Copyright Fatality? Derivative work or lawful reference?
AttorneyScott Commentary:
One of the exclusive rights that inures to a copyright holder is the right to create a derivative work from an original copyrighted work, as previously discussed. If another artist creates something that adds on, embellishes, or transforms that original work, she may obtain copyright protection for the work that she added, but she cannot exploit the derivative without the authorization of the copyright holder in the underlying work.
Looking at images for inspiration and then created an original work inspired by that image or images is fair game, however, so long as only the idea is used and the expression is new and the author's own. 'Referencing' an image is somewhat of a closer call, as the legality will be decided by what it was that was used during the 'reference,' whether or not that material is copryightable, and the amount of the taking.
Recall the big AP photographer v. Shepard Fairey 'Obama Hope Poster' rigamarole - Shepard got creamed in that case because it was shown that he basically traced and colorized an original photograph. The result may have been different if he had simply taken the placement of Obama's hands, or the way his head was tilted, and added all new material around that element. Or, maybe not. What say you in regard to the alleged taking below?
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Dear YTWWN:
Fatal Clothing references photographers images without consent for their t-shirt designs.
Photographs by Dangerously Dolly and Greg Truelove
About:
Fatal Clothing llc.
Owned and operated by Bill Gaylord & Mark Atkins. We are located in Southern California.
Fatal Clothing specializes in Traditional Tattoo Influenced art. Servicing consumers worldwide via internet, retail stores and wholesale distribution. Mark Atkins started his early venture working out of his garage while in high school designing T-Shirts selling to friends and family. As the popularity prospered, it was apparent to Mark, to grow the business he needed help. In late 2008, Bill Gaylord joined forces with Mark to take Fatal to the next level. Today, Fatal Clothing currently sells to hundreds of Retail stores worldwide. Our reputation for providing unique artwork, quality and service has impressed all our clients.
We strive to stay on top.
Fatal Clothing or Fatal Rip-Off?
Drawing a blank?
ATTORNEYSCOTT COMMENTARY:
In the world of audio-video works, it can be difficult to show the substantial similarity between an author's original work and somebody else's knock-off. This is due to the large number of variable and design elements in such works, and the mostly lawful ability of someone to create an homage or 'inspired-by' sort of piece that apes a prior piece's style.
Below is a link to a YTWWN reader's original work, which lampoon's the layperson's lack of hockey knowledge, and includes creative and quirky hand-drawn animation adds. There is also a link to a Luminosity ad that had the author of the first video scratching his head. It is not yet known if little white spiky jagged animated streaks shot forward from his head as he did so. Is the second piece an homage to the first? A rip? To what extent is there a difference?
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Dear YTWWN:
Last fall I was working at a design studio in Seattle called Digital Kitchen and was able to work on a personal project. For those who know me well, or even briefly, know that I am a diehard Canadian-born hockey fan (Canucks) living in the US. I decided to use this as the subject matter and wanted to get the opinions of some of my fellow American creatives on the sport of hockey, which they may or may not know anything about. I combined that with a simple cell animation style that I had yet to really experiment with.
The project turned out great and I had a lot of fun doing it. It wasn't a style that I invented or even advanced in anyway, but rather a simplified version of some other really magnificent work.
Then last week I got a few emails and messages from design friends saying that they had seen a commercial on TV that looked exactly like my Hockey 101 video and if I had done it? I hadn't, but still checked out the link I was being sent and sure enough it was an almost shot for shot remake with different content animations and people. It was the same simple white drawing overtop of footage as people answer questions or expressed thoughts and the imagry appeared. As opposed to my video where I hand drew each animation, theirs was a cheaper knockoff with looping animations that didn't have the same effect. I didn't know whether to be flattered or angry.
My animation had generated me no profit, nor was I interested in it doing so. I would have been thrilled to have been contacted by Lumosity or whoever was producing the content to create something similar to my previous video and be able to benefit that way. Instead someone basically cookie cut my concept, framing, execution, and animation without any reference to myself and generated a ton of views and is probably profiting from online and broadcast spots.
I may be wrong and just need to toughen up, but I would love to get a few more perspectives or some advice on how/if I should proceed in any way.
Mine
Theirs
They thought this little monster wouldn’t notice
AttorneyScott Commentary:
Sometimes, an apparent theft will not only be an instance of copyright infringement, but also one of trademark infringement. If an artist uses a piece of art as a brand or logo, that is to mark their goods or services when marketing them to the public, it is possible for a thieving pirate to infringe said artist's copyright and trademark rights by purloining the proprietary property. Could this have happened in the below case?
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Dear YTWWN:
I have come to your blog via a friend. I will try not to vent as I share my experience. I created a flash based site so that my artwork would remain on my site. Only recently did I create a portfolio with copyable jpgs, pngs, and the likes. Here is my original logo I created for my site in 2006: http://www.alisapiotrowski.com/LogoArtisticMonster-AlisaPiotrowski.png
- Original Logo ArtisticMonster.com
Every so often I google my name, my art persona, and a few other choice keywords just to find my ranking. Today I found this:
http://www.monsterclassifieds.com.au/
They were too lazy to even change the font.
They have a week to take it down, or hire me for the logo design. I am afraid to know what else of mine was stolen.
Thank you for having a blog where people can post and publicly humiliate those who steal.
Have a Heart.
AttorneyScott Commentary:
Today's submission touches upon two interesting and inter-connected issues of law.
First, when an artist sets out to technnically reproduce a naturally-occurring phenomenon, such as a flower, an animal, or, as in this case, a bodily organ, the copyright protection for that depiction will be thin. The reasoning behind this is that there are only so many ways to realistically depict something like a skull or heart as it appears in nature, and if two artists set out to capture this appearance, they may do so in a substantially similar way.
Second, the submitter of the material for this post seems to take umbrage not at the theft of another artist's work, but of the minimal creativity involved in 'google-sourcing' an image and then slightly tweaking it. As we have previously discussed, the creator of a derivative work obtains protection only for what she adds to the found work. What was added in the below case, and is it enough to qualify for copyright protection?
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Dear YTWWN:
This is my 1st post here. It is what it is. I was just looking around, clicking links that go on endlessly, when I found a link off Threadless for Society 6. After browsing their site, I clicked another link to Design Milk. Here I found a "seemingly nice and sweet" art print titled "In My Heart" by Wesley Bird. Just because I've been looking at so many rips on the site, I googled human hearts and found the original.
Original image: 
http://www.google.com/imgres?q=human+heart+anatomy&start=191&hl=en&safe=off&client=safari&rls=en&biw=1440&bih=780&addh=36&tbm=isch&tbnid=VH5ST20d7IyGoM:&imgrefurl=http://cllctr.com/view/610d9e29f6a04c6a2257fe0e53143ba0&docid=G7AFutctg9tL_M&imgurl=http://cllctr.com/image/610d9e29f6a04c6a2257fe0e53143ba0/576&w=450&h=450&ei=_SnJT5j9IIP88gTe4Pj6Dg&zoom=1&iact=hc&vpx=339&vpy=417&dur=13107&hovh=225&hovw=225&tx=134&ty=144&sig=107424886253575235147&page=6&tbnh=139&tbnw=154&ndsp=41&ved=1t:429,r:34,s:191,i:77
Ripped image :
http://society6.com/product/In-My-Heart_Print?tag=design-milk
All he did was reflect it and tone it back. Anybody's thoughts?
A Crooked Designer at Hook or By Crook?
ATTORNEYSCOTT COMMENTARY:
One of the exclusive rights of a copyright holder is the right to create derivative works from the copyright holder's copyrighted property. In other words, if you create something, you have the exclusive right to create new works that employ that work, subject to a few exceptions. Below we have a report that Hook or by Crook has done gone and usurped Adam Jackson's right to create derivative works, and has knocked off his work. The evidence, for your viewing pleasure, is below.
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DEAR YTWWN:
So I stumbled across this guy through a mutual friend on facebook and then noticed something slightly familiar about "his" work, I've been a huge fan of Adam Jackson for years so would know his work when I see it, this is why I was amazed to see UK based "illustrator" Spencer "Hook or by Crook" Douglas claiming that the t-shirts he sell's via the HOCBC website are "original and unique".... hmmm..... anyway, I thought "Well somebody is bound to find out soon enough..." Then a few weeks later via Instagram I saw some work by OG Able which looked familiar... jumped on facebook and as I thought a Hook or by Crook "original" was staring me in the face on the "fan" page... wow, this guy is a dick! So here we are, a blog to name and shame all the rip off people around the globe, just hit me up if you have any similar stories of people who deserve to be outed!
See the examples below, considering they look to have been traced, all the originals have way more detail and better penmanship with shading and/or color that puts the shitty HOBC stuff to shame!
If you want to see or buy REAL ORIGINALS where I can only assume the quality of the garments and prints will beat the terrible Hook or by Crook stuff by a mile then check out the following links and support real artists creating real work.
http://adamants.wordpress.com/
ASOS try to get away with a blatant rip off
AttorneyAnnieCommentary:
Sometimes, it's pretty obvious that someone copied your design, even if they change it up a little, or "make it shittier", as design duo Doublenaut put it in the case below, submitted by a YTWWN reader. In a case of such obvious inspiration--and bold Twitter tactics--what could ASOS muster up in defense? Of course, they could insist that their designers came up with the graphic all on their own, but they may also choose to meticulously point out all the differences in the two designs to try to prove that the two designs aren't that alike after all. You know, Doublenot's wolf has an arrow in its mouth while ASOS' weapon looks like a sword. Doublenot puts an eye above the wolf's head, but ASOS crowns its wolf. The trouble for ASOS is that a "dissimilarity analysis" is improper. Courts will not accept a step-by-step dissection of dissimilar characteristics to prove that two designs aren't identical. So, what do you think? Is ASOS just out of luck on this one?
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I was scrolling through my twitter feed last night, only to notice a retweet from one of my international friends about ASOS and a Toronto based duo called Doublenaut. Someone pointed it out to them that ASOS had basically stolen a design of theirs. I did actually have quite a bit of respect for ASOS until now. It makes you wonder, how many other designs have they stolen?
Link to Double Naut Store (Original):
http://shop.doublenaut.com/clothing/shield/
Link to ASOS store (Rip-off):
http://www.asos.com/ASOS/ASOS-T-Shirt-With-Wolf-Print/Prod/pgeproduct.aspx?iid=2025489&cid=7616&Rf-400=53&sh=0&pge=2&pgesize=20&sort=-1&clr=Greymarl&r=2
The guys from Doublenaut have been in contact with the ASOS help desk and it looks like they were fobbed off.
Doublenaut have since been told that ASOS are looking into it.
I understand that it could be the work of one designer faker within ASOS who is stealing designs and trying to make themselves look good, but it really just makes the whole company look bad. If this is the case then the faker in question should be named, shamed and then fired. We will update this story with more details as the situation unfolds.
Top Jeweller Vs Topshop
AttorneyAnnieCommentary:
Jewelry and accessories are considered "useful articles" in copyright law, meaning they're not just works of art and have some utilitarian or functional purpose as well. Rings, for example, are to be worn on your hand as adornment. The only part of such useful articles that are protected by copyright are the "nonuseful" parts. Stuff like carvings and intricate design work may be copyrightable if they can be identified separately and can exist independently of the object's utilitarian aspects. This is known in copyright law as the separability doctrine. Below is a great example from a YTWWN reader. The ring itself is a noncopyrightable useful article, but what about the intricate markings on the band and the cushion of the gem?
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FLATTERED or OUTRAGED?! William Llewellyn Griffiths the creator behind Australian jewellery brand Metal Couture has been making intricate pieces of jewellery for over thirty years, it seems however that he has a fan in Topshop's 'design team.' You be the judge....
Topshop's Cleopatra Box Ring
William Llewellyn Griffiths
Metal Couture Jewellery's
Topaz Locking Ring
Mi Gente Clothing (Repeat offender)
AttorneyAnnieCommentary:
Dear YTWWN readers, I work with AttorneyScott and I'll be helping out with some lawyerly commentary on these tricky copyright issues over the next few days. For instance, the oh-so-specific "look and feel" test for substantially similar designs comes to mind. Below is a good example. Riccardo Tisci's depiction of Kanye and Jay-Z as beastly, fanged creatures for their Watch the Throne Givenchy t-shirts is a pretty awesome idea. But does it mean no other celebrity can be depicted as a fanged werewolf-like beast on a black t-shirt ever again? Did Mi Gente just recreate the idea by giving Lebron some fangs on his MVP shirt, to portray that he's an unstoppable beast on the court? Or did they go too far and copy the expression--the "look and feel"--of the Givenchy t-shirt?
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Notorious rip off artist Mi Gente Clothing is at it again. This time they took the Watch the Throne Givenchy designed t-shirt and applied it to Lebron James MVP shirt. MGC should stand for More Givenchy Copies.
Steelers Tee shirt Makers Steal idea from street artist iwillnot
AttorneyScott Commentary:
Adopting a time-worn concept and flipping it in a new and creative way results in new and innovative art. Below, two artists have adopted the phonetic spelling conceit used in dictionaries to create a couple of pieces of art. What, if anything, has been stolen here?
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Dear YTWWN:
This campaign was started by street artist "iwillnot" to get the word "Re-fu-tard" added to the dictionary to mean Sara Palin. The idea and design was stolen by the tee shirt company below to use the football players name "Pol a ma lud" added to the dictionary with the accompanying definition.
Font is the same, concept the same, half face is the same just showing eyes, design with text below face centered.
the refutard campaign has been running for years on street stickers and posters.
www.flickr.com/people/iwillnot/
Street Art Sticker/poster/painting
Stolen Idea
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?