A killer copy of a killer cupcake? And more!

ATTORNEYSCOTT COMMENTARY:

Below you will find a case of multiple designs, including a delicious but scary-looking baked good, that are alleged to be lifted by another artist, and offered for sale online. Inspiration or theft?

-AttorneyScott ([email protected])

***

Dear YTWWN,

My name is Kimberly Hart and I have been sculpting things from polymer clay under Monster Kookies since about 2008. In the past few years, I have had a problem with a copycat that calls themselves Devilish Designs. Strangely enough, our slogans even sound similar. Mine is “The mad scientist of polymer clay!” and has been that way for, well… pretty much since I began. Hers is “The crazy crafter of polymer clay”.

Anyways. It’s not that she has copied just one or two of my designs – she has copied almost every single one of my concepts. She has stolen my MechOwlie, Steambunneh, Apoctopus, Tentacle Cupcake, Killer Cupcake, Mechanical Jellyfish, Mechanical Birdie, Squ33x, Companion Heart, Pokeheart, etc…

It really IS an awful feeling, you know… to be watched and stalked and then have every single one of your designs ripped off, copied badly, and then sold for a cheaper price.

I’ll let the photos do most of the talking, here.

I’ll give you some examples that I pulled up from Etsy:

My Etsy Shop: Monster Kookies – monsterkookies.etsy.com
Their Etsy Shop: Devilish Designs – devilishdesigns.etsy.com

Example #1 – Killer Cupcake

Monster Kookies: https://www.etsy.com/transaction/45348591
Devilish Designs: https://www.etsy.com/listing/115298972/killer-cup-cake-kawaii-necklace-polymer

Example #2 – MechOwlie

Monster Kookies: https://www.etsy.com/transaction/67306484
Devilish Designs: https://www.etsy.com/listing/114442135/steampunk-owl-industrial-freestanding

Example #3 – Apoctopus

Monster Kookies: https://www.etsy.com/transaction/47606697
Devilish Designs: https://www.etsy.com/listing/111024521/octopus-steampunk-industrial-pendant

Example #4 – Pokeheart

Monster Kookies: https://www.etsy.com/transaction/115697484
Devilish Designs: https://www.etsy.com/listing/122933759/i-heart-pokemon-geekery-pokemon

Example #5 – Companion Heart

Monster Kookies: https://www.etsy.com/transaction/58545206
Devilish Designs: https://www.etsy.com/listing/117725001/heart-shaped-companion-cube-portal

Example #6 – Steambunneh

Monster Kookies: https://www.etsy.com/transaction/97503858
Devilish Designs: https://www.etsy.com/listing/114441478/bunny-rabbit-freestanding-steampunk

Example #7 – Squ33x

Monster Kookies: https://www.etsy.com/transaction/103917117
Devilish Designs: https://www.etsy.com/listing/113304205/steampunk-mouse-freestanding-industrial

 

Example #8 – Mechanical Jellyfish

Monster Kookies: https://www.etsy.com/transaction/34698800
Devilish Designs: https://www.etsy.com/listing/119471443/steampunk-jellyfish-small-industrial

Those are all the Etsy examples that I can give you, but there are many more if you compare our galleries:

Monster Kookies Website: http://monsterkookies.com
Monster Kookies Gallery: http://monsterkookies.deviantart.com/gallery/
Monster Kookies Facebook: https://www.facebook.com/monsterkookies.creations

Devilish Designs Website/Gallery: http://www.devilishdesigns.co.uk/
Devilish Designs Facebook: http://www.facebook.com/devilishdesignsartisan

 

See Art, Steal Art?

ATTORNEYSCOTT COMMENTARY:

Below we have a situation where a painter appears to have appropriated the work of a photographer to create his “own” version of the photographed content. For photographs, the angle, the composition, the lighting, and the other creative elements captured on film are subject to protection. Has the painter taken these things from the photographer?

And remember, folks, you cannot take the creative expression of a work by transferring it to another medium.

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

***

Dear YTWWN:

Quoted from the artist “STUNTKID’S”  FB page

“Walking around Art Basel, this weekend I came across a few pieces in the Scope show that looked pretty familiar. There was a sampling of 3 pieces presented by the Robert Fontaine Gallery all by the same artist. I recognized my photography in two of them and the third was a copy of my good friend Marie Killen’s photo. When i got home a quick google search reveled that nearly his entire body of work was comprised of other peoples photography. No credits were given, though that wouldn’t have put the artist in the clear. Josafat Miranda hadn’t bothered to change the composition or content in any appreciable way, even though that too would not have put him in the clear.

For me, photography was a hobby, something i did for fun. But it was art. These weren’t candids, they were carefully composed, edited photos. The model traveled, did her makeup and helped style the shoot. Put simply, it was a collaborative artistic endeavor by me and the model Tracy P

Marie Killen is a wildly talented photographer living in North Carolina. Photography is her passion and craft and she does it extremely well. In my opinion she’s one of the best photographers in her genre. Her shoots require far more work and planning than mine ever did. She’s developed, through hard work and practice, a recognizable style.

What Josafat Miranda has done here reveals a total disrespect for photography as an art form. He’s quickly and with very little creative altercation, harvesting the yield of someone else’s hard work. What makes a painting strong, isn’t just the brush strokes and the rendering method, more, much more, than that is the composition, the subject matter and the hundreds of creative decisions that go into making an original piece of art.”

Josafat Miranda
https://www.facebook.com/pages/Josafat-Miranda-Studio/152757964766167

Marie Killen:
https://www.facebook.com/pages/Marie-Killen-Photography/107005579349771

Is this plagarism? you be the judge! the discussion started here

http://www.facebook.com/photo.php?fbid=10152349056570232

 

‘Tis the Season to Appropriate Art?

ATTORNEYSCOTT COMMENTARY:

The cut (or silhouette) of a shirt, dress, tunic, tank top, or any other clothing item is not protected by Copyright Law in the U.S. of A. (though there is pending legislation that may change that). The graphic artwork on that clothing item, however, is subject to protection just like any painting, drawing, rendering or other form of 2-D artwork. The degree of protection that will be afforded that graphic artwork varies from thick protection to thin protection depending on the design at issue. In the below case, though, it looks like the alleged infringer took the whole kit and caboodle, which would make this a very sticky legal situation indeed.

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

***

Dear YTWWN:

Not much to say here. As a fashion graphic designer myself, I was a little shocked when I walked into General Pants and saw this on the weekend. Something Else have directly ripped off independent artist Katie Scott, with absolutely no changes to the design. See below.

From the General Pants website, Something Else “Curiosity” tank:

From Katie Scott’s website, titled “Magic Science”:

 

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.

 

 

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