Is my drawing stepping on another companies toes?

[Tometoyou]

I'm looking for some advice and opinions regarding a design that I've drawn that was inspired by a meme of a frog. I have a basic understanding of copyright and I understand that anyone is free to make their own artistic execution to make their own unique design. However, I seen the meme a few months back and have only just got around to drawing it from memory but I found the meme again today and decided to make sure enough of the elements were executed differently.

The meme is basically a photo of a frog sat on a log in an unflattering way in which I've drawn my own frog also sitting on a log, although it looks similar, the head and eyes are angled slightly differently, the log is different, the colours are different shades, I've added extra finer details and exaggerated the unflattering parts a little more etc (I sketched it out and then finalised it in Illustrator, took me around 4 hours from start to finish to complete).

I'm want to sell the drawing I made based on the idea from the meme I seen featuring the frog, so I done a reverse image search to make sure there wasn't anything else like this but I I found a company selling prints of the actual meme with the frog, as in they've just copied and pasted the original image of the frog and changed the font and changed the wording a little. As far as I'm aware, I don't know where the original photo came from and I'm pretty confident they don't own the original image of the frog due to how badly they've cropped and tried to edit the original meme.

So my question is, I'm just worried incase this other company try and claim copyright as the concept is similar expect theirs is an actual copy and paste job, they haven't bothered to try and create anything new with any artistic flair, am I good to sell my version of the frog on a log without any worry?

I'll attach some images below

My drawing



The copy and pasted meme but the've added happy birthday on it for some reason
Image removed to avoid third party copyright infringement - Moderator



P.S the original meme had similar wording to what is on both photos and I've added feet to my drawing as the original frog's feet are in the water but the copy and paste job by this other company has cropped that frog legs out.

Thanks for any advice and opinions

[AndyJ]

Hi tometoyou,

As you know there is no copyright in the idea behind a creative work, only in the expression of the idea. However I don't think the differences (ie your creative choices) are sufficiently original to make your expression of the idea different enough from the birthday card. Since I don't know how original the birthday card itself is - and from your description of the meme, it possibly isn't that original - you may be creating a situation which allows the card company to claim infringement, which will be stressful and time-consuming for you to deal with, even if they are ultimately unsuccessful in court. It is not just the image that you need to consider. There is copyright in the words, assuming again, they are original. I would be concerned that taking the image and the words together, the difference between the two expressions of the same idea are very small. Companies tend to be more forceful in claiming copyright infringement, even on weak grounds, because they have the financial muscle to pursue a claim to court, whereas you might not be prepared to spend hundreds of pounds on legal costs just to defend yourself.

By the way, I have removed the image of the birthday card from your posting because copying it here would itself amount to infringement - assuming that copyright does actually exist in that artwork. The exception for the purpose of criticism or review (section 30 CDPA) would not apply to the sort of discussion we are having here.

Possibly the frog which has been the subject of the most memes is Pepe, and even his creator is not averse to pursuing claims for alleged infringement: https://www.sott.net/article/413346-Jud ... t-Infowars

[Tometoyou]

Thank you for taking the time to offer an insight on how this could play out if such an incidence were to arise. If we were just to compare the two images of the frogs, could that still be putting me in a position of potential copyright infringement?

I say that because, if you go online, there's all sorts of pictures of frogs sat in this manner and frogs generally all have the same features, so if you were to ask three artists to draw a frog sitting on a log then you would probably get similar looking results, but the artist execution and style would all be different depending on how you asked them to draw it for example realistic, doodle, cartoon etc and if I'm correct it's that artistic expression/flair that is protected not that fact that it's a frog sitting on a log with it's hand on it's knees. So if you were to compare the two images, while the pose of the frog is similar, surely a pose can't be protected by copyright and neither the frog as it exists all over the world in nature? that would mean no one can draw a frog in that pose sitting on a log once someone else had drawn it or taken a picture of it.

However, are you saying that because of choice of words and the image of the frog together portray a joke that both the image and wording are substantiality similar to the overall humour/joke of the original meme? If so, in your opinion, what should I consider changing as I still want to use a frog portraying that overall theme. Should I draw the frog sitting on a bench with the hands by the side? Could the wording be changing to 'one minute you're young and cool and the next minute you're fresh out the shower looking into the mirror like this'?

Sorry to be a pain but I always try to understand copyright as best as I can because it seems like a mine field when you work in this industry.

[AndyJ]

Hi tometoyou,

First of all it's worth saying that my opinion isn't the important thing here. I am just as likely to be wrong about this as the next person. My point is that, the similarities appear to me to outweight the differences, and obviously both your drawing and the birthday card set out to convey the same meme and for substantially the same purpose. The problem as I see it is in your description in the original post "I seen the meme a few months back and have only just got around to drawing it from memory". In other words you had seen the earlier work and were deliberately copying the idea in it but at the same time trying to introduce enough differences for it not to be facsimile copying. By facsimile copying I mean, as if you had just photocopied the original.

I think the best way I can explain why I think this is problematic is to point you to a court case from about 11 years ago. It was known as the Red Bus case: https://www.bailii.org/ew/cases/EWPCC/2012/1.html.

The second issue concerns the likelihood that the card manufacturer would want to pursue a claim. Some companies are overly robust in protecting their intellectual property, while others adopt a live and let live approach. I have no idea which describes this company. And finally there are a host of reasons why there can be many other cards or products out there with similar images. One of which may be that some or all of these other creators will face a claim at some stage once the owner of the original work gets around to tracking them down. You have only to read some of the other threads on these forums to realise that people use images they found on the internet for years and years, flying under the radar so to speak, before they are finally tracked down and face a hefty claim for damages.

[Tometoyou]

Hello,

Once again, thanks for your reply and insight. I'll hang fire for now and maybe get a second opinion from an IP lawyer just to be extra safe. I may scrap the drawing entirely and choose a different character/animal entirely, there's so many ways I can reword the wording so that shouldn't be too much of a problem, but I really wanted to use the frog but maybe I could re-draw the frog laying down instead of sitting but I'll get legal confirmation first before I proceed any further and I'll go back to working on other projects for now.

Thanks for your help, hopefully someone finds the information here useful in the future. Once I hear back from an IP lawyer and report back with what their advice was.

[Tometoyou]

Update from a copyright lawyer -

''Based on your description, and looking at the photos that you shared, it seems like you have made substantial changes and additions to the original meme image, including modifying the frog's appearance and adding additonal finer details. These changes could potentially be seen as a significant creative transformation, which may provide some level of protection against copyright infringement claims.

However, it's important to consider a few factors. First, even though you have made changes, there may still be elements that could be considered original to the original meme image and protected by copyright. It's difficult to determine the extent of those elements without a detailed analysis.
Second, if the company you mentioned that is selling prints of the exact meme image could indeed own the rights or has a license to use it, they may have a valid claim against anyone else using a substantially similar image, even if they made minimal modifications to the original.

Regarding the words used in the meme, short phrases or slogans may be protected by copyright if they exhibit sufficient originality and creativity. However, copyright protection generally applies to the specific expression of the words rather than the words themselves. In the case of common phrases used in memes, it's less likely that copyright protection would extend to those specific words.

To minimise the risk of potential copyright infringement, it may be advisable to make further modifications to your design to ensure it is distinct and substantially different from the original meme image. Changing the pose or incorporating different elements, like using a toad instead of a frog, or having the character laying down rather than sitting would help make your design to be more unique. Additionally, using alternative wording or rephrasing the sentence could also reduce the likelihood of copyright issues.''