Need Copyright Lawyer

[joreth]

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?

Comments

Re: T-shirt

[joreth]

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.

Re: T-shirt

[ewen]

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