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Coasting Along on the Hard Work of Others

ATTORNEY SCOTT COMMENTARY / scott@copyrightLA.com:

The coaster game is a rugged one, and competitors are not above borrowing artwork that it thinks will lead to an advantage in obtaining more of that sweet, sweet, drink placement dough. Below appears to be one example of a company going a bit too far. From a legal perspective, it is important to remember that short phrases are often not protectable by copyright, and the same goes for basic shapes. But, the creative selection and arrangement of otherwise unprotectable elements can lead to copyright protection. Compare the works at issue here (click to enlarge):

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Tongue Thai-d

ATTORNEY SCOTT COMMENTARY:

Thailand-based garment company Wear We Met was apparently taken with RIPNDIP’s cheeky kitty artwork and decided to play a game of cat’s-got-your-copyright. Evidence is below (WWM on top/ RIPNDIP below):

-AttorneyScott / scott@copyrightLA.com

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Rue the Day!

ATTORNEYSCOTT COMMENTARY:

Shifting content from one form to another does not allow you to use that content without permission. And making small changes to another’s design does not allow you to evade liability for copying. Rue 21 apparently did not receive these particular memos, as they have lifted Valfre’s popular “Boy’s Tears” design to create a pair of earbuds. The details are below (click to enlarge):

- AttorneyScott / scott@copyrightLA.com

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suga3

TOPSHOP / KUCCIA’S OUTRAGEOUS ART RIP

ATTORNEYSCOTT COMMENTARY:

An artist earns a copyright the moment he or she fixes their particular method of expression in a tangible medium. In other words, once you paint it, draw it, sculpt it, or otherwise create it, you have copyrights in it.

US Copyright Office registration is nice, and has all sorts of benefits, as we will discuss in a future post, but a lack of such a registration does not in any way denude an artist of his or her rights. Perhaps TopShop and Kuccia, the parties responsible for the below rip of original art by Sugar Bones (her real art), were unaware of how copyrights accrued, or maybe just thought we wouldn’t notice.

But, here we are, another fast fashion company playing fast and loose with an artist’s intellectual property rights. A comp of the TopShop / Kuccia garment and Sugar Bones’ artwork is below (click for detail):

- ATTORNEYSCOTT / scott@copyrightLA.com

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orig

Killa Bart Art Snatched by Ruvilla

ATTORNEYSCOTT COMMENTARY:

(contactable at: scott@copyrightLA.com)

When artist Chas Truslow developed his killa twist on the well-known Bart Simpson character, he had no idea it would go viral. But it did, in a major way, with fans going so far as having the artwork tattooed on their bodies. And as the online popularity increased so did the artwork’s appeal to companies that trade in knock-offs.

Ruvilla, an East Coast retail chain, swiped Truslow’s artwork and plastered it on shirts that it marketed and sold to its customers. Morally, this is obviously outrageous, but is it also a violation of the Copyright Act? To address this query, we have to delve into the sphere of derivative works, one of the Act’s more tricky little crannies. Let’s start with the statute, shall we? It says: “a work based upon one or more pre-existing works, such as a[n] … art reproduction … or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work[,]” and subject to protection. So, Truslow’s work, which recasts the Bart character (yes, characters are subject to copyright) as a pink-robe wearing, cell-phone hustling player in the style of a certain Harlem-bred hip hop artist, and is an original rendering drawn by Truslow, most likely qualifies as a derivative work subject to protection.

How far this protection ranges is a more nuanced question. The Copyright Act provides guidance here as well: “the copyright in a derivative work “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.”” Taking the statute at face value, as we must, teaches that Truslow is entitled not to a copyright in the Bart character but to what he has added – the coat, hat, phone, and other additions drawn by him. While this copyright protection may not be robust, it would most likely allow him to bring a case against somebody that copied the artwork, especially if Fox and Matt Groening got onboard. Has that situation arisen? Below, top, is Truslow’s artwork. Below, bottom, is a garment marketed for sale by Ruvila:


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kohls rip

Dog-gone it, Kohls!

ATTORNEYSCOTT COMMENTARY:

When it comes to artwork depicting animals, courts have to weigh the public’s ability to draw the common features of an animal – the big ears of an elephant, the long neck of a giraffe – against an artist’s rights in her particular depiction of those features. It is the stylistic additions to the common tropes or general features of the animals that are protectable. Here, we have a case involving the apparent taking of an artist’s expression in regard to her adorable depiction of cutesy canines. On the right you will find her images; on the left you will find the apparent rip. While the artist certainly does not have a monopoly on drawing dogs, she absolutely has a right to protect her particular expression as seen below (click on image to see artwork in detail).

- ATTORNEYSCOTT (scott@copyrightLA.com)

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Francesca's Infringement

Francesca’s is Very Hungry – Bites Styles of Many

ATTORNEYSCOTT COMMENTARY:

Today’s post details what appears to be a massive infringement by mass-market retailer Francesca’s. Many an artist have had their designs lifted, it would seem. And, Francesca’s did not think these artists would notice? Click the below image to see all the horrifying details up-close (if you dare).

-AttorneyScott (scott@copyrightLA.com)
***

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HM

Another Body Blow to an Indie Designer?

ATTORNEY SCOTT COMMENTARY:

As our readers know, the silhouette of a garment or piece of clothing does not enjoy copyright protection in the United States (though it does elsewhere). So, copyists have long kept their beady little eyes on the work of edgier indie designers in attempts to find and copy styles that they think will appeal to the market. Recently, though, a thoughtful and thorough court decision issued by the 6th Circuit Court of Appeals provided a ray of hope for designers whose works are copied. In that case, Varsity Brands sued a copyist for copying not the silhouette but the color blocking and decorative designs on a series of cheerleader uniforms. The Appeals Court found that the Varsity Brands’ designs, original in their own right, deserved protection, reversing a lower court’s decision that found no protection for the designs.

Below, we have an example that may or may not fall within the purview of the Varsity Brands decision. H&M, known to bargain-hunters and fans of all things Swedish as a fast-fashion purveyor, recently began marketing the below item:

This item brought to mind, for some, a previously-released design by the boutique label Untitled & Co.:

While the silhouettes are similar, incorporating the classic boxer aesthetic, and both garments are labeled with an UN-word and both garments include similar banding, it is a close question as to whether this case would be a knock-out in Court.

-ATTORNEYSCOTT (scott@copyrightLA.com)

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Someone’s got a bone to pick with Hot Topic.

ATTORNEYSCOTT COMMENTARY:

The oft-cited but 100% incorrect “rule of thumb” that many in the artistic community espouse on a daily basis – if you change a design 30%, it’s yours to use as you wish – appears to have struck again. Hot Topic is selling shirts that appear to bear artwork that is a slavish but superficially modified version of an original design by Southern California’s Love Made brand. It is important to note that the modifications do nothing to add any artistic or aesthetic value; instead, they appear to be the result of inartful copying. This case is currently pending in Federal Court in Los Angeles.

- AttorneyScott / scott@copyrightLA.com

IMAGERY:

LOVE MADE ART:

lm

HOT TOPIC ART:

ko

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SBD

Birds of a Feather, Do What Now?

ATTORNEYSCOTT COMMENTARY:

An artist is afforded protection for the original elements she creates, and is also afforded protection for the creative decisions made in selecting, arranging, and depicting each of the elements. So, if you spy an artwork made of multiple elements, and you fancy that artwork, you will not be in good shape (legally) if you attempt to swap out each of the elements of the artwork with new, similar elements that you have found or even created.

This is because the artist’s protection in the original work extends past the elements to their selection and arrangement. Below, we see two works art, one of which looks to have been created through the employment of some creative swapping.

- AttorneyScott / scott@copyrightLA.com

***

Dear YTWWN:

StrangeBirdDesigns created this lovely work of collage and original expression, which it offered to its clients and customers:

SBD

Later, it discovered that those art framers at Michaels were offering something that StrangeBird must have thought looked a lot familiar:

M

To me, it looks far too close for comfort.

-A Reader

 

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  • What is this place?

    YTWWN is a blog where users have taken notice to a blatant rip off of a creative work, and shared it with us. Sharing and discussing the observations and casualties of improper use of creative property is what we're all about here.

    This is an open blog, so please, add to and join the discussion, but keep in mind that there is a fine line between a rip-off and similarity of ideas. Please read the 'About' page before posting.

    Please use some discretion before posting to help us keep this blog legitimate.

    We look forward to seeing what you have to share.