Apparel Company Counters Piracy Accusation with Bogus Claim of Copyright Infringement
Posted by Rebecca Blake on December 28, 2015
Canadian illustrator Eric Kim reported that his illustration of pro wrestler Randy “The Macho Man” Savage was pirated by apparel company Freeze Central Mills Inc. In October, Kim discovered that Freeze had taken his artwork, flipped it, erased part of the image, and printed it on red sweatshirts with a holiday message. Although the sweatshirt image has been altered to appear as if it were created from cross-stitch embroidery, the illustration was clearly traced from Kim’s original. The sweatshirt was sold by 80s Tees in time for the 2015 holiday season.
Kim immediately took action, contacting Freeze Central Mills through his lawyer, and requesting a fee of $1,500 for the use of his image, of which $1,000 would have gone to legal fees. According to Kim, Freeze returned an offer of $350, a paltry sum. (Kim estimates that 1,440 sweatshirts were sold, generating $20,106 in income for Freeze.) The website which sold the sweatshirt, 80sTees, was far more accommodating to Kim, removing the shirt from sales, and adding Kim’s credit line and a link to his website.
What is even more troubling about Freeze’s response to Kim is that they told him that he “was in trouble with the WWE (Worldwide Wrestling Entertainment) for even making the image” since he was violating the copyright of the image. If Kim’s recounting is accurate, Freeze is incorrect on several counts. Randy “The Macho Man” Savage was the ring name of the wrestler, Randy Mario Poffo, who developed the character while wrestling for the Worldwide Wrestling Foundation (WWF). WWE doesn’t hold the copyright to the character. While the character has been trademarked by Savage’s wife (the wrestler died in 2011), the trademark specifically covers action figures and accessories.
Kim might have concerns should his image violate Savage’s (or his estate’s) right of publicity. However, right of publicity generally permits individuals to control the commercial use of their images. Kim created his illustration and posted it in his portfolio to showcase his skills; he never intended to market the image commercially. Additionally, right of publicity is not covered by federal statute, but is controlled by state law, and varies widely. (For more information on right of publicity, check out attorney Robert Clarida’s article on the topic on our Tools + Resources page.)
The irony of Freeze’s response to Kim is that the company, not Kim, sought to profit from the image. If the company was truly concerned with legalities, their marketing team would have done due diligence to ensure that using the image didn’t violate intellectual property or publicity rights. In fact, Freeze appears to have a history of violating trademarks. In February of 2015, the company was found to have violated trademark law in marketing goods bearing Bob Marley’s image. And in August, Adidas filed a lawsuit that accuses Freeze of violating their three-stripes trademark. In light of their history of trademark violation, Freeze’s response to Kim appears to be a blatant (and somewhat hypocritical) attempt to deflect the illustrator by raising bogus fears of copyright infringement.
Below: Eric Kim’s comparison of his illustration (left) and the Freeze sweatshirt. (© Eric Kim, and not the WWE! Used with permission of the artist.)
Holiday GIFts, Courtesy of Creative Mornings
Posted by Rebecca Blake on December 15, 2015
Creative Mornings, the global network of free breakfast talks on creativity and technology, posted a wonderful freebie for creative professionals during the month of December[L1] . The “GIF Channel” is a wall of GIF animations on themes relevant to freelancers and agency staff: waiting for feedback or payment, finishing a long project, or searching for motivation. The organization curated a collection of GIF animations, and has invited viewers to share a GIFt with their clients.
If you’re unfamiliar with Creative Mornings, their website is worth bookmarking. Their “Talks” page features links to over 2,600 Creative Mornings talks, filterable by city, theme, length, and language, pulled from their YouTube channel. Recently, they’ve published a channel of their most popular podcasts. If you’d care to check out a live Creative Mornings event, their “Cities” page links to local event pages.
Fashion House Appropriates Sacred Inuit Design
Posted by Rebecca Blake on December 03, 2015
In November, Canada’s CBC Radio reported that British fashion label Kokon to Zai (KTZ) stole a sacred Inuit pattern to print on their “Shaman Toweling Sweatshirt.” As it turns out, a descendent of the shaman who created the design is a producer at CBC North, which broadcast her story. Salome Awa told CBC radio that her great grandfather created the image in the 1920s for a protection parka made of sealskin. The design is considered sacred, and by Inuit tradition, only the shaman is permitted to wear the design. Since no one at KTZ contacted her family for permission to use the pattern, Awa speculates that the fashion label saw the image in books or in a film documenting the travels of the explorer Knud Rasmussen, who met the shaman.
Although KTZ didn’t initially return Awa’s telephone calls, they eventually pulled the design and issued an apology. Awa credits the outcome to the negative publicity generated by the broadcast and news stories. This isn’t the first time the fashion house has been in hot water for appropriating indigenous design. In early February, KTZ was accused of lifting the pattern on a dress from the work of Crow designer Bethany Yellowtail. Yellowtail took inspiration for her fashion design from beadwork inherited from her grandmother. Adrienne Keene, a member of the Cherokee Nation of Oklahoma, points out that cultural appropriation in the fashion and design industries shows little creativity: “It was our people who did the heavy lifting creative work for you. We designed these images. We have the knowledge and understanding of what they mean and how they can be appropriately used.”
Treading the fine line between cultural inspiration and insensitive appropriation can be difficult for designers. On her blog Native Appropriations, Keene asks that Native businesses be supported, and that designers understand “…that our cultures aren’t free for the taking.” In her article “A Much-Needed Primer on Cultural Appropriation” (Jezebel, 11/13/12), Katie J. M. Baker recommends doing some basic research on the religious and cultural significance of designs and products. Those wanting a deeper understanding of the complex issues of cultural appropriation can check out Who Owns Culture?: Appropriation and Authenticity in American Law by Susan Scafidi. Scafidi, a leader in the new field of fashion law, covers the grey area of communal authorship not protected by US copyright law.
Below: KTZ’s current line of apparel features designs heavily lifted from Native American cultures, including a pattern which closely copies the work of designer Bethany Yellowtail (center dress).
Ad Agency Video on Spec Work Belies Reality Facing Creators
Posted by Rebecca Blake on November 18, 2015
A video and blog post on spec work produced by Toronto advertising agency Zulu Alpha Kilo is burning up the Internet. In the video, an actor approaches different businesses unfamiliar with work on spec (for the most part) and asks for free products or services – a cup of coffee, a breakfast, architectural design, picture framing, and personal training. The incredulous reaction from the business owners doesn’t deter the actor, who trots out business jargon to justify his request: “You guys can make me a spec breakfast, right? And if I enjoy it, I’ll make you guys my ROR, my Restaurant of Record…” He even pushes the personal trainer to give him the intellectual property rights to the training techniques. The video concludes with a challenge to ad agencies: “It’s time we all said no to spec.”
As Adweek reported, the video was created by the agency founder Zak Mroueh for presentation at Strategy magazine’s Agency of the Year event. Mroueh told Adweek that Zulu Alpha Kilo hasn’t done a pitch requiring spec work in five years, freeing up time and resources to work on clients’ brands rather than on generating new business. The strategy seems to have worked for the agency; they reported that they’ve tripled their staff and gained high-profile clients such as Google and Corona.
It’s heartening to witness an ad agency pushing back on spec work. Unfortunately, the equation is quite different for the professionals contracted by ad agencies to create content. As reported in numerous publications, such as Mashable, New Business Intel, and the LA Times, ad agencies are increasingly turning to crowdsourcing to generate content for their clients. The Mashable article’s glib description of, “hordes of talented people” who are “willing to work on the cheap and on the fly,” belies the experiences reported by many professionals. Requests for work on spec or free have skyrocketed (see our articles on “Spec Work Documented on Social Media” and “Artist Dies of Exposure”), undervaluing the illustration, design and animation professions.
“There’s a double standard being applied to the professionals who create the content that drives the advertising industry.”
Crowdsourced content is being leveraged by a new breed of ad agency, such as Victor & Spoils. Victor & Spoils, which launched in 2009, prides itself on being an agency which collaborates with brand fans – or as their website describes them, “lunch ladies” – as well as seasoned advertising pros, pulling in fan feedback on brands at the outset of the creative process. The agency relies heavily on crowdsourcing. A 2009 article on Wired.CO.UK described how the agency used platforms such as crowdSPRING, 99designs, and GeniusRocket for projects ranging from brand strategy work to TV spots. (The agency even used crowdsourcing for its original logo and website design.)
Victor & Spoils also utilizes their network of professional creatives to generate content. In the Wired article, agency founder John Winsor described their process: 50-100 of their “creative department” are invited to contribute to a project, and from the submissions, 6-12 finalists are selected to compete for the final product. Only the finalists and winner are compensated. Of course, the participants give up any pretence of ownership of intellectual property; the agency’s terms stipulate that any contribution is work-for-hire. Winsor complains that only 10% of the creative output is any good, requiring “strong creative direction” from agency staffers.
The crowdsourcing model used by Victor & Spoils isn’t unique. Talenthouse (“the world’s largest creative department”), Tongal (“The World’s First Studio-on-Demand“), and GeniusRocket (“A creative video agency powered by a curated crowd”) all rely on content inexpensively provided via crowdsourced projects. The trend makes the acclaim of Zulu Alpha Kilo’s anti-spec video bittersweet. It’s inspiring to see the video which casts a spotlight on spec work receive so much recognition. However, if the example shown by Victor & Spoils reflects a growing trend, there’s a double standard being applied to the professionals who create the content that drives the advertising industry.
Below: a screenshot from Zulu Alpha Kilo’s video. This guy can’t believe he was asked to work for free.
The Restrictions in Stock Image Licenses Illustrators and Designers Need to Know
Posted by Rebecca Blake on October 06, 2015
Microstock websites – websites that purvey low-cost photos, illustrations, and icons – have become a standard image source for designers with small budgets and undiscriminating clients. Illustrators have also used microstock, either in the creation of collage or montaged imagery, or as reference material for illustrations. However, both designers and illustrators are cautioned to read through the licenses employed by microstock sites. The low fees and “royalty free” label extended by microstock sites do not translate to unlimited use of their images.
Restrictions which would affect illustrators seeking to use stock imagery as source material are not always as clearly spelled out. The license agreement for Getty Images is an exception; it states: “Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.” Of the licenses reviewed, only iStockphoto’s license includes similar language to Getty’s, but the other terms do restrict the reselling of their images. Since the authors of the microstock images retain the copyrights, one can reasonably surmise that an illustration based on a stock image may not be copyrightable. A safer course of action for illustrators is to use source material that is clearly in the public domain.
There is a downside to using microstock sites in general. Much of the imagery uploaded to the sites is trite, stereotypical, or simply poorly executed. (Stock photos were beautifully lampooned by the fake images created to mark the release of the film, “Unfinished Business.”) Microstock is also blamed for devaluing the illustration and photography professions by using an unsustainable business model that can’t support professionals.
Below: highlighted portions of the Getty, iStockphoto, and Dreamstime licenses.
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