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.

Recasting in the Digital Age

ATTORNEYSCOTT COMMENTARY:

One of the exclusive rights granted to an artist when she creates an original work  is the right to “transform” or “recast” that work in ways she sees fit. That precludes others from, say, taking one’s painting of a unicorn and making unicorn stuffed animals based on the painting. Below, we have a very modern example of alleged unauthorized “transformation” and “recasting.” Read on.

- Scott A. Burroughs, Esq. ( [email protected] )

***

Dear YTWWN:

Quite a lot of activity ensued on Facebook Recently when High Street Gallery posted details of an upcoming art exhibition by Artist Lynn Howarth on Facebook page I know this Great Little Place In Glasgow.

Some visitors remarked “wow” at the posting of the lady’s art but one or two comments were more inquisitive. “Is this an edited photo?” someone enquired. The answer from High Street Gallery representative David Johnston was that no, Ms Howarth’s art was all freehand and on ipad.

Freehand?

Really. Well that’s astounding. It appears we have a new art legend in our midst. Although if you compare her digital art to her traditional art there seems to be  more than a slight difference in skill level. As some digi-artheads got together and started rummaging around Ms Howarths own website things became interesting. Her Facebook pages (linked from her art website) were even more interesting. Gasps from various visitors enquiring “My goodness is that a painting”? were met with yes. Apparently you only have to look closely to see the brush strokes and the sitters were also very patient. Apparently.

 

Digital Painting - not photography based.

 

Now the iPad (which this was created on) is good and the art packages are great as any digi-artist will tell you. No need for great cumbersome digitisers etc. This painting however, and we are not saying it is, but let’s just say we are more than a little convinced it’s a photo-manip….but did she forget the eyes? There is other very telling detail if you look closely….and we did.

So we got suspicious to the integrity of this whole thing. Some quick searching came up with this:-

I's A Freehand Drawing FFS!

Claimed to be a freehand drawing

 

Abbozzo image on the left, Ms Howarths “Freehand Drawing” on the right.

We couldn’t resist in our excited little group sticking this up on a HUGE monitor and checking it out. It’s a photomanip with some kind of drawing or tracing on top, that goes without question but the interesting thing was the copyright.  It belonged to Architects Abbozzo.

Two of our members are photographers and this was enough to get them, lets say, a bit pissed. The hunt continued…..

I't A Freehand Drawing remember

I't A Freehand Drawing remember

This one was quite spectacular.

There were more…..

By this point, one of our members started posting on the High Street Gallery Facebook Page. The posts were removed but some stayed for a while. We decided it was the right thing to do to contact the copyright owners.

Now, YouThought We Wouldn’t Notice states that it is not really about artist against artist, but this gallery owners attitude turned out to be appalling. Ms Howarth may be niaive at best, but the way this next guy was treated is dispicable.

Another Freehand Sketch!

Original by photographer on the left and Ms Howarths  freehand sketch on the right. Unfortunately the quality on this is poor as it was pulled quickly.

The photographer (who has requested that his name be removed) contacted High Street Gallery but was shocked to find that the gallery were standing by their artist. The photographer stated that the gallery defended Ms Howarth. He also pointed out that far from being naive, Ms Howrths own website is covered with copyright symbols on her own work so she is clearly aware.

And if you think all this doesn’t matter – we reckon there were around 10 images in this show at least (We had another fantastic copyright breach of George Square in Glasgow but it too was pulled quickly). Ten images with say an edition of say 500 selling at 100 pounds sterling. That’s a total of half a million in turnover. Surely it’s right that some of this goes to the creator of the true original?

This, of course, does not deal with the fact that digital art is presented as painting when it is photography based photomanipulation or tracing.

Ms Howarth has even done a demo at an iPad store. I wonder what Apple would think?

The only funny thing about all this, her exhibition was called Mi Art (as in My Art but with an iPad twist).

We will be watching.

UPDATE High Street Gallery, further to the glaring copyright infringement cancelled the Lynn Howarth Exhibition. At this time we cannot confirm if they are still selling the questionable prints.

 

 

The Mystery of the Purloined Embroidery Art

ATTORNEYSCOTT COMMENTARY:

When you post something on the internet, you never know where it might turn up. In the below case, an artist’s original embroidery design was apparently borrowed for the cover art on a book entitled, appropriately, “The Long Stitch Good Night: An Embroidery Mystery.” The embroidery piece was apparently reproduced in graphic art form, but this, still would violate the original artist’s exclusive rights to create derivative works from her original embroidery piece. See 17 U.S.C. 106 (2).

Maybe the “embroidery mystery” is how this usage made its way through Penguin’s legal clearance process?

- Scott A. Burroughs, Esq. ( [email protected] )

***

Dear YTWWN:

I am an artist, designer and owner of a small business called SeptemberHouse. My business focuses mostly on needlecraft, specifically embroidery. I design and sell embroidery patterns and recently found out that one of them showed up on the cover of a mass market paperback without my permission.

The pattern was one that I had posted on my blog as a free promotional pattern. Pattern designers often do this to generate views as well as interest and buzz about their work. I always clearly indicate that they are for personal use and copyrighted.  This particular pattern is called “She Scatters Shamrocks” and was released in February 2010 just before St. Patrick’s Day.

Embroidery Pattern by SeptemberHouse

A few months ago, a reader who is familiar with this pattern contacted me to tell me that she saw it on a book cover and wanted to let me know because she wasn’t sure it was supposed to be there. I’m so glad she did this because it was NOT supposed to be there and had she not told me, I would have never known. The book is called “The Long Stitch Good Night” and is written by Amanda Lee a.k.a Gayle Trent published by Penguin/Signet books. It is part of a series of mystery books with a needlework theme. This particular one also had an Irish theme.

book cover for the long stitch goodnight

Book cover containing artwork stolen from embroidery pattern designer

My embroidery pattern appears in the lower right side of the image. It’s small but it is definitely there.  I was never contacted by the publisher or illustrator, asked permission to use the image or given any credit or compensation.

I have distributed a number of DMCA notifications and the image has been removed from some sites. I am still waiting to receive responses on others. At this point I am still deciding on what other action to take.

I also wrote recently wrote a post about this situation on my blog, so september.

Even More Hooting About Infringement

ATTORNEYSCOTT COMMENTARY:

Owls are really hot right now. Really hot. And they have been so for some time. There is no other way to explain the slew of owl-related posts that have popped up here over the last few months. Below is the most recent, with Kirsten claiming that Caroline has sunk her talons into Kirsten’s original owl rendering.

This case is interesting because of the two works’ very similar color palettes. Most Courts, including the 9th Circuit (per this case: L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012)(the case says “the similarities in color arrangements are probative of copying”), find that an allegedly-infringing work that is done in the same color scheme as the original is more likely to be a violation of the Copyright Act.

Has Caroline copied Kirsten? Is the similarity between the color palettes even necessary to reach your decision?

- Scott A. Burroughs, Esq. ([email protected])

***

UPDATE: I have spoken with the artist in question and she admits to having seen my work prior to making the drawing but was very gracious. Because of her kind attitude her name has been removed from this post. Her reply is below, and more thoughts on this matter can be found at my blog.

“I remember to have seen a small picture of your drawing while Googling owls a couple of days earliere, whereafter I drew my own. Actually I thought your drawing was “just a random drawing”/a small funny sketch of a kind, since I’ve only seen your drawing and not any website of yours or link to any name. My own owl was ment to be “just a random drawing” as well, since I drew it while being at work late at night. It was ment just to be another animal drawing. It was only because one of my friends saw my animal drawings (incl the owl) and told me to sell it at her boyfriends brothers store, where she worked. At that time it didn’t even cross my mind, and for that I apologize. No doubt – I’ll stop selling it online first thing after have written this e-mail. And I will let the shops know first thing tomorrow, that I won’t sell the owl any longer to them. I hope that you don’t get a wrong and terrible impression of me – this was never my intention and if I have caused you any greater troubles, I am sorry.”

***

Dear YTWWN:

A friend of mine just wrote to me to say that she had come across some of my artwork online…except not under my name. Eve writes:

I came across this Danish illustrator who did an owl that looks just like yours. At first i thought it was your print!”

I went to the link and sure enough – bam! – there is a drawing of an owl that looks suspiciously like mine. My initial reaction was shock, but then I talked myself down by thinking, ‘well, the world is a big place and it is totally possible that this is a coincidence. It’s not like I’m the first person to have thought of drawing a cute patterned owl.’

Kirsten-McCrea-original

owl-plagiarism-of-kirsten-mccrea

Copy?

But then I looked some more. The detail in the face is UNCANNY. There are elements that are *extremely* similar: the shape of the head, the rendering of the pupils, the lines emanating from the pupils, the shape of the eye area, the circles around the upper eye area, the criss-cross pattern at the crown of the head, the fact that said pattern is broken by broken by a strong central element, the u-shape under the eyes (also broken up by a strong central element), the placement of the tail, and even the freaking colour! The fact that there are ELEVEN very strong similarities between the two images makes me feel fairly sure that this is a copy of my drawing.

I am fighting with a lot of conflicting emotions right now. Half of me wants to find a lawyer and the other half doesn’t want to hurt a fellow artist. A tiny portion of my brain wonders if I am wrong and if there is a chance that Caroline Sillesen has not even seen my drawing (a bigger part says yeah, right). I think part of the frustration is that she is selling this print for 47 fucking Euros. That’s a lot of coin! (I sell mine for $12, word up) I really, really love the internet and it has been a huge resource for me. I have been very inspired by many artists along the way. At times that inspiration was probably a little too apparent. But you know what? I have NEVER directly COPIED someone’s drawing. Someone out there is making serious money off my work, and that is what pisses me off. There is a big difference between inspiration and plagiarism. This is plagiarism.
Or is it? What do you think? I would love to have some feedback on this. I would love to hear your thoughts. Pics below so you can judge for yourselves. The body is not exactly the same at all but the face…the face!

Hot Topic buys OpenWound FX Gartered Legs “as inspiration of new product” released 6 months later

ATTORNEYSCOTT COMMENTARY:

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])

***

Dear YTWNN:

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:

Hi Cindy,

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.

Thank you,

Meaghan O’Keefe


On March 7th, 2012, Cindy responded with the following (there was no non-disclosure agreement or confidentiality note on the bottom of this email)

Hi Meaghan,

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.

Thanks,

Cindy Mesa

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.”

 

Gartered Legs Prosthetics by OpenWound FX

OpenWound FX Gartered Legs - Photo by Robert Burrows, Model/MUA: Merissa Segedi

 

OpenWound FX Gartered Legs - Photo by Robert Burrows

 

 

Lesion Fishnet Thigh Highs by Hot Topic

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

Hot Topic Lesion Thigh High

 

 

 

 

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