Below is a ghoulishly good example of the expression-idea dichotomy that we so often discuss here at YTWWN. As our readers know, ideas, as one judge so aptly put it, are "as free as the air." The expression of a particular idea, though, is subject to protection under the Copyright Act. Below we have two sets of stockings that both depict ghastly flesh wounds. Has Hot Topic taken more than the idea here, or have they crossed the line and taken the expression?
This case is made more interesting by the clear evidence of access. In many cases, it is difficult to prove that the alleged infringer actually got their hands on the allegedly infringed material; but, here, it's clear: the alleged infringer bought a pair directly from the source. This would trigger what is known as the "inverse-ratio" rule, which requires a lesser showing of substantial similarity to prove infringement.
So, feast your peepers on the two sets of stockings below and answer this question: theft of the idea or theft of expression? And, does the "inverse-ratio" rule affect your decision?
- Scott A. Burroughs, Esq. ([email protected])
I have been selling "Gartered Legs Prosthetics" since 2011 through my company OpenWound FX and I have been creating these prosthetics as a freelance artist since 2008. The Gartered Legs Prosthetics product is very popular and has seen a lot of online media coverage in the past year. The OpenWound FX website is www.openwoundfx.com and the shop is on Etsy at http://shop.openwoundfx.com. Hot Topic ordered a pair of Gartered Legs Prosthetics "as inspiration of new product" in March 2012 and released a very similar "Lesion Thigh Highs" product in September 2012.
On March 2nd, this year, someone named Cindy Mesa ordered a pair of Gartered Legs Prosthetics and I recognized the City of Industry, CA shipping address and checked her name. Based on a linkedin.com profile for a Cindy Mesa of Hot Topic, she is an Assistant buyer for the retail company Hot Topic.
On March 6th, 2012 I sent Cindy the following email:
My name is Meaghan O'Keefe and I am the owner and creator of OpenWound FX. I see that you have ordered a pair of the Gartered Legs Prosthetics. Thank you for your interest! Is Hot Topic looking to stock Gartered Legs?
If so, I'd love to discuss the details with you.
On March 7th, 2012, Cindy responded with the following (there was no non-disclosure agreement or confidentiality note on the bottom of this email)
Thanks for reaching out to me. I actually just took over the department Monday was officially my first day. We are currently in development with a company who is making thigh high fishnets that have similar prosthetics attached to them. I ordered your as inspiration of new product I wanted to bring to the table only to find out we were already doing something similar. I am not sure if your prosthetics would be right for our customer since it requires a little more TLC to apply. Once I receive the product and take a close look we can definitely talk about if this is actually something we could carry. I will keep in touch.
The Nicest Person In the World
Beauty & Halloween
I sent Cindy the package with a return receipt and a letter in which I offered to work with Hot Topic on a product using my design and voiced my concerns about them making a similar product based on mine without my involvement. I never received a response.
In early September, I was sent an email by a Hot Topic employee who was aware of my company. She sent a photo of the very similar Hot Topic "Lesion Thigh Highs" product that had just been received by her store. Ever since I have received a constant stream of emails from people alerting me of this "similar" product. I have seen the product in person and it is made of the same material and is "eerily similar." Now that Halloween has passed, I would like to make people aware that Hot Topic's "inspiration of new product" appears to be the OpenWound FX Gartered Legs Prosthetics that they bought 6 months before releasing their "Lesion Thigh Highs."
I'm sure that The Gap has a totally awesome explanation for why this photo of mine, published under the Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0) license, is apparently being used by babyGap on the Grey Pumice version of the "Thermal body double" onesie (SKU #785589) and the 2-in-1 moto one-piece at gap.com.
So a while back I commissioned Monaux to do a design for my label Skeg. I got it printed a while back through Storenvy along with the rest of my line however I have a slight problem. You see when I sent the files over to the printer I received word from Storenvy that they had printed this design already with different a text (a clear rip). The only information I have is his mailing address and email.
I’ve contacted Monaux and he is unsure as to what to do as it’s quite difficult and costly to take someone to court over something like this. I already got my design printed as I still really wanted to print it, but what should I do about the guy who already printed 50 of his ripped design.
Below is the Skeg design and the rip.
Check this out;
This is a friend of mines street art which he gave me permission to turn into a t-shirt, I am the only person anywhere that has permission to use his concept.
The original design, featured all over the net and in Street Art Books.;
and my t-shirts;
And here is this rip off we found, not exact rip but he obviously got the idea from my friends work, I actually like the design, though for mine I stayed true to the original work. cafepress is a pain to get stuff pulled down...
A couple of years ago I was asked to write and illustrate a tongue-in-cheek Popular Science/Mechanics-style book on how to build bongs for San Francisco based publisher, Chronicle Books. I'm no authority on the subject. Far from it, actually. They approached me with the idea because I had done technical illustrations for them before (mostly knitting and crocheting), and I can build just about anything. The book is called, Build this Bong.
The book had been out about two years when I thought I'd do an internet search to see how it was doing. Imagine my surprise when I noticed that in amongst the thumbnails of the book's cover were images of a black t-shirt with illustrations from the book all over it!
The company that made the shirt is called Upper Playground. Ironically, I live just three blocks from their original store in San Francisco. It even says I'm an SF based artist in the back of the book. They made no attempt to get permission, however, from either myself or the publisher.
Upper Playground is an SF based clothing company, which also operates art galleries that show work from artists that are featured on the shirts they sell. They cater to the hip-hop/skater/graffiti art/420/urban-hipster community. The owner/founder, Matt Revelli, likes to pay lip service to supporting artists whenever he is interviewed. In one interview appearing on SFGate.com, he said, "We're selling the whole idea of this creative lifestyle and supporting creative people and having their ideas and concepts come to life in a different form." My work certainly came to life in a different form.
Upper Playground's revenues for 2007 were reported to be $10 million. In another interview, Matt Revelli was asked about his company's five year plan. His answer, " In five years, we’ll be a $25 million to $30 million company. We’re working on saving the music industry. That’s what makes America great, if we don’t find a way to compensate artists, it’s not going to be an innovator of that industry anymore." He could have easily compensated me for my art, but simply chose not to.
Every drawing that appears on the shirt was lifted directly from the book. All they did was paste a portion of their walrus logo over the image in the center.
"I scour used bookstores for inspiration and ideas...I come up with ideas or concepts and have our designers or freelance people that I work with execute the concept." Matt Revelli
Original NO RIVAL T-Shirt Design from Line Sheet | May 2008
Original NO RIVAL T-Shirt Design from Season 1 Photo Shoot
Counter-Balance T-Shirt Design Rip-Off Using the Image of Lucifer
Okay, so it is no big story that in the fashion business occasionally people take inspiration from celebrity, runway or vintage styles. Heck, we at Trashy Diva take all of our inspiration from retro looks. BUT, there is a clear difference between borrowing ideas from well worn vintage styles and BLATANT theft from an active small business.
First, let me set the stage for you if you don't know about Trashy Diva. We are in New Orleans and we have been in business here for going on 12 years. I am the owner and designer of the company. We are small and have an in house staff of between 6-12 depending on the season. We operate 3 local boutiques, a wholesale business, and the trashydiva.com website. Members of the Trashy Diva staff also work hard in creating their own projects from acting, arial performance, modeling, and supporting families. There are even also a few who lost everything in Hurricane Katrina and are still working to recover. We are all real people here. We are a staff of ladies that generally love our job and try our best everyday to make a contribution to the world with everything that we do. We make clothing because we are passionate about vintage style and original design. The Trashy Diva clothing line means that these people have jobs and get paid. We are the classic example of a small business. Sometimes I feel like we are super successful, but most of the time I (like most smaller independant designers) am just tring to keep a company running and pay all of our bills on time with honesty, integrity, and without harming anyone else's livelyhood.
Well, now that you know about us, let me tell you about what has happened to us. Yesterday, a customer brought in a photo of a dress (printed out from one of our regular wholesale customers UNIQUE-VINTAGE.COM.- Now, if you haven't heard of them, then no suprise. They are a generic non-offensive site, but not a site exploding with any original personality ). Anyway, this photo is of one of my dresses-but in a different color. The customer was wondering if we got some new colors instock in the popular "Trixie" dress. After a bit of investigation we find out that this website has actually taken one of our dresses to a factory and had the dress copied and is selling the dress as their design under their label on their website. WHAT!!?!
I have been continually manufacturing this ORIGINAL design since at least 2002! I have countless hours and dollars investing in the continual perfection of this dress pattern. The dress backstory should anyone question the origin: This dress was first made in approx 2002 in a silk 'ballerina print' in black and white. This first version was modeled after a vintage Alfred Shaheen style dress. It featured a removable strap skinny neck strap, a longer circle skirt, a bullet bra inner bust, a much drapier outerbust and all over different specs for the garment pieces. The dress was lovely, but has been reinvented from this vintage original dress and repatterened many times to get our now PERT short and sweet -modern busted-wide neck tie -shorter skirt version that has been adapted to fit a variety of heights through a rounded underbust/waist cut and even fuller circle skirt. I have hand drafted and adjusted this pattern with love up every season from 2002 until the summer of 2007 when our cotton dresses first appeared on the market. It is but a shaddow of our 2002 version (and of the vintage version) and has been uniquely our own for many years. This 2007 version is what I find shown and copied on this website. Not a Shaheen dress, not a Hawaiian style dress, not a new original that looked similar, not a misc. copy of a vintage style, but MY DRESS that I know backwards and forwards! Why did this greedy company copy my dress?
Well we asked, and we really didn't get much of a response. No denial. Actually, they seemed angry with us for even asking. How dare we!
Over the past year this online retailer has bought a lot of this dress style from Trashy Diva and apparently it sold really well for them. Obviously, they don't care about the designers that they represent or the uniqueness of the goods that they sell. Designers beware- apparently if they like your stuff and it sells well you'll see your designs with their brand name. I am sure that we are only the first of a long list of small vendors that will be exploited by this retailer.
We are not the real victims. Our customers are the ones who unknowingly are sold counterfiet and knock off copies of our goods-expecting quality- branded goods and getting fakes.
We appeal to all of our readers and those who are also in the industry to take a stand against those that exploit artists and creators. Unique Vintage is just not so 'unique' to us. Join us in expressing your disapproval for this theft and infringement by not supporting those like Unique-Vintage.com.
You can express any concerns about these copies by email directly to the company at: [email protected] or by phone at 1-800-721-6589. (These details are publically listed on their website)
If you want a FAKE COPY of one of my 'Trixie' dresses for double the price of an original, then shop unique-vintage.com (you can even use the details above to purchase one). If not, please purchase the Trixie Dress through the www.trashydiva.com website or an authorized Trashy Diva distributer.
We are also doing our part to end any confusion by pulling this dress style from our wholesale offerings and selling it directly to our retail customers for $34. We will continually manufacture this dress with the same Trashy Diva quality as before, but in the future it will only be available through Trashy Diva boutique and at www.trashydiva.com. We will be continually updating our colors and prints so that not only will we have originals for less than the cost of the fakes, but we will have an even greater selection available in the future.
THE ORIGINAL SCARVES. Designed by the late Gösta Olofsson during the late 1950s in Linsell, Härjedalen, Sweden.THE COPY. (De)signed by Marc Jacobs 2007Read all about it here
In 2006 I collaborated with PESQUEIRA TM, the clothing line of the talented argentinian designer Valeria Pesqueira.
Among other things I did their ad campaign (photography and art).
In the end 3 different photos were selected and used in posters, magazines, etc.
this was one of them:
…then, a few months ago we stumbled across this advertisement for (Latin American satellite TV channel) iSat’s newly acquired series : Sugar Rush 2. it’s been on street billboards, magazines and newspapers. The thing was perpetrated by some creative geniuses at in jaus .
Check out the details, because they took their time to put some things together.
..the funny part of this is that iSat pretends to be a transgressive, open minded, arty channel.
here we simply call people like this “ladris de mierda”.
Melbourne based fashion label miiif rip off banksy's bomb hug art work for tee design.