Is your design inspired or stolen?

Is your design inspired or stolen?

Are you a crook? Jonathan Adler may consider you one when you use an edited, transformed, and artistically styled sample of his pillow design to create a custom-made wallpaper design for a client. But would he be right? These days, it is getting harder to tell, but there are still guidelines that can help you navigate the sometimes murky waters separating inspiration from infringement.

To make a custom-made wallpaper design for a client, assume you copy Mr. Adler’s black vine design that was inspired by an ancient Japanese kimono vine design, and that there are many types of this vine design in the pillow market. You then transform the vines by making them look shabby and worn out, use pink instead of black, and infuse the pink with the copies of the American flag. Imagine, then, that you combine the transformed Adler design with 9/10 other types of content from elsewhere, including a starry sky design pattern from Ralph Lauren Home to make your wallpaper.

Does your wallpaper infringe Mr. Adler’s copyright in the kimono vine inspired pillow design? Does it matter if you made up your own vine design that differed from Mr. Adler’s design, but which used his, among others, as inspiration?

The answer to these two questions depends on a number of factors. For the first question, given that you clearly copied Mr. Adler’s design, the question is whether the “fair use” defense would apply, part of which asks whether you sufficiently “transformed” Mr. Adler’s design to make it different enough from the original. The closer you get to a complete metamorphosis of Mr. Adler’s design – think the caterpillar becoming a butterfly – the safer you are. That’s because if your work and Mr. Adler’s are that different then people won’t think that Mr. Adler designed your pillow.

For the second question, you may not even need to get to the fair use defense. That only comes into play when you have actually copied another person’s expression. Because you merely used Mr. Adler’s expression of the Japanese vine design, among others in the marketplace, as inspiration to create your work, and your work differs from Mr. Adler’s, then there would in all likelihood be no infringement. That’s because copyright doesn’t protect the idea of the Japanese vine design, only Mr. Adler’s particular expression of it. Given that his expression isn’t original in the marketplace, it will most likely receive less protection than something truly off the wall – and original.

In the end, a completely original design is the best policy. That being said, designs are rarely completely original. The more your design exactly resembles another person’s work, the closer you are getting to the infringement line.

An Axl Rose sample used in a mash up often doesn’t sound as sweet.

An Axl Rose sample used in a mash up often doesn’t sound as sweet.

The bright lines of the real property based view of copyright are being blurred by technology. In 1991, Mr. Biz Markee was found liable for infringing Mr. Gilbert O’Sullivan’s copyright in his song, Alone Again (Naturally), when Mr. Markee used an unauthorized sample in his rap song entitled Alone Again. Had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the result may have been different.

A mash up is a digitally created song that splices in elements of other songs, sometimes in very small increments — not in quarks, but in milliseconds — to create what some would argue are original pieces. Think of a mash up as a fusion dish that blends elements of Chinese, southern soul food, Italian, and Mexican cuisine into one dish. The question arises whether the unauthorized use of other people’s songs in a mash up is an infringement or a fair use of their copyrighted works?

The question isn’t an academic one. According to Turning Profit from Music Mashups, New York based tech company Dubset Media, Inc., collects royalties from mash up artists who use other copyrighted songs in their works. The company’s technology, known as “MixScan,” tracks uses of copyrighted songs down to the second on mash ups. It then distributes royalties to labels depending on the extent of use.

These royalty streams come in different forms and can be lucrative, Turning Profit saying that such mini sampling can generate an additional $1.2 billion a year in revenues. That’s because there is a copyright in the musical composition underlying the song, and in the recording of the song. In Mr. O’Sullivan’s case, he would own the copyright to the composition of Alone Again (Naturally), which includes the musical notes and lyrics to the song, in addition to his recording of the song in the studio, known as the “master.” Mr. O’Sullivan collects royalties from those who wish to publicly perform or re-record his composition, and from others who wish to use the recording of the song in their music or in a film. Mr. Markee avoided paying these royalties to Mr. O’Sullivan by using the uncleared sample in the rap song Alone Again.

However, had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the resulting decision finding infringement wouldn’t have been so easy. Mr. Markee would likely have had a colorable fair use defense if he: physically transformed the sample (changing the frequency, tone, bass) so that it became physically unrecognizable in the final product, sampled only a small part, and if the resulting rap song either had no effect on the market for Mr. O’Sullivan’s work, or exposed it further.

Courts are more prone to find fair use — and no infringement — when there is either physical transformation of the copyrighted work in a new work, or application to a new purpose. Patrick Cariou, a photographer, lost his copyright infringement lawsuit against appropriation artist Richard Prince because he had physically modified the photographer’s photos of Rastafarians — in one case, putting a gas mask and guitar in the Rastafarian’s hands. In the recent Google books case, Google was found to have fairly used authors’ copyrighted indexes to their books by making them searchable via Google books. This is so even though there was no physical transformation of the copyrighted work, but, rather, only application to a new purpose.

Before the recent technology boom, copyright infringement was viewed with a real property monocle — one toe over the line constitutes a trespass. But technology is making that toe harder to see and the resulting line between properties less clear. A rose by any other name may smell as sweet, but an Axl Rose sample in a mash up doesn’t smell as sweet.

Sticks and stones may break your bones, but Charlie Hebdo cartoons will never hurt you.

Sticks and stones may break your bones, but Charlie Hebdo cartoons will never hurt you.

Don’t insult the Pope’s mother, or he’ll punch you in the face! In response to questioning about the Charlie Hebdo killings, the Pope stated: “If [you] say[] a curse word against my mother, [you] can expect a punch.” Not only does the Pope mischaracterize the Charlie Hebdo speech as consisting of naked insults, but well educated thinkers also have tried to paint the speech as “brazenly racist.” No matter how distasteful, such speech is clearly parody and is protected under U.S. law. Even if such speech was “brazenly racist,” U.S. law would still protect it under certain circumstances. French law should follow suit — if it already doesn’t.

In the Pope’s view, “[t]’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.” In a recent article by Oxford educated Mr. Mehdi Hasan entitled, As a Muslim, I’m fed up with the hypocrisy of free speech fundamentalists, he says: “[l]ampooning racism by reproducing brazenly racist imagery is a pretty dubious satirical tactic.” Not only that, but he thinks liberalism is hypocritical in that it, in his view, allows mockery of Muslims but not Jews: “Has your publication [The NewStatesmen], for example, run cartoons mocking the Holocaust? No.” Mr. David Brooks, a writer for The New York Times, chimed in, calling Charlie Hebdo’s speech “puerile” and “deliberately offensive humor” in I am not Charlie Hebdo.

Regardless if the Pope, Mr. Hasan, or Mr. Brooks are offended by or simply dislike Charlie Hebdo cartoons, such content would be parody under U.S. law. As stated by the Stanford Copyright and Fair Use Center, “[a] parody is a work that ridicules another, usually well-known work, by imitating it in a comic way . . . Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to ‘conjure up’ the original.” This means that the alleged fair use need not be “transformative” of the original work — either a physical transformation as was the case in the Barbara Kruger litigation, or application to a new efficient technological use as the book indexes in the recent Google book scanning case — when parody is involved. Similarly, under the First Amendment, parody is a protected form of speech under cases such as Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) regardless of the transformative nature of the speech.

Charlie Hebdo’s very existence is “broadly anti-religion and anti-establishment” and, as such, the publication has shot powerful parody bullets at Catholics, Muslims, Jews, and the French government. In fact, the Vatican has sued Charlie Hebdo 12 more times than Muslims. When viewed in light of the overall purpose of the paper to mock and challenge religion in general, none of the Charlie Hebdo cartoons are per se naked insults, an analogy to per se illegal price fixing restraints in antitrust law, of the Prophet. Instead, the cartoons are meant to ridicule the self-rightious nature of Islam, which often is characterized as not having a sense of humor. Similar humor can be found in movies like Mel Brook’s History of the World Part I, which pokes fun at Jesus and the last supper, both of which are sacred to Catholics. Notably missing from Mr. Hasan’s article — and Mr. David Brook’s — is mention of Arabs who stand in solidarity with Charlie Hebdo, as summarized in Arab Editorial Cartoonists Respond to “Charlie Hebdo.”Obviously, making fun of the Holocaust without an appurtenant message would be a naked insult, not a parody. Not an apt analogy by Mr. Hasan.

But let’s assume that Charlie Hebdo’s speech was “brazenly racist.” This does not necessarily mean it should be per se banned. In National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the U.S. Supreme Court upheld the right of the National Socialist Party of America, otherwise known in the Blues Brothers movie as the “[t]he fucking [Illinois] Nazi party,” to obtain a permit to march through predominately Jewish Skokie Illinois. As an illustration of the alleged hypocrisy of the current liberal establishment, Mr. Hasan posits a hypo from an Oxford philosopher, “if a man had joined the ‘unity rally’ in Paris on 11 January ‘wearing a badge that said Je suis Chérif‘ – the first name of one of the Charlie Hebdo gunmen” he would have been murdered. Perhaps, but the Nazis in Skokie would likely have been stoned — or worse — if they tried to march without a license, which would have given them police protection. Under U.S. law, even though the man in Mr. Hasan’s hypo would have the right to voice his thoughts, such right would not be unfettered. He would have needed protection. Regardless, an offensive parody cartoon in a widely circulated newspaper has less of a propensity to directly incite violence than one individual entering a marching group and voicing his or her opposition speech in the face of others, which is why this hypo by Mr. Hasan’s Oxford philosopher isn’t relevant either.

The images in Charlie Hebdo aren’t defamatory, don’t falsely shout “fire” in a crowded room, or even insult the Pope’s mother. It is unfortunate that the Pope and his cohorts don’t heed the elementary school saying: “sticks and stones may hurt my bones, but words never will.” For them to think otherwise is to turn Western liberalism on its head.

What is good for the goose is good for the gander.

What is good for the goose is good for the gander.

Banksy and other graffiti artists are gaining increased commercial acceptance in the traditional art world. The Los Angeles Museum of Contemporary Art recently had an exhibition called Art in the Streets featuring artists such as Banksy and others. But whether such artists’ works are protected by the Copyright Act, among other legal doctrines, is unclear. There is paltry case law on point.  We recently found this out when researching the issue for a somewhat famous — or some might say infamous — New York graffiti legend.

The Copyright Act generally protects creative works fixed in a tangible medium. Song lyrics are a good example. When Bob Dylan writes his song, All Along The Watch Tower, on a piece a paper, he can register the song with the Copyright Office. Only then can Mr. Dylan can than pursue others for using the song unlawfully. Many federal courts require a work to be so registered before suit can be brought by the artist for damages, attorney’s fees, and statutory damages.

But what about creative works that are fixed by graffiti artists all around New York City’s walls and subways? Assume Banksy paints the picture above on a Fifth Avenue wall. Could he then go and register the work with the Copyright Office, just as Mr. Dylan did with his song? Even if he can’t, does that mean Bansky has no legal protection? The questions are simple. But the answers are not so clear.

There are no cases directly on point. There is one case from the Northern District of Illinois, entitled Villa v. Pearson Education, Inc., in which the court denied the defendant’s motion to dismiss the graffiti artist’s copyright infringement claim because there was an issue of fact whether his art was illegal. There is also another case pending overseas between graffiti artist CanTwo and the Spanish Olympic Committee, reports the Wall Street Journal in CanTwo Says “Can Not!” to Spanish Swimmers. But that case is not yet decided and it involved apparently legal graffiti.

While this uncertainty is troubling, a graffiti artist should nonetheless be able to argue that a gallery is unjustly enriched when they sell a photo of his work but don’t pay him even if he does not have a copyright claim. That’s because what is good for the goose is good for the gander. If a gallery is going to commodify the artist’s graffiti efforts in a secondary market, it will be hard pressed to argue that the artist has no rights in the primary market because the work was illegal.