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Ian Art

Jazz Hands!

ATTORNEYSCOTT COMMENTARY:

Today’s post reflects the long arms of today’s infringer. I picture an octopus-like creature whose tentacles encircle the globe, suctioning on to an artist’s work, and then whipping said work back into its gloomy lair. This time ’round, the alleged thievery comes from Jakarta, where a need arose for a compelling piece of art to advertise the local jazz festival. Designer Ian Austin’s Deviant Art page, at the time, exhibited the below imagery:

Ian Art

 

 

Later, Jakarta’s Jazz Festival released its advertising materials, which included the following:

Java Copy

 

Is this a jacking by Jakarta, or independent creation?

- AttorneyScott ( scott@copyrightLA.com )

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
jayde

Cat’s Out of the Bag

ATTORNEYSCOTT COMMENTARY:

A tale of two cats, sovaldi sale or four to be more precise. Designer Jayde Hilliard created a series of pieces she entitled, decease “Blue Willow Menagerie” that depicted animals embellished with the public domain Blue Willow pattern. Pleased with her work, sales she posted it on Deviant art, where it can be seen below:

jayde

 

To her chagrin, the cat aficionados over at Bradford Exchange thereafter posted a product that bore a certain resemblance to her prior work. See below:

bradford

 

Comparing the pieces, though, reveals a close call as to the question of whether the idea was taken (still legal, recall that ideas are “as free as the air,” according to at least one judge), or if the expression was lifted (a violation of the Copyright Act). At the very least, it is a dispute that gives us paws.

-AttorneyScott / scott@copyrightLA.com

Posted by AttorneyScott  |  1 Comment  |  in Uncategorized

Nasty Gal with a Thefty “Oops!”

ATTORNEYSCOTT COMMENTARY:

From the “too good not to share” department: Taylor Swift wore an original Balmain design to some music industry awards event. Nasty Gal, who sells an “inspired” knock-off of this particular Balmain piece, posts that Swift is wearing “their” dress. Basically, Nasty Gal’s copy was so close to the original Balmain that even Nasty Gal couldn’t tell them apart. Of course, this is all perfectly legal in the United States (for now: link). And, this could be some very sneaky viral marketing, so reader beware:

http://qz.com/407655/awkward-a-fashion-label-boasts-about-taylor-swifts-outfit-then-realizes-its-own-design-is-a-knockoff/

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
Zietz

A Walk in the Park

ATTORNEYSCOTT COMMENTARY:

Today’s installment looks at a call that is closer than most. As our readers know, an idea is not protectable, but one’s expression of an idea (as “fixed” in a tangible medium, in other words, written or drawn) is as protectable as the day is long. Did Target/Wrangler nab the artist’s expression here, or only his idea? To make matters more interesting, remember that an original combination of basic elements can be protectable even if the basic elements are not.

-Attorney Scott (scott@copyrightLA.com)

***

Dear YTWWN:

Wrangler is selling a rip of artist Ross Zietz’s work. He posted it on threadless some time back and now Target is selling the Wrangler rip. Take a look:

Zietz:

Zietz

Wrangler/Target:

22

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
YTWWN_Metal

Enter Lawman?

ATTORNEYSCOTT COMMENTARY:

Metallica, those icons of RAWK, have unleashed some brand new merch in support of their recent club tour. That merch, though, struck one reader as looking a tad too similar to his own artwork, which, coincidentally, he had submitted to Metallica through its merch agent, Tinman, for potential, compensated use. They apparently liked the artwork to a certain extent, but not enough to engage the artist, so they had someone else “interpret” the artist’s submission. Recall that one of an artist’s exclusive rights is the right to create “derivative” works, and to stop others from using your artwork as a basis for another work without your permission. But, the line delineating derivative works can be tough to draw with certainty.

Nowadays, revenues from merch are one of the primary sources of income for many rock ‘n’ rollers, and the artwork may drive sales as much or more than the band’s name. Is the below “interpretation” a fair and independent creation, or one where the “interpreting” designer sought and destroyed the original artist’s rights?

Below left is the artist’s original work, below right is the artwork used by Metallica.

-AttorneyScott (scott@copyrightLA.com)

***

YTWWN_Metal

Posted by AttorneyScott  |  2 Comments  |  in Uncategorized
AnneWasHere_SchuhSandals

A Dog-gone Copy?

ATTORNEYSCOTT COMMENTARY:

Today’s installment comes from across the pond. A UK retailer, Schuh, has apparently drawn from the artwork of ANNE was HERE to decorate its new slide sandals. The idea of putting a cute l’il pup on a sandal is not protectable, and anyone who wants to draw a dog can draw a dog and not run afoul of the law. But, ANNE was HERE’s artistic expression, her depiction of a dog, is protectable, and as such cannot be lawfully used by another without her permission. Did Schuh cross the line?

-Attorney Scott (scott@copyrightLA.com)

***

COMPARISON OF ORIGINAL AND SCHUH VERSION:

AnneWasHere_SchuhSandals

Posted by AttorneyScott  |  2 Comments  |  in Uncategorized
sg1

Known Displeasure

ATTORNEYSCOTT COMMENTARY:

If you create a derivative work based on the work of another, you will not be entitled to any rights in the underlying work, though you may claim rights in what you add to the work. This addition must be in and of itself protectable (i.e., created by you and possessed of sufficient originality).

See below for an allegation that there’s something rotten in Texas, and it’s not the Frito pie (this time).

-ATTORNEYSCOTT (scott@copyrightLA.com)

***

Dear YTWWN,

Fine Southern Gentlemen screen prints and designs custom goods in Austin, TX. One of FSG’s designs garnered popularity via celebrity social media endorsements and a recent late night television appearance. FSG replaced the pulsars featured on Joy Division’s “Unknown Pleasures” album artwork with many overlapping and intertwined Texas shapes. Dubbed “Southern Pleasures,” the design is consistent with FSG’s southern aesthetic and local reputation. Skreened.com (what appears to be an outlet for serial infringers) is offering a complete knock-off shirt boasting the name “Southern Pleasure.” A quick look at the accredited artist will lead you straight to Curtis Eichelberger d/b/a “Curtshirt.com” and his related social media sites. As though this would excuse him from thievery, Curt slightly modified the FSG design. But prior to changing the design slightly, Curt made Instagram posts of what can only be a picture of FSG’s design. Curt thought we wouldn’t notice.

Check out FSG’s original design here: http://www.finesoutherngentlemen.com/store/southernpleasures

Check out the knock-off for sale here: http://skreened.com/curtshirt/texas-division

THE ORIGINAL:

sg1

AN OVERLAP OF THE ORIGINAL AND CURTSHIRT’S POST:

sg2

 

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
dd

A Complete Rip?

ATTORNEYSCOTT COMMENTARY:

If your work shows up on a product sold by somebody else, what do you do? First, call a lawyer, duh. And do not sign anything that anyone puts in front of you until you do.

-ATTORNEYSCOTT (scott@donigerlawfirm.com).

***

Dear YTWWN

Memoirs.com has clearly taken the very cool work of Kyle Theobald (http://www.creativecenter.edu/portfolios/Theobald_Kyle/) and made shirts that they’re selling online. See below for the obvious copying.

-Reader
***

Completely Illegal!

Original Work by Theobald:

 

dd5

Memoirs.com Copy:

Memoirs.com Copy

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
ko2

When a Line Becomes a Squiggle – Derivative vs. Transformative

ATTORNEYSCOTT COMMENTARY:

One area of copyright law just about everybody gets mixed up is the weird overlap between “transformative use” and “derivative works.” This one is a bit complicated, so let’s start at the beginning, with our ol’ pal the Copyright Act.

The Copyright Act protects artists by giving them a bunch of exclusive rights in the works they create. See 17 USC 106. Most of them are obvious – such as you can’t sell products with my art on them without my permission; but some of them are not – such as you can’t create a work based on my work without my permission. The first right (i.e., the distribution right) is easy to untangle. The second right (i.e., the derivative work right) is not.

Consider the Prince. In Cariou v. Prince, a a photographer sued an “appropriation” artist who basically printed a couple of dozen of the photographer’s photos and then and doodled over them with some blue paint. After doing so, he was all like, “Hey, I created a new work.” He got sued, and the district court said, “No chance, you created an unlawful derivative work.”

Amazingly, though, the appeals court reversed the district court, finding that most of the doodled-on photographs were protected by the “fair use” doctrine because they represented a “transformative” (read: greatly changed) use. This ruling was most likely wrong, and has been heavily criticized. It’s wrong because it is pretty clear that the doodled-on photographs were derivative of the photographs and thus violative of the artist’s exclusive right to create derivative works from his own artwork.

But, it certainly underscores a tension between (a) the exclusive right of an artist to create new works based on their prior works, and (b) the lawful “transformative” use whereby a second person “transforms” an underlying work to create a “new” and legal work.

That tension is apparent in today’s submission. Are these works unlawful derivative works (because they are based on an underlying work) or are they lawful “transformative” works because so much new expression and value has been added?

-ATTORNEYSCOTT COMMENTARY (scott@copyrightLA.com)

***
Dear YTWWN:

An artist set up a Kickstarter to fund his sale of his knock-off art. He is trying to sell both clothing and prints bearing artwork that is copied from pre-existing work. He simply makes the straight lines squiggly and tries to pass it off others’ work as his own. His Kickstarter (now cancelled) shows the multiple copies. There are more where this came from, but below are .GIFs of some representative examples.

- Reader

***

KNOCK-OFF GIF PARTY!
ko2ko3

Posted by AttorneyScott  |  0 Comment  |  in Uncategorized
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