INSIGHT – ‘Everyone’s copying’ – The fine line between copying and inspiration

How to avoid infringement and what to do if your work has been copied

 

“Everyone’s copying, why be so pissed?”

 

This was the excuse offered by a copyright infringer who thought that it was OK to rip off an artist’s work (and make money from the act) because she had tagged the artist in an Instagram post and wasn’t claiming that the image was hers.

 

 

This is just one of many examples of copyright infringement swirling around the internet, being fuelled by social media sites like Instagram and Pinterest.

 

There can be no doubt that the above example is blatant copyright theft, and anyone who says it’s not has been reading fake news, however sometimes the lines between copying and inspiration can be a little blurry.

 

In this article we speak with Lawyer Jessica Kerr of Sinclair + May and passionate copyright advocate Andrea Smith of My Creative Biz to try and unblurr the lines and find out how business owners can avoid copyright infringement when briefing creatives, plus provide tips on what creatives can do if they believe their copyright has been infringed.

 

Dripping with inspiration? Vlada Haggerty vs LVMH

One of the social media fuelled copyright stories doing the rounds this year has been Vlada Haggerty vs LVMH.

 

Haggerty is a US based photographer and make up artist who specialises in ‘distinctive dripping lip makeup’, while LVMH (you may know better as Louis Vuitton Moet Hennessey) is one of the world’s biggest luxury brand stables, no doubt dripping in profits.

 

 

Earlier this year Haggerty filed a copyright and trademark infringement lawsuit against LVMH and their brand Make Up For Ever (MUFE).

 

Haggerty had received multiple requests from MUFE representatives asking to use some of her dripping lip images for their marketing campaigns, even suggesting they could come to an agreement on a ‘work around’.

 

The artist had already signed an exclusive with a competing brand and said no.

 

MUFE went ahead and created their own version to use as a logo for their Lustrous Cosmetics line. The top two images below are Haggerty’s and the bottom one the new MUFE logo. ‘Inspired’ or copyright theft, what do you think?

 

 

In the lawsuit Haggerty argued that the MUFE image is so close to her own creations that it would give consumers the false impression that she was collaborating with the brand. After eight months of negotiations they settled out of court with Haggerty posting this statement on Instagram:

 

“As you all probably know, I have recently had a dispute with MUFE. Protecting my rights and the rights of artists is important to me, and I am happy to report we have reached a confidential resolution.”

 

MUFE then announced on its Instagram feed “The makeup art of the wonderful @vladamua was an inspiration for our Lustrous 2017 Holiday Special. We have reached a confidential resolution with her and look forward to her continued success.”

 

(read more about the case here).

 

The power of registered trademark

According to Jessica Kerr of legal practice Sinclair + May, Haggerty was able to successfully sue LVMH and gain the pre-trial settlement due to having registered the images of the dripping lips as a trademark, which meant that no one else could legally use those images to sell the same or similar products in the market.

 

In the US you need to have registered an image not only to gain financial restitution from trademark violation, but also for copyright breach. So while Haggerty may have been able to try and stop MUFE from using the image, she was only able to gain financial restitution because she had registered the image in the first place.

 

Would the settlement have occurred if the artist had relied on copyright alone?

 

“Obviously we can’t say for certain,” says Jessica, “but if Haggerty was relying on copyright infringement alone her legal position would not have been as strong, so the outcome may have been different. She may not have been able to successfully argue that her IP rights were infringed by MUFE’s image.”

 

Trademark vs. copyright, what’s the difference?

Before a creative can protect their work (and a business can be sure they don’t rip someone’s work off), it’s good to know the different levels of protection – be sure to check in your own country, as laws and levels of protection may differ.

 

The Australian Arts Law website defines copyright as ‘a bundle of rights which visual artists, musicians, writers and video and film makers own in relation to their work. It exists in every kind of creative work you can imagine.’

 

Phew, that’s good to know! So what does it actually cover?

 

Arts Law states that:

Copyright exists automatically once you create a work and is free.

Copyright can be shown by a symbol that looks like this: ©

Copyright is one of the most powerful rights you can own as a creator. It enables you to:

• control your work
• get money for your work

Copyright can be owned by anyone who creates a work, including:

• visual artists
• musicians
• writers video and film makers
• performers

Copyright does not protect ideas and styles. For copyright protection to exist you must express your idea in some physical, material or digital form.

 

A ruling earlier this year confirms that copyright only applies to works created by humans, not animals, so don’t try suing if someone rips off an image created by your cat as she slept on the keyboard (find out how a photographer who published selfies taken by a monkey was cleared of copyright theft in this LA Times article).

 

That’s great, so now we’re clear, but what about trademarks?

 

According to IP Australia, a trademark is a way of identifying a unique product or service:

Sometimes referred to as a brand, it can help your customers discern the quality of your product or service over that of your competitors.

 

A trademark is not just ‘a logo’.

 

It can be a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these.

 

 

You need to pay a fee to IP Australia in order to register your trademark, while copyright is free and applies automatically in Australia and New Zealand (it also applies automatically in the US, however you need to register the copyright of a piece of creative work in the US to be able to gain legal restitution for a copyright breach).

 

Thinking of emulation? Avoid the temptation

What can a brand do if they find an image they really want to use for their campaign but the owner refuses to allow it to be used?

 

According to Jessica, not much! If the copyright holder doesn’t grant permission to have their image used then the brand needs to come up with something of their own.

 

“It will be illegal (and foolish) for that brand to simply use it without permission,” explains Jessica, “as any such act will create a significant legal exposure for that brand along with the potential for serious reputational damage. However, it will not be a breach of copyright for the brand to use the image they like as inspiration to come up with their own image, which is what we would suggest be a far better idea.”

 

Watermark Creative Director Dean Proudfoot agrees.

 

“Trying to closely emulate an existing image can be an easy trap to fall into, and we are quick to tell clients that we can’t do it – It’s just not worth it from a industry standing or the legal exposure. I don’t think any illustrator likes following someone else’s style too closely. I would find myself second guessing their work, and finish up needing a hot shower.”

So, what about the 10% rule?

Have you ever heard about the 10% rule? Or maybe it was 15% or 20%… a rumour that floats around creative business circles that if you alter a piece of work by a certain percentage (the number varies but the notion doesn’t), you should be safe from copyright issues?

 

“Rumours should never be trusted until verified, especially when it comes to legal issues!” cautions Jessica. “If you are the owner of a copyright work, you have the exclusive right to reproduce, publish, perform or adapt that work. Which means that no one else can do any of these things unless you permit them.”

 

 

Jessica further clarifies that copyright law protects the expression or manifestation of ideas and not the ideas themselves, so it is not a breach of copyright to draw inspiration from the ideas used in a copyright work when coming up with your own image or design.

 

“Of course in practice, this can sometimes be a grey area,’ says Jessica, ‘which is why copyright disputes often arise!”

 

Andrea of My Creative Biz adds that in Australia, if someone has used a ‘substantial part’ of a work under copyright within a new piece of work, the copyright has been infringed.

 

“A substantial part is a recognisable part,” explains Andrea, “not a fixed percentage of the work, and is likely an important part of the work. For example, if I use part of a recognisable background from another copyright owner’s work in my new creation I will infringe copyright.”

 

Business.com’s article ‘The difference between inspiration and infringement’ provides some very good insights about how you can build on an idea without running into legal issues (at least in the US).

 

According to the article, it’s all about the composition or arrangement of elements and concepts, and whether the original piece was arranged in a ‘non-predictable’ way.

 

For example, if you found (or your client loved) an image of a family of Kiwi birds heading off on a fishing trip in a red soft top, that image composition is unique and if another illustrator was asked to replicate it, that would most likely infringe copyright.

 

However, if you found an image of a Kiwi bird hunting for food amongst fern trees in a forrest and wanted an illustrator to recreate it, that image is more ‘predictable’ and may be less likely to infringe copyright, depending on the composition and details you included.

 

“Copyright’s operating principle for inspiration is this:”, states the article, “one can freely copy others’ ideas and predictable arrangements; however, when the arrangement of such ideas and concepts is sufficiently unique and non-predictable, one cannot copy this ‘expression’ without risking infringement. Upon creating any type of content, businesses should have procedures in place to ensure that inspiration does not amount to infringement.”

 

At Watermark Creative we are finding that more and more clients involve us from the get-go to help develop unique pieces of work to suit their specific campaigns. It’s always a lot more creatively fulfilling to be involved at the beginning of a project and our clients get a better result if the artists are invested and doesn’t just feel like a hand.

 

We often explain that Illustration is similar to handwriting; while you may find someone with a similar writing style it’s never going to be exactly the same

 

A winning example of copyright infringement

An interesting case popped up recently that clearly demonstrates the dangers of trying to alter someone else’s work and claim it as your own. It may surprise you how bold some people can be. The internet may be fuelling copyright abuse, but it can also act as a whistle blower!

 

In October 2017 artist Fan Yu submitted two pieces of work for the international Red Dot Design Award. Yu was awarded prizes for both works, with one being awarded overall winner for which he received a trophy, international recognition and a monetary reward.

 

It later came to light that the winning image, a poster for the Chinese Open Air National Cinema, had used a substantial part of artist Russell Cobb’s original work (who just so happens to have illustrated the cover of The Illustrator’s Guide to Law!).

 

 

According to an Association of Illustrators article, the infringement was uncovered by members of a Chinese social media group working to stop plagiarism in the art and design in China.

 

A representative of the group reached out to Cobb to alert him to the infringement and Cobb informed Red Dot. After investigating the issue, Red Dot banned Yu from entering the awards for life and he lost his university position, where he had been promoted to Associate Professor after winning the award.

 

(read the full details on the AOI website).

 

What to do if you think your copyright has been infringed

Andrea from My Creative Biz, who works with creatives across a wide range of industries, recommends the following steps for those who believe their copyright has been infringed:

 

1. Take copies and screenshots of everything before contacting the infringer, making sure you show their business name, the date and the infringing material.
2. Understand that other areas of the law may apply – passing off or trademark infringement for example. Before contacting the infringer make a list of all the areas of law you need to discuss with them. This is also useful if you need to contact a third party such as a hosting company or social media site to request they remove the infringing images.
3. Decide on the outcome you want. You may just want credit or for the infringer to remove the image. If the infringer has profited from your work it may be better to seek compensation. Your decision will determine your next steps.
4. Depending on the outcome you want your next steps could be:

• Send a ‘cease and desist’ letter (you can get a lawyer to draft this, or your industry association may have resources to help).
• Contact and request a credit for your work. A public apology may be nice too.
• Contact the social media site or web host and request they remove the infringing items.
• Engage a lawyer (especially if you are requesting financial compensation or if has been a commercial infringement, a more serious breach of the law).

 

Likewise, lawyer Jessica Kerr recommends that artists seek legal advice if at all possible, and act swiftly to defend their rights.

 

“If there is an infringement of rights, a lawyer’s letter of demand can be extremely effective in resolving the situation quickly. Swift and decisive action also sends a clear message to deter any other would-be infringers that the copyright holder is serious about protecting their legal rights.”

 

While the thought of legal action can be daunting, especially for struggling artists, it’s definitely worth doing something. At Watermark Creative we’ve had to take action on copyright theft on a few occasions, but have usually ended up with a positive outcome without having to take legal action.

 

On one occasion, after finding that a company in Europe was using one of our images, director Phill Small made direct contact with the perpetrator.

 

“What was surprising is they had no idea that downloading an image off someones’ website was a breach of copyright,” explains Phill. “They were under the impression that it was okay to use any work found on the web.”

 

Ignorance is no excuse for breaking the law, but thankfully the copyright infringer did the right thing and paid a fee for their use of the work.

 

Phill also recounts an instance where a client had taken a character designed by Watermark Creative and had it animated by a third party without our knowledge. This was a breach of copyright, as the client had only purchased a license to use the image on packaging, point of sale and web. An extended license was negotiated, although it was upsetting that we hadn’t been given the chance to create the animation ourselves.

 

Involving artists early can lead to the best outcomes for agencies and their clients

It actually doesn’t take much to avoid any issues – and it’s our responsibility as commissioned artists to push back on a brief or direction that’s too close for comfort.

 

We ask that clients first show us what inspires them (or their end client), before they set their minds on one particular image. At that point we can discuss the aims of the brief and put together some potential solutions via mood boards, sketches or examples of past work that avoid any potential copyright issues.

 

We often find that our new suggestions and ideas are well received, eclipsing the need to try and mimic any existing imagery and providing the brand with something unique with which they can really build a memorable campaign.

 

We hope that this article helps to clarify any ‘fake news’ floating around and give some insights into how to manage tricky copyright situations.

 

Further reading for your next tea break

The Australian copyright council

Arts law centre of Australia copyright information sheet

We Create – the Alliance of New Zealand’s creatives

Business.com – The difference between inspiration and infringement