Today’s installment looks at a call that is closer than most. As our readers know, an idea is not protectable, but one’s expression of an idea (as “fixed” in a tangible medium, in other words, written or drawn) is as protectable as the day is long. Did Target/Wrangler nab the artist’s expression here, or only his idea? To make matters more interesting, remember that an original combination of basic elements can be protectable even if the basic elements are not.
-Attorney Scott ([email protected])
Wrangler is selling a rip of artist Ross Zietz’s work. He posted it on threadless some time back and now Target is selling the Wrangler rip. Take a look:
Metallica, those icons of RAWK, have unleashed some brand new merch in support of their recent club tour. That merch, though, struck one reader as looking a tad too similar to his own artwork, which, coincidentally, he had submitted to Metallica through its merch agent, Tinman, for potential, compensated use. They apparently liked the artwork to a certain extent, but not enough to engage the artist, so they had someone else “interpret” the artist’s submission. Recall that one of an artist’s exclusive rights is the right to create “derivative” works, and to stop others from using your artwork as a basis for another work without your permission. But, the line delineating derivative works can be tough to draw with certainty.
Nowadays, revenues from merch are one of the primary sources of income for many rock ‘n’ rollers, and the artwork may drive sales as much or more than the band’s name. Is the below “interpretation” a fair and independent creation, or one where the “interpreting” designer sought and destroyed the original artist’s rights?
Below left is the artist’s original work, below right is the artwork used by Metallica.
-AttorneyScott ([email protected])
Today’s installment comes from across the pond. A UK retailer, Schuh, has apparently drawn from the artwork of ANNE was HERE to decorate its new slide sandals. The idea of putting a cute l’il pup on a sandal is not protectable, and anyone who wants to draw a dog can draw a dog and not run afoul of the law. But, ANNE was HERE’s artistic expression, her depiction of a dog, is protectable, and as such cannot be lawfully used by another without her permission. Did Schuh cross the line?
-Attorney Scott ([email protected])
COMPARISON OF ORIGINAL AND SCHUH VERSION:
If you create a derivative work based on the work of another, you will not be entitled to any rights in the underlying work, though you may claim rights in what you add to the work. This addition must be in and of itself protectable (i.e., created by you and possessed of sufficient originality).
See below for an allegation that there’s something rotten in Texas, and it’s not the Frito pie (this time).
-ATTORNEYSCOTT ([email protected])
Fine Southern Gentlemen screen prints and designs custom goods in Austin, TX. One of FSG’s designs garnered popularity via celebrity social media endorsements and a recent late night television appearance. FSG replaced the pulsars featured on Joy Division’s “Unknown Pleasures” album artwork with many overlapping and intertwined Texas shapes. Dubbed “Southern Pleasures,” the design is consistent with FSG’s southern aesthetic and local reputation. Skreened.com (what appears to be an outlet for serial infringers) is offering a complete knock-off shirt boasting the name “Southern Pleasure.” A quick look at the accredited artist will lead you straight to Curtis Eichelberger d/b/a “Curtshirt.com” and his related social media sites. As though this would excuse him from thievery, Curt slightly modified the FSG design. But prior to changing the design slightly, Curt made Instagram posts of what can only be a picture of FSG’s design. Curt thought we wouldn’t notice.
Check out FSG’s original design here: http://www.finesoutherngentlemen.com/store/southernpleasures
Check out the knock-off for sale here: http://skreened.com/curtshirt/texas-division
AN OVERLAP OF THE ORIGINAL AND CURTSHIRT’S POST:
If your work shows up on a product sold by somebody else, what do you do? First, call a lawyer, duh. And do not sign anything that anyone puts in front of you until you do.
-ATTORNEYSCOTT ([email protected]).
Memoirs.com has clearly taken the very cool work of Kyle Theobald (http://www.creativecenter.edu/portfolios/Theobald_Kyle/) and made shirts that they’re selling online. See below for the obvious copying.
Original Work by Theobald: