Where does copying begin?
December 6, 2013 2:29 PM   Subscribe

Images of a work incredibly similar to one made by my partner have been published and we do not know if there is a copyright infringement or what to do.

My partner is what is generally described as a mid-career artist. Their work has met with some success. Some work is quite well known, but their main focus has been in working between people, so naturally this isn't a sales point :-)

For example, one work requires people to manipulate it. It is made of fabric and it's construction is not complicated. The thinking behind it is, though.

At some point over the last year my partner corresponded via email with a woman running a kind of happiness project (not "the" happiness project). Today my partner received, as part of a mass mailing, a series of images that included a "thing" (not performance, not art, but a "thing") that was based around a near-identical piece of fabric as my partner has made. I know fabric is mutable, and there is question about who "owns" ideas (is there?) but it is disturbing that this person took the idea (if they did -- it is incredibly close, not just in size but in the photographic documentation which makes me think that it is not a random, wow look Jung was right moment).

So what could we hope to gain by confronting this person? What could we possibly say? And mostly, is there anything that can be done? And if there is, can we stop this person profiteering from my partner's idea (this is really the thing I'm most disturbed by -- that they will take this idea and "market" it -- yes, because we would miss out, but without acknowledging my partner at all, it seems just really unfair (and it sucks that people will pay for a "happiness" experience but not for "art").

Should I try and find who looked at this part of the website when? Should we just write a "good luck but you know if you make money you owe us" type email? And if the latter should we first send just a "good luck" email in the hope of baiting into an admission?

Quite swirly, but if you need clarification or have insights you'd rather not put into a googleable position, throwaway email: spinmerightround@maildrop.cc
posted by anonymous to Work & Money (7 answers total)
IANAL, etc.

a manipulable 3d object isn't something you can really copyright, it could be patented (if it was a toy, for example), but that's something you need to actual file for, it's not granted by default
posted by Oktober at 2:41 PM on December 6, 2013

It would be helpful to know more about all of this.

It probably depends a lot on the nature of your partner's work and the nature of this other thing.

It's not really "copying" if your installation artist partner made an installation that included, for example, a soft sculpture of a seahorse and now a company is selling a soft-sculpture seahorse toy that is identical to the one your partner used in the installation.

If the other person is also an artist, and an artist in the same medium doing work of a similar type and scope, that gets a lot messier. It is very possible that it's perfectly legal for this other person to be doing what they're doing, even if it is a shitty underhanded thing to do.

If you are looking for some kind of legal recourse, you are ultimately going to be seeking damages. If your partner's art is not for sale, and they didn't trademark it, it's going to be difficult to prove that they are being damaged in any way by what this other person is doing.

I certainly would not go emailing anybody about how you are "owed" money, when you may very well not be owed anything at all.
posted by Sara C. at 2:50 PM on December 6, 2013 [1 favorite]

I would politely confront the woman. Tell her you know she saw your partner's work. Tell her she has duplicated your partner's work and ask her why she has done so. You may be surprised by her answer. It may not correlate to your assumptions. See what she has to say about it.

Also, it sounds like you have not seen this work in person. Maybe the reproduction is misleading?

Maybe make a trek to her happiness project to verify that it is an exact copy. Then you can confront her in person, which is the best way to get an honest answer from her.

Finally, if all else fails, you can publicly shame her and her "happiness" project, starting here: Who Wore It Better?
posted by Jason and Laszlo at 3:01 PM on December 6, 2013 [5 favorites]

Further to "Who Wore It Better?", I'd also mention that for-profit companies crib from fine arts all the time. In most cases I don't know that the artists have any recourse unless it's something like directly reproducing their work without permission.
posted by Sara C. at 3:17 PM on December 6, 2013

But Sara C., given it is true that corporations borrow from artists (for ads, whatnot) that does not make it okay. At heart I think the question being asked is of an ethical nature, as the asker obviously has no legal recourse. The offending party should be aware that others disapprove of their intention to profit from a lack of imagination. [Spread the word on social media, etcetera.]
posted by Jason and Laszlo at 3:43 PM on December 6, 2013

My point in saying that -- and keeping in mind that this is Ask Metafilter -- isn't to say that it is right or good or to defend the companies that do it.

My point is that, when it's not a matter of direct copying (object for object, or unlicensed reproduction of an image), things get very complicated. Nobody owns an idea like "a thing that has a halftone pattern on it" or "paint rollers in mic stands" or "a stone surrounded by a neon plastic grid".

Either way, I think talking to an attorney is probably the OP's partner's best bet.
posted by Sara C. at 3:52 PM on December 6, 2013

If your partner's design can't be held as another form of intellectual property, and the item is a distinctive and recognizable work of theirs, maybe it could be registered as a trademark. Mickey Mouse, for example, is trademarked by Disney regardless of what angle or pose the character is depicted in, and my understanding is that trademark law is more flexible than other IP law. Another question for a lawyer, of course.
posted by XMLicious at 9:09 PM on December 6, 2013

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