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])

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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])

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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

Underhanded Dealings Down Under?

ATTORNEYSCOTT COMMENTARY

Collage-style or composite works usually present a host of copyright issues. Each element in the collage or composite, to the extent the element is an original work, will be subject to a copyright claim by the owner of the element. The collage or composite makers’ copyright would extend only to the creative way in which the elements are arranged or juxtaposed. Below you will find art that appears to combine pre-existing material to create a “new” work. What is original? What is protected?

-AttorneyScott (scott@copyrightL[email protected])

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Dear YTWWN:

Michael Rogers from Melbourne, Australia takes promotional images and retools them to make prints of television shows and movies and sells them as prints. His stuff got my attention when he apparently lifted  images by Shepard Fairey and Joshua M. Smith. It looks like he cut and pasted, then added a few elements around the paste jobs. Ironically, he then affixes a copyright watermark to his “new” works of art. The Great Gatsby frame with Game of Thrones animal images are the most shameless, and he seems to justify his lifting by saying Joshua M Smith has a similar style to noted Mondo artist Ken Taylor here- http://tinyurl.com/nxz3srf. This appears to be  just a few of the works he has knocked off.  See below:

 

Anatomy of an Infringement?

ATTORNEYSCOTT COMMENTARY

We often get inquiries here at YTWWN regarding the bright line between one artist using another artist’s idea (generally legal!) and one artist using another’s expression of that idea (generally illegal!). Spoiler alert: there is no bright line! Only a fact-intensive analysis and comparison will provide a bit of clarity, and even that is subject to a judge’s (or jury’s) review.

If you were to go to trial in California (my local district) on this issue, the judge would tell the jury the following in connection with this idea/expression dichotomy:

“Copyright law allows the author of an original work to prevent others from copying the way or form the author used to express the ideas in the author’s work. Only the particular expression of an idea can be copyrighted. Copyright law does not give the author the right to prevent others from copying or using the underlying ideas contained in the work, such as any procedures, processes, systems, methods of operation, concepts, principles or discoveries.

The right to exclude others from copying extends only to how the author expressed the ideas in the copyrighted work. The copyright is not violated when someone uses an idea from a copyrighted work, as long as the particular expression of that idea in the work is not copied.”

See 9th Cir. Model Jury Instruction No. 17.3

The above is a mouthful, to be sure. But, in essence, it is saying that an idea is free to use while someone’s unique expression of that idea is protected.

This explains why one person using another’s content in a way that clearly takes the original idea (and would thus be what is known colloquially as a “rip-off,” depending on your definition of the term) may not be a violation of the Copyright Act.

Below we have an example of the interplay between idea and expression. Verdict?

- AttorneyScott ([email protected])

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Dear YTWWN:

It looks like Quiksilver has again ripped off another clothing brand. See below:

 

Who Ya Gonna Call?

ATTORNEYSCOTT COMMENTARY:

Parody art, especially when used on apparel or other products, presents a particular sticky set of legal issues. Technically, art of this nature is what’s known in legal circles as “derivative works,” meaning new art that is created from, or incorporates, pre-existing creative material or intellectual property. Notably, the right to create a derivative work is one of the bundle of rights that is exclusive to the owner of the underlying art. But, an artist is entitled to seek protection for the creative material that is added to the underlying art (as opposed to the whole piece).

Trademark issues are also implicated to the extent the use of the material being parodied will create consumer confusion as to whether the parodied party approved or sponsored the parody product.

Today’s entry is an interesting dispute in this realm. Don’t get slimed!

-AttorneyScott ([email protected])

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Dear YTWWN:

Parody logo t-shirts are big business these days.

What About Yves has knowingly stolen House of Diehl’s Chanel x Ghostbusters design, and is selling it to major retailers worldwide.

House of Diehl is a longstanding NYC-based fashion-art organization who has been featured in the New York Times, The LA Times, and the London Times, and has been exhibited at the Museum of Modern Art, MA, The Museum of the City of New York, and with Creative Time. Some press:

http://www.houseofdiehl.com/pressmenu.html

House of Diehl’s Chanel x Ghostbusters design has been offered for sale since 2011:

http://www.houseofdiehl.com/cgi/store/checkout.pl

The House of Diehl t-shirt appeared in the New York Times on Dec 12, 2013, attributed to House of Diehl

http://www.nytimes.com/2013/12/12/fashion/fashion-logo-parodies-tshirts-strictly-tongue-in-chic.html

What About Yves then “launched” their identical Ghostbusters design in January 2014.

A comparison of the products are below:


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