Blatant ripoff? Or "close to the line"? You decide
November 19, 2012 6:46 PM   Subscribe

Enforcing your visual copyright is easier if you register your work. Li Zheng taught fine art at Appalachian State 20 years ago, then began selling his paintings to galleries. After a hiatus in China, he returned to America to discover one of his paintings is being mass produced and sold at Kohl's, JC Penneys, and at least 2 dozen other retailers, including -- busted! -- "it's a steal!" Main link has original, copy, and describes his uphill legal battle.
posted by surplus (14 comments total) 9 users marked this as a favorite
>Enforcing your visual copyright is easier if you register your work.

May I just say "duh".
posted by spock at 6:56 PM on November 19, 2012

Hey, if Bob Dylan can get away with showing his crap at Gagosian, this guy stands no chance.
posted by phaedon at 6:56 PM on November 19, 2012

I'm not saying this is a good idea, but one /could/ order 999 copies of this from "art heist" and have it delivered to "You Suck, Alaska". They take personal checks.
posted by clvrmnky at 6:58 PM on November 19, 2012

Blatant ripoff.
posted by sfts2 at 7:06 PM on November 19, 2012

Blatant ripoff.

Yet somehow the law prof at U Va isn't so sure.
posted by surplus at 7:06 PM on November 19, 2012

The brushwork and colors were a messy and incompetent imitation of Zheng Li’s original Piano No. 9,” the lawsuit states, “but the underlying visual image was an exact duplicate.

It's incompetent and exact.
posted by ChurchHatesTucker at 7:12 PM on November 19, 2012 [5 favorites]

The copy might even simply be the original image passed through a filter like Gimpressionist.
posted by XMLicious at 7:38 PM on November 19, 2012 [2 favorites]

"The underlying visual image may be an exact duplicate," says the defense lawyer, "but the messy and incompetent part is what sells."
posted by weapons-grade pandemonium at 8:10 PM on November 19, 2012 [2 favorites]

A number of ceramics artists that I know of were refusing to display their better works for this reason. Too many copies (from China?) were showing up soon after works entered galleries that allowed photography.
posted by underflow at 8:26 PM on November 19, 2012

It looks like there's a whole industry of "coloratura" works by this fictitious entity "P Roberts."

underflow, would you elaborate on that? Are your artist friends actually encountering exact copies? How do they find out about them?
posted by charlie don't surf at 8:30 PM on November 19, 2012

Li can prove that he created his work first, but because it wasn’t registered first, it may cut down on the amount of damages he can receive.

There are really two things going on here. The first has to do with liability. The key is that copyright extends to specific expressions fixed in a tangible medium. It does not extend to ideas. So the question has to do with whether the "P. Robert" image is actually a copy of "Piano No. 9" or merely a very close imitation. The latter might not actually constitute infringement. But that doesn't have anything to do with registration, it's just a question of whether what's going on here is actually infringement at all. The only thing I can think of related to registration and liability is that registration does serve as evidence of when a work was created. But Li can probably prove that even in the absence of registration, so I'm having trouble seeing how late registration is going to hurt him here.

The other has to do with damages, and that's where the registration part comes in. I was recently involved in a copyright case where the copyright owner discovered the alleged infringing activity, sent a cease and desist, and when the alleged infringer didn't adequately satisfy the plaintiff's demands, registered the copyrights and filed suit.

I was for the defense. One of the first things we did was move to dismiss any claims for statutory damages, because the works weren't registered before the allegedly infringing activity began. This would have limited any damages to actual damages (and attorney fees, per the statute), far less than the $160,000 per infringement available under statutory damages. The plaintiff would have needed to prove exactly what the alleged infringement netted the defendant. As the works in question were something the plaintiff gave away for free, the absence of statutory damages could have taken a claim that could theoretically have been something like half a million plus fees down to something like fifteen bucks plus fees.*

We wound up settling before our motion to dismiss was ruled upon, but I'm pretty confident that the unavailability of statutory damages is what made the plaintiff willing to settle so quickly. He wound up getting two things: an injunction prohibiting further infringement and about two-thirds of his fees in a settlement check.

But the facts are a bit different here. In the case I'm describing, the alleged infringement had to do with a catalog. The copyright holder didn't actually give a fig about the work itself, as it distributes copies for free. In this case, the work in question is actively being marketed. Here, Li can probably argue that every copy by "P. Robert" constitutes a lost sale of his work, entitling Li to all the profits from every such sale. That could well make his actual damages bigger than what would be allowed under statutory damages. The lack of registration isn't necessarily going to hurt him here.

*Indeed, if fees weren't on the line, it's doubtful the case would have settled. To get anything in actual damages, the plaintiff would have needed to convince the court that every sale the defendant made during the period of infringement constituted profits to which the plaintiff was entitled. Given the facts, that was going to be an uphill battle. But because attorney fees are part of the statute, a $1 award of actual damages could have grounded a six-figure award of fees.
posted by valkyryn at 8:45 PM on November 19, 2012 [8 favorites]

Unfortunately, I don't have many details. Mrs. Underflow was part of the Boulder Potter's Guild. A number of members reported low quality copies (I'm assuming slip cast and mostly dip glazed) showing up at small "craft" shows and flea markets, soon after those pieces had been displayed in galleries and showings.

This all came up in a discussion on whether to allow cameras during the guild sales.

Were they exact, or were the artists being too sensitive? It's hard to say, but the timing was at least suspicious.
posted by underflow at 8:46 PM on November 19, 2012

Art wants to be free.
posted by spitbull at 2:26 AM on November 20, 2012

Do not anthropomorphize Art. It hates it when you do that.
posted by spock at 5:07 AM on November 20, 2012 [2 favorites]

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