joreth | Need Copyright Lawyer

So there's this dickhead who saw a graphic I made to sell on one of my t-shirt sites online and thought "hey, that's a pretty cool graphic, I bet I can sell stuff with it online too!" He took the graphic, then did stuff like "splining" and spent a whole ton of hours on it to end up with a graphic that looks EXACTLY LIKE MINE. Then he did more stuff and spent more hours on it to end up with a second graphic that looks EXACTLY LIKE MINE but rainbow colored. Then he slapped it on a bunch of items from Zazzle and started trying to sell it.

According to the storefront, this is what he does: "This store represents the wild creations which flew by and I happened to reach out and catch a bit of. Hopefully I will be able to catch more as time goes by."

The tricky part is that the image is made of elements that you can't copyright. For example, I can't copyright the teardrop shape. But I can copyright or trademark a specific teardrop that is stylistically unique and recognizable. Then, if you open a store and want to sell something with a teardrop on it, you can make your own teardrop that looks different from mine but still looks like a teardrop and you're not in violation of copyright.

But this guy's version doesn't look any different from mine, except it's a different color. It is obviously, clearly, and recognizably my graphic. For the original image that is the same color, he didn't even bother to remove that grey-ish background that's actually a black t-shirt material from my own store's thumbnail before putting it on a couple dozen items like keychains and greeting cards and aprons. Seriously, if you look at his keychain, it's a round keychain with a grey-black square and my graphic in the middle, just like the close-up image of my t-shirts.

So, I sent a cease & desist letter. He responded, defending his right to use my graphics because of how much he "changed" in the picture. I reported the violation to the Zazzle complaint department, and he removed a few of the products, but not all of them, still insisting that making it rainbow colored is enough of a change to justify using my graphic.

So now I need a lawyer. I have all the correspondence, plus the original Photoshop elements of the graphic under contention, and I need to know what to do from here. Any recommendations for lawyers, or any lawyers out there willing to give legal advice?

Flat | Top-Level Comments Only

IANAL, especially not in the US.

But that said, I tend to agree that the approach you report (catch things as the come by and recreate them with a few changes) does sound a lot like "derivative work" -- and making minimal changes from the original design and then selling them would tend to count against a finding of "fair use". But being right and actually getting a court to do something about it are pretty different things (especially in terms of money spent).

You should probably think seriously about what your end goal is here. If your aim is just to get him to stop you might be able to get some success with a letter (possibly from a lawyer on legal letter head) citing the DMCA at him/his hosting provider/etc -- and having a lawyer "fire and forget" such a letter might not cost too much. As an approach it seems to work for various Big Business media companies, even with minimal proof, mostly because the DMCA favours the "take down first, ask questions later" approach. I also know of a few other situations where the "little guy" has successfully used it. But it does turn into a "whack a mole" sort of task.

If you're trying to get, eg, money damages, or a court restraining order or something like that, it could easily end up consuming a whole bunch of expensive lawyer time. And I'd guess that someone who was selling t-shirt designs they "happened across" probably doesn't have a whole not of money to turn over even if a court were to order it. Any (good) lawyer would probably give you this same "is it going to be worth it to you to spend the money on this" spiel.

FWIW, I know that some people in similar situations (eg, photo copyrights, used without permission) have just resorted to using their web page rank to point out the unauthorised copying, and left it at that.

Ewen

Unfortunately, it rarely makes economic sense to pursue legal remedies for stuff like this. You can always keep up the pressure as you have been doing. Sigh.

Sometime it feels as though these laws (patents, copyright, etc) are only useful for 'the big guys'.

I'm not trying to get financial damages, I'm just trying to get him to stop selling it in his store. I am aware of the "derivative work" laws, but his "changes" involved making my design a different color. It is clearly still my design. I have already traded emails with him asking him to remove them and he has refused. I have tried contacting his hosting provider, and so far all they have done is give me his email address and suggested that I contact him directly to work it out with him. That's why I'm looking for a lawyer.

I'd expect you'll have to invoke some piece of law that puts obligations on them (eg, a relevant section of the DMCA) before the hosting provider will want to do anything; I'm actually impressed that they were even willing to put you in touch with him. (And the DMCA doesn't guarantee it'll stay down even if they take it down; just gives the hosting provider a legal out if he says "no it's not a copyright violation, but it back up".)

Best of luck. I do suggest you go into it with an idea of how much you're willing to spend trying to solve this problem, so you don't find yourself throwing good money after bad.

Ewen

As a artist myself, I've had to deal with some of my photo work stolen. normally a simple DMCA request can stop people. now i went looking on the site in question and theres no real way to serve them with one. you can Report violations of it, but that requeirs a account. however there is a email address that you can get for the content people on the site.

when you send the DMCA, heres a site that helps you with the rough ideas on what you need to have - http://www.dpreview.com/articles/1999431312/two-easy-steps-for-using-a-dmca-takedown-notice-to-battle-copyright-infringement

otherwise looking at the persons account, it looks like they steal images from the internet so use tools like tineye and google image search on some of there other works and see if there is any that have been posted on 500px, redbubble, or flicker, if there is one you might be able talk to the othere owners of the shots and get them to post and blog about it.

Need Copyright Lawyer

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