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."
Some web designers have no shame and just copy original designs and claim them as theirs.
The original is from Charlie Gentle from the UK and the guy that is ripping him off is Adam Schroeder from The Art Institute San Diego, CA
the copy cat: http://www.adamknows.net/
web://contact is an internet agency based in Germany. In June 2010 we relaunched our new website which was featured in some css galleries out there. Since we know there is a small line between inspiration and plagiarism, we've got a quite relaxed point of view on that. But when somebody obviously copies our ideas AND makes money out of it that's when we get pissed off. But form your own opinion:
Let's take a look at some of the copied details. On the left side is our original work, on the right side is the copied work:
Thanks for reading.
My original drawings...
I usually don't mind too much since I didn't create the real life Tourettes Guy , I just drew him. When I see someone is trying to profit from my drawings I gotta go after them.
Wish me luck.
My website they are stolen from..
Adding the links to the biggest offenders:
An eBay seller ripped my friends dress design, name, and description. The seller actually copied the item name and description from my friend's site, and then pasted it into their eBay listing. When Momi boutique called the seller out on it, the seller immediately changed the description, but still insisted that the design was not copied.
Here is the original:
Here is the knock-off item being sold on eBay:
This happens all of the time to her. These talentless, uninspired hacks just copy her designs and try to sell them cheaper on Etsy or eBay.
Is it only coincidence? I say not. Especially since the item description was copied letter for letter.
I came across American Express' commercial for their Social Currency campaign on TV. The part in the add that shows dynamic speech bubbles "projected" on a building and apparently being filled with user generated content to signify a public conversation really struck me as a direct copy of the work I started 5 years ago with TXTual Healing, where I project speech bubbles on buildings to create a stage for dialogue that people could create using text messaging.
I've been doing my project for the past 5 years in multiple countries and languages, and the work has been written about in notable publications like the Economist and Wired, as well as numerous popular websites, such as Google's creative internet.
I'm not questioning the use of speech bubbles, or SMS projecting, but the combination and the context in which amex displays them as a blatant imitation of my work. And from my research years ago I was the first to do this execution of the concept in 2006.
From the looks of it I would say that they didn't even do the projection and this was rendered.
Here is a screen shot from amex's site showing a still from the commercial:
This is a photo of an interactive projection I did in Paris in 2007:
More of this work can be seen here: http://www.txtualhealing.com & http://www.txtualhealing.com/blog/?p=13
Thumbs up for stealing!
I know Zazzle is sort of the wild west of stolen artwork and ideas, but it seems as though this rip comes from a Looney Tunes partner of some sort? To be honest, I'm unsure of how Zazzle and Looney Tunes WB are connected, if at all. The original was printed at www.designbyhumans.com (on the left) and was apparently redrawn/livetraced into Bugs Bunny and sold at the Looney Tunes Zazzle shop.
Looney Tunes version - http://www.zazzle.com/bugs_bunny_ornate_card-137001464250830779
This is a work done for the club esports and wizards who used to plagiarize. Whiletalking with them they refuse to acknowledge that they have copied and say they have created the design based on a free issue. I'd hate to waste time denouncing it.