Tracing for Money

AttorneyScott Commentary:

Los Angeles, CA – Recently, with the rise of Shepard Fairey and Thierry “Mr. Brainwash” Guetta, appropriation art has become a major “thing.” Not since the days of Warhol has it been so hip to take works from other artists and add your own vision, spin, or angle to create a “new” piece of art.

In legal jargon, we call such pieces “derivative works.” A derivative work is a work that builds upon an underlying work that someone else earlier created.

Legally speaking, most appropriation art pieces are infringing unless: (a) the artist for the derivative work owns the underlying work and the derivative, (b) the artist for the derivative work gains the permission of the owner of the underlying work to use the work, or (c) the use of the underlying work is so minor, or the derivative work so greatly transforms the underlying work, that the use qualifies as a fair use*.

Below are a few examples of appropriation art. The artist attempts to “transform” the underlying work by adding her own expression. Do you think it qualifies as a “fair use” under prong (c) above?

As a hint, perhaps you can recall (or Google) the lawsuit filed by the AP photographer against Shepard Fairey for his Obama “Hope” piece. How did that one go?

*fair use is a whole ‘nother ball of wax, which we will cover in a future post.

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Dear YTWWN:

Hi.

I’m all for creative people honing their skills by using various mediums, photography, tutorials, brushes, etc so long as it helps them to finally produce a piece of work that is original, unique and entirely theirs.
However, for a while i’ve been annoyed with the works of UK ‘artist’ Peatree Bojangles. http://www.peatreebojangles.co.uk She seems solely interested in taking existing photographs,often by well established photographers, adjusting the levels a bit and drawing over them slightly and then passing them off as her own and selling them on her site – every single one has no mention of the original photographer of the works or any mention of copyright.
Personally, I don’t think this is on. Here’s just a few examples:

I’m tired of seeing stuff like this with no information of the original photographer, and when you see that money is being made off the back of this, it gets my back up. What do you say YTWWN?

Steampunk Evil Eye Rip Off after buying original art from the artist and copying it-badly

AttorneyScott Commentary:

ETSY seems to be a place where thieves, pirates, and copyists of all stripes abound. The anonymity and easy access afforded by the internet has allowed the copyists to work quickly and with a great level of detail, and the wide swaths of creativity posted and hosted on ETSY seems to prove time and time again to be too much for the pirates to resist.

Below is what is claimed by one YTWWN reader to be an example of just such ETSY piracy. One user of the site purchased a work from the original artist, and later posted for sale a product that bore an eerie similarity to the original purchased piece.

Again, though, it is important to note that ideas are not protectable and only the expression of an idea will be protected. Courts in New York and California have applied what they call the “reasonable observer” test to decide whether or not illegal copying of artistic expression has occurred. Under this test, if a “reasonable observer” believes that the alleged copier took protectable expression from the original, then the alleged copier will be held liable for copyright infringement, and will be responsible for paying damages. Who decides what a “reasonable observer” would believe? Why, the jury, of course.

Ponder the below and consider whether you believe that the alleged copier has taken protectable expression from the original.

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Dear YTWWN:

Most of us on Etsy worry about the evil “Made in China” factory knock-offs and see them as being our biggest fear when it comes to cheap copies of our art. This article is proof positive that home grown copyists are just as much of a threat. Below is a  blatant copyist, based in Virgina, U.S.A. She (Micha Cole aka Pirotess) is a message therapist who sold makeup in her Etsy shop until she bought one of Jill Lawrence’s very unique and original Steampunk Wire Wrapped Eyes in the summer of 2011 (Evidenced by her feedback). Micha then spent the next 3 months practicing, attempting to make exact copies of that eye and other items from Jill’s Twistedsisterarts Etsy shop http://www.etsy.com/shop/twistedsisterarts .

See Jill’s original eye on the left and Micha of Abluerosescreation Etsy shop http://www.etsy.com/shop/ABlueRosesCreation  – copied eye on the right. You decide….

Original Eye

 

 

Unfortunately, Etsy does exactly nothing about this. So it’s up to the artist being ripped off to pay a lawyer to send a cease and desist letter to the offending party.

Usually a nicely written note asking the copyist to stop, is met with defiance  or vulgarities because they knew exactly what they were doing in the first place.

Copied Eye

Web Slight – Misappropriation of a Site’s Layout and Appearance

AttorneyScott Commentary:

People argue that the appearance of a web site is not covered by copyright protection because it is not a tangible item. Nope. A web site is covered by copyright protection just like any other work of art. Both the programming code and the appearance of a web site are fully covered by the Copyright Act.

See below for a work created by bust + out solutions for Best Buy:


The creative folks at bust + out were miffed when they stumbled upon the below web site, which was affiliated with Deloitte, a very large consulting firm with (presumably) a substantial design budget:

What makes the situation all the more ironic is that the web site solicits new and exciting ideas.

What do you think: does Deloitte need to do some consulting of its own – with a designer possessing original ideas and/or a copyright attorney?

Too similar not to notice!

AttorneyScott Commentary:

As overseas production becomes cheaper and easier to access for U.S. companies, we are seeing more and more jewelry knock-offs coming from overseas factories and mills. Is the below such a knock-off, or just another expression of a similar idea?

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Dear YTWWN:

I’ve been on Etsy as a seller and shopper since 2005. As the site grew, so did knock offs. Now it (still) seems commonplace!

Joanna Rutter is a UK illustrator & designer that makes darling pieces out of metal. Over the years, I’ve noticed more & more resellers selling her designs as mass-produced ‘supplies’. I even saw a few shops that blatantly state ‘I handcut these designs.. bla bla bla’. The birds, whale, cloud, umbrella & leaves are now everywhere. I’ve taken a few items from her sold section of her Etsy shop, and found the pieces resellers are hocking to the masses (from South Korea, USA & China) I contacted Joanna last year, pointing out my findings, but I never received a reply. I thought I’d bring my beef here to share & bring awareness. Joanna’s shop is at: joannarutter.etsy.com

Shame on You!

AttorneyScott Commentary:

The famed Judge and writer with the almost-too-perfect name of Learned Hand wrote once in an opinion on copyright law that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” That is to say, if one steals he expression from another, it often doesn’t matter if additional expression is added. It is important to note, though, that if no expression is stolen, then there is no legal claim for infringement. Also, style is not something that lends itself easily to copyright protection. With those things in mind, please consider the below.

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Dear YTWWN:

Quite a simple story.

When confronted this person http://amburgerandfries.deviantart.com/ , the artist denied that she copied http://loish.deviantart.com/ ‘s style and even denies knowing her at all

Here is only one example of many from what she does with Loish’s works:

 

 

Not only exact copies are copies. A shaken hand in a stroke can change length and size of a feature and try to mock us.

Some people that are used to recolor other’s people pictures or google’ page 1 photos change little stuff and try to disrupt the original pictures so they can both disguise and own somehow the picture they’re blatantly stealing.
If you do this and keep it to yourself you might get some learning value from it, but using it to get work or to be famous it’s not only lame but morally wrong.
People, you can be so much better than this!!

 

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