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])

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Dear YTWWN:

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:

http://www.gus-trans.de

http://berkeleyhalf.com

http://www.florisvoorveld.com

https://www.facebook.com/BerkeleyHalfMarathon

http://revawear.com/collections/berkeley-hm

https://web.archive.org/web/20101020131646/http://www.gus-trans.de/en/


A Straight Shot of Misappropriation

LifesShort-graphic

ATTORNEYSCOTT COMMENTARY:

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])

***

Dear YTWWN:

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: http://www.frontlineshop.com/revolution-men/

Produced by:

RVLT/revolution

(est. 1996 )

Designer: Christian Katballe

Aarhus, Denmark

http://rvlt.com/

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

http://www.dudes-factory.com/world_dollar/thedudes-miniflask-0103000924.html

See below for a side-by-side comparison:

 

A Kiwi Kopy?

ATTORNEYSCOTT COMMENTARY:

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.

***

Dear YTWWN:

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 (http://www.thewarehouse.co.nz). She recognized the print as mine, and emailed me just in case I hadn’t given the manufacturer, The Underwear Club (http://www.theunderwearclub.co.nz), 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. 


Animal Style: Infringement isn’t Foxy

ATTORNEYSCOTT COMMENTARY:

Etsy, Zazzle, Cafe Press and the like have been a boon to aspiring designers who want a low barrier, affordable way to market their works. But, this low barrier also allows the less savory denizens of the internet – the knock-off artists – to easily sell their shady wares. Below appears to be one such instance.

-AttorneyScott ([email protected])

***

Dear YTWWN:

Hi there! Long-time listener, first-time caller. After reading the latest updates on YTWWN, I decided to look into the misuse of my more popular designs. Lo and behold, I found that a Zazzle user named Mattjkruse has been selling one of my geometric fox designs that I had, stupidly, posted without a watermark.

I know from YTWWN that a low-poly geometric animal is not an original concept by any means. But, this is not a case of someone being heavily inspired by a design; this is someone basically downloading my design and uploading it to their storefront.

Here is my artwork: http://bethnaeyaert.com/index.php/2014/05/25/geometric-fox/

And, here is his page o’ knock-offs:

As you can see, he didn’t stop with one item, but went all out, slapping my artwork on hats and plates and so on.

Thanks for listening.

Don’t Cry for Me, Brandy Melville

ATTORNEYSCOTT COMMENTARY:

Here at YTWWN we get a number of questions regarding the ins and outs of “format-shifting.”

Format-shifting refers to converting a work that was created in one medium (such as a painting on canvas) into a related or unrelated, but different, type of media (t-shirts, key chains, sculptures). By and large, one is not allowed to format-shift a work without the consent of the original author. Ladies goods purveyor Brandy Melville may have missed this memo. See below.

-AttorneyScott ([email protected])

***

Dear YTWWN:

It looks like Brandy Melville has knocked off the artist known as Brain Foetus. You may be familiar with her naturalistic, pen on paper work. We’ve heard that Brandy Melville has made a habit of copying from emerging artists, and Brain Foetus looks to be the most recent.

Here, Brandy Melville’s “Elin Moon Tears Embroidery Top,” a popular item that has been seen on a number of celebs like  Ariana Grande and Mia Pia Perez, bears a design that looks to be a direct copy of a Brain Foetus piece.

The top, which is available in many stores across 10 or so countries, bears the same motifs and expression as the art of Brain Foetus, based out of Tasmania, Australia.

Brain Foetus tried to contact Brandy Melville to get the scoop on this rip-off, but was given the run-around. A sad day for Brandy Melville, wantonly profiting off the talent and spirit of the creative community. Below you will find the top sold by Brandy Melville, and a comparison of the Brandy Melville design with the Brain Foetus piece.

BRANDY MELVILLE TOP

COMPARISON OF BRAIN FOETUS PIECE WITH BRANDY MELVILLE TOP

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