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: