The Right to Reproduce and Prepare Derivative Works



One exclusive right granted to artists is the exclusive right to make copies of their work, and to create derivative works based on their work. See 17 USC 106(1)-(2).

This right can be construed very literally by the Courts. That is to say, if a third party creates a single copy of the artist’s work, an action for infringement may well lie. Below we have a case of an artist who may have engaged in such copying.

-ATTORNEYSCOTT ([email protected])



I was reviewing SUBREAL’s portfolio and couldnt’ help but notice these blatant copies. He is apparently a professional artist and shold really know better. See below for the two copies I noticed before I became too ill to further browse “his” work.

- Reader

Images below:



Today’s post, submitted by an eagle-eyed reader from across the pond, raises the interesting issue of artwork depicting naturally-occurring flora or fauna (in this case, fauna, or animals).

Clearly, an artist is not allowed to preclude others from copying the basic elements of an animal: the fact that it has antlers, or hooves, or a particularly- shaped head. But, an artist is allowed protection over its creative additions to the animal, such as the specific way it’s parts are depicted, the manner in which it is posed, and so on. Below is one such animal, and a potential lift. Take a look.

-AttorneyScott ([email protected])



I spotted a flyer for UK festival ‘Camp Bestival’ last weekend, and the motif of the tiger balancing on the ball looked very familiar. It seems to derive from Hubert Hilscher’s 1970s poster, advertising Poland’s state circus.

I wasn’t impressed at Camp Bestival – their version isn’t even very nice.

See below for the comparison:

When Copyright and Trademark Law Collide, Things Get Furry

AttorneyScott Commentary:

Copyright law and trademark law are two different branches of the intellectual property tree. The key distinction between the two is the type of protection afforded, and who the laws seek to protect. Copyright law protects artists from having their artwork used without permission. Trademark law protects consumers from buying products that do not originate from the understood source, and companies from competitors trying to trade off their goodwill. In other words, if a consumer buys shoes with SWOOSHES on them, the consumer should be able to rest assured that they came from Nike.

Sometimes, though, a work will be covered by both of these wonderful regimes. That is, a trademark, meant to  protect the consumer, will be artistic and creative enough to also enjoy copyright protection. We may see such a work below.

And this work, the evidence seems to show, was swiped by those endorphin-loving running men (and women) up in Berkeley. Such an infringement would surely give paws to any artist. Independent creation could also be afoot, though, so we will have to grin and bear it for the time being.

-AttorneyScott ([email protected])



Since at least 2010, Gus Trans has been using the below-pictured (and adorable) bear as its logo, designed by Flooris Voorveld. Sadly, it appears that The Berkeley Half Marathon is now using an identical logo for their event and merchandise. Pretty blatant.



Additional evidence can be found below:

A Straight Shot of Misappropriation



More world-wide flair in today’s installment. A Danish company has apparently knocked off a German artist by lifting typography from the German’s flask design. Were this a U.S. case, the original artist would have little recourse, as the U.S. Copyright Act currently offers no protection for fonts and typography, which it considers to be utilitarian and not artistic. This is the case regardless of whether it is a standard font or an elaborate graffiti work. See below for the font-y tomfoolery.

-AttorneyScott ([email protected])



As a designer I really enjoy your blog. I thought I’d share a knock-off that I recently came across.

This t-shirt found on:

Produced by:


(est. 1996 )

Designer: Christian Katballe

Aarhus, Denmark

Appears to be a direct copy from The Dudes’ mini-flask design:

See below for a side-by-side comparison:


A Kiwi Kopy?


Nowadays, an art thief can pop up anywhere, at any time, even half-way across the world, where Hobbits are known to roam (or so movies have led me to believe). An artist writes in to express her dismay that a New Zealand company has swooped in on her art, copied it, and slapped it on a collection of bras to be sold all across the sweeping lands of NZ.

The U.S. Copyright Act, though, applies only to domestic infringement. This means that we can only pursue claims against infringers who committed acts of infringement in the U.S. (or, potentially, directed out-of-country infringement from within the U.S.). So, a New Zealand design thief would have to be pursued under New Zealand law in New Zealand. I hear it’s beautiful this time of year (or, most any time of year, really).

-AttorneyScott ([email protected])


UPDATE: The artist and The Warehouse have amicably resolved this matter.



Thanks so much for the opportunity to share this with you.

A fan of my work who lives in New Zealand recently sent me a photo of a bra she had seen in a store called The Warehouse ( She recognized the print as mine, and emailed me just in case I hadn’t given the manufacturer, The Underwear Club (, the rights to use it. I had not; in fact, I had never heard of either company until reading her email.

There were some slight alterations made to the pattern: directions of the arrows alternate by row; any overlapping on the sides of the arrows has been removed, most likely because it could not be repeated successfully with those overlaps in place; only a small portion of the original design repeats, probably because they could not steal a complete image; and the size of the arrows is much smaller, which could be a direct result of having stolen a low-resolution image or screen shot, and then reducing it down to increase the resolution. But it is clearly my pattern and my colors.

Below is my original design:

Here is the Warehouse bra:

And here is a comparison of the designs:


I have attempted to contact the company to get to the bottom of this, but my attempts to contact them have not produced any response, so I am led to believe they knew what they were doing during the design process. This is clearly an “international incident” of infringement. 

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