Artwork design stolen yet not trademarked.
April 16, 2009 12:30 PM   Subscribe

Somebody stole and is reproducing artwork that I never copyrighted or trademarked. What can I do? Details inside...

I created a design based on the famous "I <3 NY" design for the local community I live in. I believe it's far enough from the original in that the font used is completely different, the "<3" is turned upside down and made into a paw, and the words are spelled out as opposed to abbreviated.

Anyhow, I created stickers and t-shirts and started selling them in some of the local shops last April. Come October, I find another shop completely ripped off MY design, look for look, and is doing the same thing.

Unfortunately I did not trademark or copyright the design, and when I confronted this other shop owner, they said that THEY had trademarked the design. Now I have no idea if they actually have or not, but still...

Do I have any legal recourse in this?
posted by maalsa to Media & Arts (18 answers total) 3 users marked this as a favorite
You need a lawyer. Designs are automatically copyrighted, you don't need to register them. The question is whether this design is copyrightable at all. Fonts aren't copyrightable. But the drawing of the paw might be.

As for trademark, again, you don't have to register to get some benefits, but registration does help a lot. If they've registered, it will make things more difficult, because your burden of proof will be higher. But again, this is a job for a lawyer.

So, short answer, yes you have legal recourse. No, this is not the kind of thing you can easily do yourself.
posted by kingjoeshmoe at 12:42 PM on April 16, 2009 [1 favorite]

Oh, and I am a lawyer, but I am not your lawyer.
posted by kingjoeshmoe at 12:43 PM on April 16, 2009

You do have a copyright; this was discussed earlier today, but copyright happens from the time you create your work, regardless if you filed an official copyright with the government. Since you've been selling them, you must have documentation of the first time you produced the image, so it sounds like you have a pretty solid case for copyright protection; one flaw would be the similarity to the original I <3 NY logo, and that might be the argument that they make, that your work isn't original and thus not protected. A copyright lawyer would be the first to talk to, but you're not completely out of luck.
posted by AzraelBrown at 12:44 PM on April 16, 2009

When you created the work, you essentially copyrighted it. If you have records (notes, documents, etc) to help your cause, get them together. When did you create the work? The fact you started selling things with your artwork in April is a good start. You should have records.

Talk to a lawyer.
posted by cmgonzalez at 12:50 PM on April 16, 2009

Check with a lawyer, but I think a lot will hinge on how much the font and paw element are copied (can you post examples?). If they are close to a 100% copy, you might have a case. If not, then it is going to be hard to prove that the other person didn't just come up with the idea independently. I [something] NY variants are not uncommon.

Also, check your sales records to see if you can trace anything directly back to this person.
posted by mikepop at 12:51 PM on April 16, 2009

Response by poster: UPDATE: After a quick search of the USPTO, I discovered that they HAVE in fact trademarked their design, which could make things messy.

I have PLENTY of documentation of when the design was created (saved files) as well as when the design was printed up on t-shirts and stickers. In fact, the shop that was selling the shirts and stickers was the one who told us about the other shop that had copied and said they remember the owner coming in and actually buying my sticker design. Then their claimed "unique and original" design appeared months later.

As much as I would love to get a lawyer involved and toast their asses, it might not be worth the time or money. I'm secretly wishing they come after me, but we'll see.
posted by maalsa at 12:52 PM on April 16, 2009

Response by poster: I will post examples of my design and their design later tonight, thanks for all the answers on this so far!
posted by maalsa at 12:54 PM on April 16, 2009

If you are going to go through with a lawsuit, you really don't need to post anything here.
posted by JJ86 at 12:57 PM on April 16, 2009

Obviously, when this is presented to a lawyer, the merchant selling your goods would be required to make that statement in your suit.
posted by jerseygirl at 1:15 PM on April 16, 2009

You they trademarked the design. Did they just apply for the trademark or has it been granted? Can you provide their registration number? You should check what they have listed as their first use in commerce date on their application. If their date is after you started selling the design, a trademark attorney could help you file a motion of opposition or a cancelation petition depending on what stage the registration is in.

There's a lot of complex issues here and the design itself may or may not be protectable. You should speak with a copyright/trademark attorney in your area, they'll be able to help guide you through your options and then you can decide if it's worth it to purse any action.
posted by Arbac at 1:19 PM on April 16, 2009

A better question: What if Milton Glaser decided to sue all parties?

Or, as Krusty the Clown put it, "If this is anyone but Steve Allen, you're stealing my bit!"

I don't think it's worth pursuing, as both works wouldn't exist without the original NY design, so it's conceivable that multiple parties would be inspired by the original to tweak/ remix / reinvent it, even though you have specific hints that there was artistic theft.
posted by sharkfu at 1:40 PM on April 16, 2009

Response by poster: sharkfu - makes a lot of sense, however what you said at the end is more what I'm upset about than anything else. I have no problem with people being inspired by and creating their take on a design (after all, that's exactly what I did), but the artistic theft is what gets to me. They used the same font, same words, same paw-shaped heart, yet added claws to the paw, where on my design there are no claws. However, I don't believe the claws are enough for them to say it was a completely original idea on their part. Not to mention, the shop we started selling our design in and their shop are on the same street, about 500 ft. from each other.

Anyway, the more I think about this, the more I'd like to pursue something legally. I even have a registered domain that I registered back in April and which is printed on the back of all the stickers. That should help out as well, I imagine.
posted by maalsa at 1:44 PM on April 16, 2009

I contacted an attorney when someone ripped off one of my designs a couple of years ago. The first thing she did was send the offending party a cease and desist letter, which cost me about $200. That would probably be the first step in your case as well.
posted by Ostara at 2:24 PM on April 16, 2009

Like this thread shows, sometimes you aren't as original as you think - if you made this design last spring, and as mikepop shows, the "I (paw) NY" idea has been out there since at least 2002, then perhaps you don't have all that strong a case.
posted by mdn at 4:43 PM on April 16, 2009

Response by poster: mdn - as I said in an earlier post, it's not so much about the "originality" of my design as it is the design being completely and blatantly ripped off. I'll be the first to admit my design is not THAT original, obviously I borrowed the whole "I <3 NY" concept and ran with it, but it's the matter of someone then ripping off my idea for their profit. It'd be completely understandable for them to have created something similar or even just different enough, yet unique, but they didn't. It was a straight, blatant copy and that is the part I'm most concerned about.
posted by maalsa at 4:58 PM on April 16, 2009

It was a straight, blatant copy and that is the part I'm most concerned about.

... They used the same font, same words, same paw-shaped heart, yet added claws to the paw, where on my design there are no claws. However, I don't believe the claws are enough for them to say it was a completely original idea on their part.

why is adding claws not enough, if the basic idea of a paw instead of heart has been used multiple times?

I'm not trying to pass judgment, I haven't seen the artwork, and I have no concern here - of course if it's worth pursuing for you, you should do it. I only wanted to point to that previous thread to point out that sometimes we don't realize how popular an idea is... Personally, I'd probably contact the individual responsible and see if you can work it out one on one, or ask them to stop if it upsets you, rather than going the legal route, considering the details of who built how much on which design is a bit murky.
posted by mdn at 6:12 PM on April 16, 2009

May be the best you can do it to work to get their trademark rejected. That gives you some satisfaction (it's not going to be officially theirs), they lose their registration fees (which are $x00's) and at least your retailers can't be gotten into trouble for selling trademarked work.

And then just outsell them.
posted by Xhris at 7:49 AM on April 17, 2009

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