Toy based on my artwork without permission (advice, help?)

[sepp.livejournal.com]

Hello everybody, I am in need of some advice. This is kind of a weird one.

As a little backstory, I am a moderator on a dinosaur toy forum. We review dinosaur toys, collect them, post pictures, and engage in general discussion. We are right on top of new releases, so we're very aware of all new products introduced into the hobby. This is how I found out about this whole situation.

So, continuing on; in June 2009, I was commissioned by a friend (who happens to be on that forum) to draw a Therizinosaurus. It turned out great, he was happy, I was happy, that was that! Fast forward to literally an hour ago. I was notified on the dino toy forum that one of the newer toy-producing companies, GeoWorld, released a Therizinosaurus toy this year. The pose is based on my drawing from 2006, and it's 95-99% the same pose. The colours are not the same, but I am quite surprised since I hadn't heard a thing about it before now.


GeoWorld is unfortunately known in the dino collecting community for copying other more well-known companies' toys and poses. From what I can personally tell, nearly 25% of their catalog is based on another toy. I assume that since the painting is different on each of the copied figures, they can skirt by the copyright issues.

Here's some pictures to give you a better idea of what I'm talking about:

My original drawing.

The catalog photo of GeoWorld's Therizinosaurus.

You can of course see that the colours are not even remotely close! But the pose is almost exact. The tail is further to the ground on the toy and there are tiny details like length of claws and position of toes that are off.

Here is GeoWorld's 2014 catalog. The Theri is on page 36.

I am in need of some advice. I have never ever been in this situation before. My initial reaction was absolute flattery! But at the same time, GeoWorld never sent me an email to seek my permission, or even notify me. I'm at a total loss, and taken completely off guard! What do I do? Should I seek compensation? Should I just let it go? I would appreciate your feedback so very much.

Comments

[banrai.livejournal.com]

Unfortunately, you can not copyright a "pose", and in this case I don't know what you can do about it. Inherently it's the animal just standing there with it's arms at a resting stance, with it's mouth open... If they were aware of your work, it's definitely not right, what this company has done... but as far as recourse? You'd have to prove it, and even so, I can only think of one thing.

Call them out on social media, make the biggest stink about it you can. More often than not in situations like this, the power of the public is enough to get companies to pull this kind of stuff down. :/

[dinogrrl.livejournal.com]

Yeah, this. Unfortunately, companies like this one only care about legality, not ethics, and legally they've done nothing wrong. You might get lucky if you can pool together other artists/companies they've stolen from and get a good lawyer, but otherwise, I agree with the public shaming. If you know of other examples of where they've done this, post it along with your own story (with the artists' permission, of course).

[sepp.livejournal.com]

From what I can tell, their other toys that are ripped off from other sources are based on actual toys made by other companies. Big ones like Schleich, Wild Safari, and CollectA. In retrospect, I should have realized that if those big companies can't get GeoWorld to pull the designs that they took from their toys, I likely do not have any ground to stand on with my little drawing!

Though I was pretty emotional when I wrote this journal, and now that I have had time to reflect, I do see that there's nothing I can really do.

Thanks for your reply :)

[sepp.livejournal.com]

Yeah, I know poses cannot be copyrighted. I'm just miffed that it's so close to my drawing, you know?

I think calling them out on social media is a valid route. Thanks for your reply :)

[gatekat.livejournal.com]

As skeevy as this is, you can't copyright (or any other protection) a pose. Even if it was a perfect 100% copy of the pose you used, there is nothing protection-worthy about a pose, any pose.

So let it go.

[sepp.livejournal.com]

I do know that poses can't be copyrighted, for what it's worth :)
I was just thinking that if this were a painting or another drawing, it would have been heavily influenced but I would have some ground to stand on. Since it's a sculpture I had hoped I would have a chance at the argument that they referenced my drawing for profit without permission. If that makes sense?

I really apologize, I didn't mean to make it sound like HEY MY POSE IS MY POSE AND BELONGS TO MEEEEEEEEEE C C C C!!!?

Thank you for your reply :)

[funkicarus.livejournal.com]

i think because they did a different colour scheme you might be outta luck :< that sucks that toy is totally a ripoff of your pic

[sepp.livejournal.com]

That's what I was afraid of - plus the others are right, I didn't realize it but it all does boil down to me basically saying they copied my pose! I certainly know poses can't be copyrighted, but still the similarities really do bother me.

[maxi.livejournal.com]

Agreeing with the others here, unfortunately. Plus just a quick google search of the dinosaur leads to a bunch of images in a similar pose (standing, arms down, mouth open).

[sepp.livejournal.com]

Oh yeah, dinosaurs in paleoart are almost always drawn mouth agape in the middle of letting loose a big roar! And you're right, it's a common pose for Therizinosaurus illustrations. The thing that stood out to me were the head, neck, arms and hands being the exact shape I drew them.

I actually agree with the others here as well, now that I have had some time to think about it. I was just in such a huff when I posted I guess I didn't consider if I was getting upset over something I legally can't control :)

Thank you so much for your comment!

Design patent FTW!

[greenreaper.livejournal.com]

You could possibly have filed for a design patent (//en.wikipedia.org/wiki/Design_patent), had you planned to make a toy out of it, or believed that someone else would. But who can predict such things? Also, you'd have had to shell out ~$400 to get it issued.

If they did use it, at least you know your designs are toy-worthy!

Re: Design patent FTW!

[sepp.livejournal.com]

Oh man, hindsight is 20/20 if you don't mind the cliche XD

Though in the long run, it's absolutely not worth it to invest in design patents for all my artworks :)

[armaina.livejournal.com]

Unfortunately, due to the changes in the colors, patterns, as well as body shape, it's too different, I don't think you'd have a case for a claim. You could try to pursue it, but I don't think you'd win the case.

Like it's obvious they too it as a reference, but the changes keep it within the legal means of derivative works.

[sepp.livejournal.com]

I don't think I could win a case either, but I'm still contemplating if it's worth a try.

[epiceternity.livejournal.com]

To be honest, you would need to get in contact with a professional legal company who knows about toy design rights to get accurate advice as most of us here aren't copyright/patent lawyers. It's a bit more complicated a the case is a combination of art copyright and toy design patent so isn't straightforward.
However agreeing with other here that it might be difficult to gain any rights to the product as even Disney often can't win cases against knock off toys of their characters if the toys are deemed to have a slight dissimilarities. (which is probably why they can get away with copying other companies dino toys). You would have to prove without a doubt that they intentionally copied and that the product is exactly the same which would be extremely difficult. Sorry I can't be more positive!

[sepp.livejournal.com]

Yes, you're absolutely right. And don't worry about not being so positive, I've realized by now that the outlook for me in this situation is bleak at best!

Thank you for your reply. I appreciate it.

[epiceternity.livejournal.com]

No worries, i'd be really upset too if it happened to me! But it sounds like you'd need specialist advice on it as I wouldn't want someone to tell you wrong here!

[thaily.livejournal.com]

Holy shit, and that is a terrible looking toy to boot. You couldn't get ripped off by Schleich or Papo? At least then the rip would look good :/

But while you can't copyright a pose, there is such a thing as derivative products and I very much advise you contact a professional lawyer about this. A simple cease and desist might suffice, but these people are gonna need legit legal papers I suspect.

I know that in the US there are some lawyers who will give advice pro bono on the topic of copyright and trademark, but you'd be better off asking Americans about who and where. I think the Graphic Artist's Guild Handbook of Pricing and Ethical Guidelines has information on that topic in the back.

[sepp.livejournal.com]

Oh man, thanks for the info! That's really helpful. :)


And yeah, ahaha, Papo or Schleich would be a couple of the toy companies I'd be glad to have influence on some designs XD Though I don't design dinosaurs for Jurassic Park so I think I'm SOL there!

Thank you so much for your reply :)

[thaily.livejournal.com]

No problem, hope you can find some kind of satisfactory resolution.

[huskie666.livejournal.com]

Make a Tumblr post calling them out, reblogs will be viral. At least spread awareness.
It's totally copied. And surreal as hell :S kinda cool tho..lol

[sepp.livejournal.com]

That's a good idea. I'm more comfortable on Tumblr than Facebook for one thing. The other being Tumblr's kind of infamous mentality of JUSTICE OR ELSE!!! if you know what I mean, haha.

And yeah, super surreal! I'm half really flattered and amused and half frustrated.

[dirtiran.livejournal.com]

While my issue was slightly different to this issue (as they were much more blatant in their thievery.) I can say with certainty, that after my run in with Calgary Cosplay and the complete circus that was born out of it after...its best probably to let this one go.

As Huskie above mentions, I found the best way to deal with it is to just let people know what's happened, as you have done here. That way they can make their own decision if they wish to support these people or not.

Also, love that artwork btw!

[sepp.livejournal.com]

What happened with you and Calgary Cosplay? D: If you don't mind me prying.

I've got a couple of options to handle this situation - posting publically and looking into a case on it being a derivative product. Otherwise, I still don't think I have a leg to stand on - if those two methods do not work out, then I'll be at least content that I tried.

[sepp.livejournal.com]

Ohhh nono I looked it up in the tags, now I remember your entries. That was... awful :(

[dirtiran.livejournal.com]

Yeaaaaa, it was a right pain! And they sound like good ideas to try :)

[meirro.livejournal.com]

Unfortunately they followed the 20% different rule as well. So even if you can prove they used your artwork for the concept, they changed enough of it that it won't hold up in court.


However i bet you could get away with using it as a portfolio piece by saying "products generated off of my concept art" or something. Yhough if somebody fought it they can basically tell you to stop saying that, but it might be an interesting way to get them to respond to you. That way you can have them prove what their concept art looked like

Just chiming in:

[metallik-hasse.livejournal.com]

The 20% Rule is actually a myth, here's more information on it (http://drawsketch.about.com/cs/resources/a/copyright_2.htm).

[lovegonnadrown.livejournal.com]

I can't really add anything of value here beyond agreeing with everyone else about there not being much you can do. I'm sorry, it sucks to get ripped off like that. :(

But I wanted to ask... a forum about dinosaur toys? That sounds awesome and I'd love a link if you're be so kind. I've spent hours in the local natural history museum gift shop debating with myself over which sweet dino toy to get and I wasn't even aware it was like a legit hobby people were into!