Do colour choices fall uner copyright?

[beelzebomb]

I am an authorised seller for artwork by a film company who are based in the USA. I have recreated a well-known piece of art but with unique and different colours based on vintage cars of the period.
I have now, inevitably, started to see these unique artworks being pirated and sold on Amazon USA and Redbubble. The colour-way clearly identifies them as mine - nothing like this existed before I created it.
Where do i stand? Ignoring for a moment the fact that these sellers probably aren't licensed to sell the works anyway, can these people just copy my colour scheme?

[AndyJ]

Hi beezle,

The copyright in the original artwork remains with, presumably, film company or whoever created the artwork. You may own a copyright in the colours you have applied to the artwork, depending on whether your choices etc meet the threshold of originality. This is a fairly low threshold, at least in the UK and EU. On that basis, if these other sellers had legally procurred the same basic artwork and re-coloured them using colours similar or identical to your choices then there may well be infringement of your colour additions. However, if these sellers do not have permission from the film company then they are infringing both copyrights and ideally you and the film company could jointly sue the sellers. The film company can't act in respect of your colours and you can't take any action just involving just the underlying artwork.

It depends on what you are trying to achieve. If you just want to get them to stop, you could serve DMCA notices on the platforms where they sell their prints. If you want financial compensation for lost sales then you would need to find the appropriate legal forum in which to sue them. To do this effectively you would need to get some legal advice, and your legal advisor can then tell you what are your prospects for success, based on all the evidence you have. Sellers based in a country like China or Vietnam are going to be infinitely more difficult to sue than if the sellers are based in the UK, EU or USA.

Given that this process will be expensive, it might worth talking to the film compnay first as they are more likely to have the resources to make legal proceedings a practical proposition. Since the copyright in their artwork is the stronger of the two, having them on board in a joint effort would make a successful outcome more likely to succeed, all other things being favourable.

[beelzebomb]

Thanks Andy. I’m not concerned with getting money out of these people - just getting them to stop. I guess a strongly worded email to the people infringing might be worth a try?

[AndyJ]

Yes, certainly worth contacting them direct, but also use the DMCA takedown procedure or its equivalent on Amazon etc since it costs nothing and the platforms are obliged to take action to remove the relevant listing, to maintain their immunity from being joined in a legal action.

[beelzebomb]

DMCA is clearly a powerful tool and I hear sites like Amazon et al are increasingly concerned with its misuse (I’ve been a victim of this myself on Etsy) - can I legally use this on my own as just a licensed reseller?

[AndyJ]

Yes, if your copyright is being infringed it is legitimate to use a DMCA takedown. An explanation of how the general scheme works can be found on Wikipedia although sites like Amazon and Ebay have their own slightly simplified systems.

As you don't appear to be an exclusive licensee of the film company which owns the copyright in the artwork, you can't make a claim concerning their copyright. However you should probably alert them to any suspected infringement of their intellectual property if you suspect the other seller is not licensed to sell/copy the artwork.

[beelzebomb]

Thank you.

[beelzebomb]

As a further note, I’ve tried to submit the somewhat complicated Amazon form asking for these items to be removed. I am being told ‘they can’t verify’ who I am for me to claim my ownership. Yet there’s no way of attaching a copyright agreement to prove my ownership, if you will.
I’ve reached out on Twitter, but it seems to me that Amazon is not very willing to listen or take such requests seriously.
Having never filed a DMCA notice, I am now wondering if this is more user-friendly - but would Amazon just be able to, pretty much, ignore this as well?
On the other hand, Redbubble has been efficient and helpful in removing similar items simply by emailing them with proof of my agreement.

[AndyJ]

Hi Beezle,

They really ought to take more notice of a DMCA Takedown notice as a failture to act on their part could render them liable for infringement for continuing to host the material after they have been officially informed that it is infringing. There are certain formalities, of course, but you don't have to prove to them that you are the owner of the copyright, merely state it and they are obliged to treat your notice in good faith. There are penalties under US law for stating something that you know to be untrue, but that is the extent of the issue.

The way this works is that under the DMCA, and the EU equivalent to be found in the ECommerce Directive, an Online Service Provider or middle man like Amazon is protected from liability for copyright infringement only as long as they have no knowledge that the disputed material is infringing, and continue to be indemnified provided that they remove anything expeditiously once they are informed. As I say, failure to do this means that they lose the immunity and they can then be sued because they are making money from the infringing trader, even if he is 100% responsible for uploading it. This is very attractive from your point of view because you might have great difficulty tracking down and stopping another trader through the courts, especially if he lives in an obscure jurisdiction. On the other hand you know where Amazon live and they have a presence in the UK (Amazon EU SARL, UK Branch, 1 Principal Place, London, Worship Street, EC2A 2FA, United Kingdom) so they can easily be joined in any suit you chose to bring. Moreover if damages are awarded against Anazon you will get your money, which might not be the case with a small trader who declares himself bankrupt.