Just Because Two Things Are Similar Doesn't Mean One 'Rips Off' The Other

from the that's-crazy dept

I was recently alerted to the fact that comic artist Kate Beaton got quite upset at a guy named Chris Bouldin, claiming that he had somehow “ripped her off” with a graphic he had created for a t-shirt.




So, let’s take a look at the “ripoff.” Here’s Kate’s drawing:



And here’s Chris’s supposed ripoff:



Huh? Am I missing something here? They may be similar ideas, but otherwise they’re pretty different all around. As we recently pointed out, different people come up with the same jokes all the time, and it’s not a “ripoff” at all. Even if Chris had seen Kate’s original, his work is quite different, and hardly a ripoff in any way shape or form.

Repeat it with me: You cannot own an idea.

And yet, so many people like to think they can, even when it’s a totally simplistic idea that lots of other people also likely had. And, apparently blogs are springing up to “call out” people who “ripoff” others. First, in the comments to Kate’s complaint, someone suggests submitting the story to You Thought We Wouldn’t Notice, which is a blog that tries to call out and shame cases where they believe there’s been “a blatant rip off of a creative work.” And, just as I was going through that blog and shaking my head at the sheer disingenuousness of it, Parker sent over a very similar (if much more obnoxiously named) blog, Copy©unts. That one mainly focuses on ad agencies doing things similar to what others have done.

Now, to be clear, I’ve always pointed out in the past that sometimes shaming someone for blatant copying can be much more effective than reaching for the old “copyright” claim. You only have one reputation (it’s a scarce good!), and if it goes bad, there are consequences. That’s why social pressure can be much more effective than a legal attack to deal with questionable behavior.

But, here’s the thing, these sites and efforts really seem to stretch the definition of what’s “questionable.” As seen in the very example up top, just because two people have a similar idea, that doesn’t mean that one is a “ripoff” or that the person should be shamed. Lots of people have similar ideas, and even if one person is inspired by another, taking a stab at doing something different and unique around the same theme shouldn’t be seen as a ripoff at all.

Certainly, some of the items that appear on both blogs do appear to be clear attempts to appropriate someone else’s work in questionable ways and I can see how naming and shaming them might make some sense. But a lot of them really just appear to be similar ideas, or even very different attempts to build on a good idea. Take, for example, this post, which compares a bit of artwork of a little boy crying, with an advertisement that includes a boy crying:




Again, I’m at a loss here. Yes, they’re both boys, and there’s a blue background in both images… but that’s about it. Suggesting that one is a “copy” of the other seems ridiculous.

And that’s where these things start to become so troubling for me. They seem to become less about calling out misappropriation situations, and much more about pretending that an idea can be owned. Unfortunately, efforts like these merely perpetuate the myth that you can own an idea (even if others come up with the same thing independently). And that’s really troubling.

Hell, if we’re going to go down that route, can’t we just say that one of these two blogs “ripped” off the other? After all, they seem to have the same basic idea, and the posts actually have a very familiar feel to them. So, damn it, what a ripoff! Everyone complain to one of these sites about how the other one “ripped them off!” It’ll be so meta.

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Comments on “Just Because Two Things Are Similar Doesn't Mean One 'Rips Off' The Other”

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72 Comments
John Doesays:

I own the idea that ideas can be owned

I hereby declare that I own the idea that ideas can be owned. Therefore, anyone who thinks ideas can be owned owes me a royalty. No, scratch that, it is mine so I am not sharing because I don’t want anyone else thinking ideas can be owned.

Seriously though, I had an idea for a product one time. It was something I have never seen on the market but needed myself. It is something a lot of people could use. So I did a little digging and sure enough, I found a patent application on a product very similar to what I wanted. But guess what, nobody is making it as far as I can tell. I haven’t seen one on the market in the several years since I found the patent application.

So there I am, with an independent invention but someone beat me to filing the patent and now nobody has the product because I can’t market it and that patent holder apparently isn’t marketing it either.

Anonymoussays:

The problem here is that I can see where the “new” work is just a variation on the original. It has the same layout (big word to the top, character with speech balloon in the middle, crazy tag at the bottom), and the things are in the same order. They also have the same sort of type face, design, etc. It is very easy to see the duplications.

I would even go so far as to say that the person who made the new design very likely saw the old design and just decided to play with it. The new deal is just way too remarkably similar to the original to be much of anything except exactly based on it.

The kid crying images are very different, they don’t have very much in common except “kid crying” and perhaps a particular filter used in photoshop – and that filtering is to pay homage to a very old style look back to maybe the 30s advertising images. They aren’t really the same at all.

The cartoon / t-shirt design has significant similarities on all levels (layout, overall design, font, ordering of items, phrasing, etc). The photos do not.

E. Zachary Knightsays:

Re: Re:

The problem here is that I can see where the “new” work is just a variation on the original.

That is not a problem. There is no law against being inspired by someone else’s work. The two works are different enough that a lawsuit would not make it passed filing.

As Mike said, you can’t own an idea, only the expression of the idea.

Anonymoussays:

Re: Re: Re: Re:

“The two works are different enough that a lawsuit would not make it passed filing.”

Not sure about that. Original selection/coordination/arrangement of elements that are themselves unprotectable is considered protectable expression.

I could definitely see this case getting past a motion to dismiss or a motion for summary judgment (not that it would be worthwhile to spend that kind of money/effort on it).

Anonymoussays:

Re: Re: Re: Re: Re: Re:

I would agree with you. Moreover, I think that Mike really does agree:

http://www.techdirt.com/articles/20110620/04343514759/disney-when-we-copy-its-inspiration-when-you-copy-its-infringement.shtml

If this is enough to try to hang Disney, this near cloning of a t-shirt design is pretty obvious, no?

I could see this making it well past filing, and likely not even getting an early dismissal. There is clearly more than enough here to show that the design, layout, and overall tone of the original was lifted.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re:

That was the first article I thought of when reading this article.

However, several people pointed out in the Disney thread that the “point” wasn’t really that Disney copied, but that they would supposedly get all litigious if the roles were reversed (although, of course, the allegation of copying was one of the points in the article).

Notably, I don’t think Mike was one of those people, and claimed the notion that the cars weren’t so similar as to indicate copying had been “debunked.”

Any way, calling Masnick out on his biases and double standards doesn’t get him to engage in any self reflection and most of the commenters just rush to his defense, so whatevs.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

I can’t tell which of you is dumber the original poster or the Anon Coward responding.

1. You can’t own an idea.
2. Mike didn’t write the post you linked to.
3. The post explicitly states that using the car as inspiration isn’t a problem.
4. “calling Masnick out on his biases and double standards doesn’t get him to engage in any self reflection and most of the commenters just rush to his defense, so whatevs” Fuck you, go away. I’m GLAD people defend this site from idiots like you. Neither of you idiots got even 1 fucking fact straight before getting your panties in a bunch. Go somewhere else and bitch about how no one follows your convoluted logic.

Anonymoussays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

  1. Nothing I wrote implies that you can. However, patents can give you exclusive rights in “ideas” (depending on your terminology).
  2. No kidding. But he did comment on it, which is what I said.
  3. But it does accuse Disney of copying based on similarities of common features, regardless of whether it says it’s a problem or not.
  4. You might want to get your own facts straight before writing comments like that.

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

I think that while the article does call it copying, it makes a strong distinction: Disney did nothing illegal in the act.

On your third point, from reading the comments and the article, I gleaned that the author’s point is that the similarities between the cars are of design elements that can have wildly different interpretations; for example, the disconnected front wheel arches. This is a very unique design direction.

On a side note, while the wheel arches are rather puzzling, I’m still not sold on the cartoon car having been inspired by the real car.

In the above cases, anyone who’s ever spent time on websites dedicated to internet memes knows that phrases like “It’s Crazy,” are literally everywhere. Moreover, rough doodles are also everywhere. It’s simply a style. A VERY popular one. There is a distinct possibility that the two artists have never even seen each other’s work.

I am also a photographer, and my sister just graduated from photography school. We know our stuff. The two pictures are done in similar styles, but that means nothing. Barring Photoshop editing, there are only so many styles in which one can photograph. At a recent gallery show, there were many photographs that were lit and post-processed in a similar way.

Just to prove this, I went to Dreamstime and iStockphoto and looked up stock photographs of “Boy crying.”

I found DOZENS of photos by dozens of photographers selling boys on blue backgrounds, in similar poses, a few even had the same high-contrast effect applied. But, again, coming from a photography background, that effect can be applied to any photograph in a few minutes with Photoshop. It simply makes the photo “punch” a little more.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

I’m not sure if you’re attributing the right quotes the right people. I distinctly remember the author of the Disney article (Dark Helmet) saying he did believe that Disney copied from the real car (both implicitly in the article title and explicitly in comments). Moreover, I’m not sure if his point had anything to do with legality or illegalty, but whether is was good or bad. In other words, I think he said there’s nothing wrong in his mind with that sort of “inspiration” (which is not the same as whether it’s legal or illegal).

Also, legal or illegal is not really the topic of my comment here. I think it’s a poor case for copyright infringement (although I don’t think it would get dismissed initially).

I do think that this article and the Disney article demonstrate different standards being applied to the same issue: when does similarity indicate copying?

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

I went back and re-read the article to make sure I got everything right.

Dark Helmet, Tim, did say that he suspected copying. I used the term “illegal” since he was talking about law suits and Disney suing itself, and of generally legal things.

He then said “the issue is not that Disney used a real life car as inspiration,” indicating that he specifically thinks that there is nothing legally amiss with what Disney did.

I also do not think that different standards are being used. Essentially, he’s using the metric of “is the aspect of the work being analyzed of a unique enough character that the likelihood of it having arisen from external elements very low?” If yes, then inspiration or copying has likely occurred.

This post is arguing that the above mentioned examples do not pass this test. And even if they did, the previous article is arguing “so what?” I think that the logic between them, while being belligerent and derisive, is consistent.

dwgsays:

Re: Re: Re:5 Patents

I’m sorry: did you just say that patents can give you exclusive rights in ideas? I’m going to ask for a citation for that, because it’s exactly wrong, and I’d love to hear why you think you can defend what you said aside from your bogus “depending on your terminology” throwaway. Yes, “depending on your terminology” one could argue that copyright, trademark and patent law ALL protect exclusive rights in ideas–all you have to do is define “ideas” to mean “expressions of ideas” and you’d be right. Otherwise, utter fail. Again: citations please–after that, I can continue to school you.

Re: Re: Re:2 Re: Re: Re: Re:

It’s NOT enough to hang Disney. The article wasn’t making that argument. It was highly derisive of Disney specifically because Disney has been so litigious in the past.

Moreover, I don’t see this as a “near cloning” whatsoever. The styles are similar and the wording is similar, but that means nothing.

Go to any of the I Can Haz Cheezburger websites. Phrases such as “It’s crazy” explode into memespace very quickly and organically. These two artists may have never come in contact at all.

Finally, the “rough doodle” look has been popular and around for a LONG time. I remember posters with similar art on them back in elementary school, which would have been the early 1990’s.

Are the two works similar, yes, but they may not be connected at all. Instead, the inspiration for both works sprang from the same external systems of society and the internet. Whether it’s a copy, inspiration, or anything doesn’t matter. If it’s possible and even likely that multiple people would have had similar ideas, then we can’t make accusations.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

The article/author did indicate that the similarity in the Disney case indicated copying, though (even if he doesn’t think that’s necessarily bad).

I agree with your conclusion that these two works might not be connected at all (or they might be). But people (including the author, Masnick, and other commenters) seemed very, very reluctant to accept that possibility in the Disney case.

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Oh certainly, Tim was definitely, unequivocally saying that he suspected copying.

And they make their case in the comments that they suspect this because the details between the two cars are highly coincidental for such specific elements as disconnected front wheel arches, which is certainly a very unique design touch.

I also think that Tim and Mike were annoyed in the Disney article because a number of commenters latched onto the copying element and whether there was any veracity to that argument while missing the point with which they were actually trying to attack Disney.

Jaysays:

Re: Re: Re: Re:

“As Mike said, you can’t own an idea, only the expression of the idea.”

It seems more and more that people are trying to own the ideas, less so that expression.

There was just the recent post about Paramount C&Ding a 3D printer pirate.

Sony believes they own all rights to the PS3.

And every company out there right now in the music industry believes they own all rights to making money in the digital era.

It’s quite stunning that such diversity in art forms can’t be explored because everyone believes only their ideas (expression or otherwise) is of paramount importance to their own well being.

Prisoner 201says:

Re: Re:

“The problem here is that I can see where the “new” work is just a variation on the original. It has the same layout (big word to the top, character with speech balloon in the middle, crazy tag at the bottom), and the things are in the same order. They also have the same sort of type face, design, etc. It is very easy to see the duplications.”

Bettr not to be make T-shirt of teh lolcat.

It can haz much sue.

Marcel de Jongsays:

Re: Re:

How many people were inspired by Van Gogh?

Or to use a more recent example, by Bob Ross?

Being inspired by someone is something COMPLETELY different from making a copy.
A copy should resemble the original a lot more than the examples shown here.
The figure on the t-shirt is different than the one in the cartoon, the text is similar but not the same. So, it’s not a copy, one might be inspired by the other, but there is no clear proof of that, nor is that illegal. People are inspired by others all the time, hence the saying “standing on the shoulders of giants.”

For instance, Edison wasn’t the first to think of lightbulbs. He was just quicker in filing for a patent. And Edison was a bully and a blowhard. He stifled a lot of progress with his patents.

And if scientists couldn’t built upon other people’s ideas, gravity would still be a mystery to us, other than that apples can fall on people’s heads.

Any Mousesays:

Re: Re:

Well, let’s break this down:

1st picture:
– Blonde hair
– Green eyes
– Ears stick out
– Mouth open
– No shirt

2nd picture:
– Brown hair
– Blue eyes
– Ears back
– Mouth closed
– Shirt

So, the similarities? They’re both sad boys on a blue backdrop. Even the flare points aren’t the same. What other similarities are you seeing?

Anonymoussays:

Re: Re: Re: Re:

Pointing out dissimilarities is irrelevant to the existence of similarities (unless you think there is a finite list of “things” that can be pointed out about the photos and you’ve actually addressed all or nearly all of them).

Also, I’d say the kids’ hair color and eye color is similar (not identical, but not “blonde v. brown” or “blue v. green” either).

Additionally, both subjects are young boys; both backdrops are of a similar shade; both backdrops are lighter behind the subject and darker nearer the edges; both subjects have similar lighting/highlights at their temples/sides, both subject have sad expressions, the filter used looks to be the same (though I’m not a Photoshop expert).

Anyway, not too big a deal, but anyone saying the only similarity is a sad kid on a blue backdrop is either not very perceptive or not being completely forthright.

Again, I’m at a loss here. Yes, they’re both boys, and there’s a blue background in both images… but that’s about it. Suggesting that one is a “copy” of the other seems ridiculous.

I basically agree with you, but there’s more similarity to the two “boy crying” images than you mention. The lighting is very similar, as is the use of HDR. Well, I’m pretty sure the first image uses HDR. The second one, I’m not 100%, but if HDR wasn’t used, it’s lit in a way that produces a similar result–as if somebody wanted to create an HDR effect but didn’t know how to do HDR. As for the lighting, notice that the background isn’t just flat blue, but there’s a highlight creating a halo gradient behind the boy.

I’m not trying to make the argument that the second image owes anything to the first image. Even if the second image is explicitly copying the first one, nothing should be owed. I’m just saying that the similarities between the images are more than just “a boy crying.” What makes the first image distinctive, to me, is the lighting and the use of HDR, which is still a new enough photographic technique that it stands out.

Vsays:

Review Time

Let’s review the dissimiliarities…

Background – one is green, one is navy

Font color – one is yellow, one is white

Color scheme – one uses two colors (green/yellow), one uses 3 (red/navy/white)

Font style – while similiar, notice that one is a combination of upper and lower case, while the other is all uppercase

Subject Matter – Reading vs Earthquakes

Cartoon Subject – stick person vs cracked cartoon figure

Offensiveness – one uses an offense word, one doesn’t

Overall, I would have to say that the only similiarity is… they both have the word crazy in them and have a cartoon drawing.

Personally… I find earthquakes much “crazier” than reading… tho some stuff I’ve read is pretty crazy.

freaksays:

It goes a bit farther than the article indicates, (Before I go on, I think that the copier in this case is doing so perfectly legally).

For one, that guy’s site has been constantly attacked for constantly copying other people’s ideas.

For another, it wasn’t Kate Beaton looking around and finding that shirt, it was quite a few people emailing her to inform her her shirt had been copied.

For another, when she inquired, (and this is the part she’s angry about), the site owner replied back with basically: “Fuck off, I’m tired of being accused of copying, I changed the background colour and subject” (Which implies he was familiar with her shirt, and that this type of complaint has occurred multiple times)

Let me sum up:
He DID rip off her art, he does so to other peoples art and ideas all the time, he’s very rude about it, and I think he is correct that he is not infringing on anyone’s copyright.

freaksays:

Re: Re:

On the argument that it is infringement, it DOES hurt the target market of the original shirt a lot of the time when he rips off the shirts. The effect has been statistically shown before by some webcomic artist somewhere before, and I’d link to that if I remembered exactly who.

OTOH, that’s what, one of four possibilities for fair use IF we do think it IS infringement? (Which again, I don’t)

UriGagarinsays:

Hp ad

Hmm well the style of the picture isn’t particularly unique – more 30’s drawing done with a photo .
Plenty of others have done the same. besides a picture of a sad boy doesn’t mean anything without the tagline.

Personally I don’t really see the copying, similar idea yes, copied no – its not that original and HP has a history and a brand that harking back to the 30’s style is not out of character – besides framing is wrong and the background colour is pretty much the same as the label’s background colour – and its been that for at least 20 years .

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