QUESTION

I am an artist who has been told they are infringing on a copyright by a company, however my work differs significantly from the original.

Asked on Mar 15th, 2012 on Intellectual Property - Washington
More details to this question:
I made a t-shirt that was inspired by the Hunger Games. Their logo is a bird with an arrow in its beak surrounded by a ring. Their rendering is realistic and looks 3D. I drew a design that used the same symbolism of a bird with an arrow and used a broken ring, but I also had flowers, wheat, a banner with a slogan on the front and fire with tons of paisley and other designs. The bird was made to look like a classic sailor tattoo with a lot of pattern, and even the arrow is a completely different shape and design. If you overlay the images it is obvious it was not traced, however it is inspired by the symbol of the Mockingjay pin. I was taught that something needed to be 80% different in order to be considered derivative, and I believe my art falls under this category. However I was contacted by Lionsgate (supposedly them anyway) and told that I was infringing on their copyright; am I?
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2 ANSWERS

There are several issues here that you raise, and no one can give you an opinion unless they see your work and the Lionsgate work to compare them. First, the myth that there is certain "percentage" of a work that can be used without infringing needs to be put to rest. The only way you can use someone else's copyrighted work without permission is if your use is a "fair use." Fair use is a judgment made on a number of factors, and at the end of the day only a court's opinion counts. Second, you mention "derivative work." If your work is based on a pre-existing work, then it is a derivative work and infringes the copyright of the underlying work if you did not get permission to make your work. The third issue you raise is whether your work is an infringement at all. Again, this is a judgment call. You do not have to make an identical copy to infringe a copyrighted work - you only need to make a "substantial copy." Either Lionsgate believes that your work is infringing, or else they are trying to bully you. If you choose to fight them, you should get professional assistance.
Answered on Apr 07th, 2012 at 1:56 PM

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Litigation Attorney serving Greenwich, CT
Partner at Hilary B. Miller
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There is no fixed percentage that needs to be "different" in order for your work to be deemed infringing. The legal standard is whether your work is substantially similar to the copyrighted work. This is always a question of fact. The more unique the copyrighted work is, the less of it you would have to copy in order to be an infringer. You will need to discuss your situation with a personal attorney.
Answered on Mar 15th, 2012 at 8:08 PM

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