributed to House of Diehl

http://www.nytimes.com/2013/12/12/fashion/fashion-logo-parodies-tshirts-strictly-tongue-in-chic.html

What About Yves then “launched” their identical Ghostbusters design in January 2014.

A comparison of the products are below:


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Head over Heels (or Vice Versa) for Copyright Infringement

ATTORNEYSCOTT COMMENTARY:

There exists no compelling legal nuance with which to frame the below situation.  An image allegedly created by one artist was apparently copied almost verbatim by another “artist.” The original artwork reflects a bony skater pulling a (very literal) headstand, and the alleged infringement appears to be a slightly (and perhaps knowingly?) modified version or the original.  One might say that only a ghoul wouldn’t find this rip to cross the line from borrowing an idea to borrowing the expression of the idea. Haunting images are below.

-AttorneyScott – [email protected]

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Dear YTWWN:

It looks like artist Ben “Way Bad” Jensen has been knocked off by a UK company named Who? Clothing (http://www.whoclothing.com). Who? Clothing is apparently marketing garments bearing a design that is ripped from Jensen’s work.

See below (Jensen on the left, Who? Clothing on the right):

 

The artist has brought this dispute to Who? Clothing’s attention, to no avail.

Who? Clothing’s refusal to stop selling the rip is an even bigger bummer given that Jensen had previously sold the design to artist-friendly clothing company Wolves Kill Sheep (http://wolveskillsheep.com).

Adding insult to injury, Who? Clothing gave its shirt the SAME NAME (“Skull Plant”).

Tragic.

 

Is Forever 21 Skirting the Law?

ATTORNEYSCOTT COMMENTARY:

As you may have noticed, posting on YTWWN has not been hot-and-heavy as of late. This can be attributed to a recent uptick in infringement that has kept us lawyering late into the night, and left scant time for posting. This week we will be fixing that, with a number of new posts highlighting different design and art law matters.

This one comes from our law firm’s recent files. One firm client, a company named FATE, was visiting a FOREVER 21 store recently when it discovered, to its chagrin, that FOREVER 21 was marketing a skirt that appeared to be a near-verbatim copy of a FATE design. See below for a comparison; the FATE garment is on the left and the FOREVER 21 garment is on the right:

Long-time readers of YTWWN know that the cut (or silhouette) of a garment is not subject to copyright protection. Judged to be “utilitarian articles” by the powers that be in Congress, clothing silhouettes can be copied without legal recourse. Designs or embellishments that adorn clothing, though, are protected by copyright law. Has such a design been copied here?

- AttorneyScott – [email protected]

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