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Notice of Intellectual Property Infringement - Etsy - Art Copyright

Posted: Thu Aug 06, 2020 8:21 pm
by tpp1987
Hello all,

I run a small store on Etsy selling digital art prints. I have today received three Notices of Intellectual Property Infringement from a competitor, and would like to ask for advice on whether these reports are justified.

In all three cases, the art in question is a poster collage of a group of 12 famous mountains, laid out in a 3 x 4 grid. The mountains are organised in height order, and were chosen due to being the 12 highest mountains in a certain geographic area (there are three areas, one for each print).

Each mountain is depicted in an artistic style, with its name & height printed underneath. The print also has a title with the name of the geographic area in question.

While there is a definite similarity in the layout & content of the designs, they are both in strikingly different artistic styles and use entirely different fonts/typefaces. My competitor creates the art in a classic, line art style, whereas my pieces are created in a bold, modern, block style which bears no resemblance to the other pieces.

Whilst the complaining party was first to market with this 'idea', the mountains themselves, their names, and other geographical facts related to them such as their height, shape, and location surely cannot be protected under copyright law in this situation.

I have created a 'similar' piece of art which would appeal to the same customer base, however it is designed in an entirely different style. It is my personal opinion (which I know is of no value in a legal situation!) that the style of the two pieces is significantly different enough that my work is not a copy of theirs.

In short: if somebody creates a collage with artistic depictions of famous geographical features, including their names & heights, laid out in a specific way, is it a breach of copyright to create a version of this work in an entirely different style? The elements in the design have not been created from the artist's imagination—they are representations of well-known, real-world locations, which are freely available for all to see and take inspiration from.

Many thanks in advance for your help with this—it's much appreciated.


Re: Notice of Intellectual Property Infringement - Etsy - Art Copyright

Posted: Fri Aug 07, 2020 7:52 am
by AndyJ
Hi Tom,

It is an internationally accepted principle in copyright law that ideas alone cannot be protected, only the specific expression of an idea which flows from the creative intellect of a person. For this reason facts such as geographical features, dates and historical events are not protected by copyright. In most cases this can be extended to names of people and places, although some purely fictitious names (eg Hogwarts) can initially attract weak copyright which is eroded by the passage of time and common usage.

So applying that to your situation, provided that your expression of the idea is sufficiently different to the other artist's there would not be copyright infringement. Exactly how much difference is required is an almost impossible question to answer in the abstract. However if you were able to show that you came upon this idea entirely independently, without having previously seen the other artist's work, then you would be in a strong position, whereas if you knew about the other work and deliberately set about creating your own version, you are in a much weaker position. Clearly we are all to some extent inspired, either consciously or subconsciously, in our creativity by things others have created, but the courts tend start from the premise that someone who deliberately sets out the copy an existing idea has to show that they have made a lot of unique choices in how they execute their version, in order to avoid a claim of copyright infringement.

Here's a link to a case from 8 years ago in which this issue arose, involving two photographs of substantially the same scene. A critical factor for why the defendant lost in that case was that he deliberately set about copying the first work with, he hoped, just enough differences for his to be considered non-infringing. As you will see from my comment at the bottom of that blog posting, there was another, earlier case known as Creation Records, in which some of the facts were similar, but the court found that there was no infringement.

If you have the time, you can read the complete judgment in both cases by following the links below:
Red bus case
Creation Records.

Re: Notice of Intellectual Property Infringement - Etsy - Art Copyright

Posted: Fri Aug 07, 2020 10:57 am
by tpp1987
Thank you Andy for your very helpful reply—I really do appreciate it.

I think that I may have shot myself in the foot here, unfortunately, as my design was indeed inspired by the other work. I feel that I have differentiated it enough for it to be unique, however this may not hold up in court.

Sadly, I'm not currently in a position to take this any further, so I think I shall have to let this one slide and come up with other ideas to pursue.

Many thanks for your help.