Copyright Maximalist Disney Accused Of Copying Artist's Painting On Cosmetic Bag

from the copyright-is-for-me,-not-for-thee dept

Tue, Apr 9th 2013 12:53pm — Mike Masnick

It is always interesting to see how the strongest defenders of copyright can often be found infringing -- sometimes in the most obvious ways imaginable. A bunch of folks have sent in variations on this story, concerning Katie Woodger, an artist who did a painting of Alice in Wonderland a few years ago, and later discovered that the same image was clearly copied onto a cosmetic bag that Disney is selling. Woodger also claims that a similar work is used on a t-shirt. Here's the graphic comparison she put together.

This is complicated on a variety of levels. I don't find the final image to be problematic at all, because (at best) you could argue that Disney copied the idea. But copyright is about expression, not the idea. As for the bag, it's clear that Disney copied Woodger's image, but even that raises some interesting questions. The original Alice in Wonderland by Lewis Carroll (Charles Lutwidge Dodgson) has long since passed into the public domain. The original illustrations by John Tenniel have also gone into the public domain. However, the popular Disney movie is still covered by copyright. You could ask a question as to whether or not Woodger's image draws on any of the copyright protected elements of the Disney movie, in which case her own copyright claims on her image may be limited. Still, even in that case, it would seem that there could be some copyright claims in parts of her creation and that certainly would not allow Disney to wholesale copy the image.

That said, it does feel a little bit shady for Woodger to complain about someone else using her image, when her image is clearly based on the work of others as well. That's how creativity works. Still, given Disney's general maximalist tendencies, it's telling that even it can be found to copy the work of others without permission. For what it's worth, there are lots of stories of companies pulling random designs and artwork that they find on the internet and placing it on t-shirts and bags and other products. It's just somewhat ironic to see it being done by Disney in particular.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: alice in wonderland, copying, copyright, katie woodger
Companies: disney

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Wally (profile), 9 Apr 2013 @ 1:01pm

Mike, is there a higher resolution version of the image you posted in the article? I might send my eyes over it to see if there was a mistake between the two.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 9 Apr 2013 @ 1:05pm

Blah Blah Blah
We all know how copyright works, "I touch it, I own it."
[ link to this | view in thread ]
sehlat (profile), 9 Apr 2013 @ 1:14pm

Remember the Corporate Golden Rule
When WE do it, it's fair use. When YOU do it, it's piracy.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2013 @ 1:18pm

i think the question to ask is 'what would Disney do if the situation was reversed? exactly!! to start with, they would go fucking nuts!! there wouldn't be any warnings, any banter, they would go straight for the jugular of the 'copier' concerned and there would be 'no holds barred' either!!
[ link to this | view in thread ]
Wally (profile), 9 Apr 2013 @ 1:24pm

Second thought....the image on the T-shirt is a part of the Disney animated version of Alice in Wonderland...it is a part of the story board and can be seen on the 60th Anniversary Blu-Ray of the 1951 classic.

So while I cannot entirely hold it against her on the bag...still trying to find where I saw that Image of hers last...She is definitely overboard about the shirt.

Anyone who has ever watched the Disney version knows about painting the Roses Red. I guess Disney's train of thought was transitive work fair use. The problem is that the work on the bag that was copied over was original it thought.
[ link to this | view in thread ]
Watchit (profile), 9 Apr 2013 @ 1:27pm

Re:
You can click on it to open a larger image.
[ link to this | view in thread ]
Watchit (profile), 9 Apr 2013 @ 1:35pm

Even if we set aside the problematic issues of copyright. Ethically, I think Disney is in the wrong here, for the handbag anyway. Is Disney really so short on talent they have to resort to profiting off of someone else's work? I'm fine with transformative work, but I can't stand it when someone claims another person's art as their own.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2013 @ 1:35pm

Disney's public domain for me and not for thee philosophy
It's the same thing they do in lobbying for retroactive extensions, they want the longer copyright but are fine with the fact that the shorter copyright terms of the past allowed their own classic movies to exist.
[ link to this | view in thread ]
Jessie (profile), 9 Apr 2013 @ 1:36pm

Response
Given her recent responses on her tumblr account, I'm more inclined to want to see her get some credit and compensation. She is stressing that she doesn't want Disney or the media contacted, and that she feels uncomfortable with the attention. Even though it is based on a classic character, in the painting she is painting the roses white according to her, as part of a different story she was trying to tell.

Either way, the idea may not be 100% original, but the work itself was. Just because she has stood on the shoulders of giants does not make her contribution worthless and open to theft.
[ link to this | view in thread ]
crade (profile), 9 Apr 2013 @ 1:43pm

Re:
Painting the roses red is right from the original Alice's Adventures in Wonderland. I don't know why she would think that tshirt picture is even similar. The other one is identical, so if thats actually her own painting I'd be surprised Disney would use it directly without permission.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2013 @ 2:07pm

Good for the goose, fuck the gander.
[ link to this | view in thread ]
Anonymous, 9 Apr 2013 @ 2:20pm

16 more days till Alice Day! ; )
[ link to this | view in thread ]
gnudist, 9 Apr 2013 @ 2:23pm

Re:
it's good for the goose to fuck the gander
[ link to this | view in thread ]
Andrew F (profile), 9 Apr 2013 @ 2:38pm

Pretty clear infringement on the bag
Woodger's original image may borrow from a public domain work or Disney's own work, but she's added plenty of unique copyrightable elements of her own, all of which is copied on the bag image.

Think of this way: fair use allows you to quote a book in a book review, but it doesn't allow the book author to copy the entire review wholesale.
[ link to this | view in thread ]
Beech, 9 Apr 2013 @ 2:43pm

Logical Disconnect
"That said, it does feel a little bit shady for Woodger to complain about someone else using her image, when her image is clearly based on the work of others as well. "

Wait just a second here. There is a SLIGHT (read: huge) difference between reading a description of a scene and illustrating it (aka, being BASED on the written work) and looking at someone's illustration and then straight up copying it onto their products (aka, total rip off). Copy/paste is not how creativity works.
[ link to this | view in thread ]
Chris-Mouse (profile), 9 Apr 2013 @ 2:50pm

You have to remember that copyright exists to protect the little guy. You know, the one with the big ears.
[ link to this | view in thread ]
Phillip (profile), 9 Apr 2013 @ 2:51pm

Re: Response
I agree, while the concept might be derivative, using her exact art - color is not really derivative its outright copying. I agree the t-shirt is perfectly fine but the bag seems highly questionable.
[ link to this | view in thread ]
Zem, 9 Apr 2013 @ 3:57pm

Time to Reap the Harvest
Don't complain to Disney, just go straight for the throat.

Based upon previous legal argument used by Disney and co themselves. Every copy of that hand bag, and ever digital image of that hand bag, is a separate infringement. Each one should be fairly due the minimum statutory damages. That's 10's maybe 100's of thousand dollars.

Get a well known, agressive, no win no fee lawyer and set them loose. As much as we all complain about copyright, it's there for us too and unless we all agressively enforce it against the big guys they will always assume it's for them only.
[ link to this | view in thread ]
ByteMaster (profile), 9 Apr 2013 @ 9:21pm

Scan
Everyone seems to have forgotten that when I use my scanner to make a digital copy from an 1880s magazine, itself long in the public domain, the resulting digital file apparently is under a brand new copyright.

So if someone creates an image based on "girl from the back with flowers" that won't stop you from making your own "girl from the back with flowers" but you can't just copy the exact same image... because if you can, there are going to interesting developments... how about sheet music? Photographs? etc.
[ link to this | view in thread ]
Greevar (profile), 9 Apr 2013 @ 9:50pm

That's how creativity works.
No Mike, that's not how it works. Remixing ideas into new expressions is creativity, what Woodger did was creative. What Disney did was plagiarism. Woodger has a right to be offended. They took credit for her work. Even a lowlife, pirating, copyright abolitionist like myself can see that Woodger is justified to complain about the handbag. The T-shirt, she has nothing to complain about.

Had you not known about Alice in Wonderland, would you have noticed there was a reference to it? No, you'd see a girl painting roses and nothing more. None of the elements in the image are particularly unique to Alice in Wonderland. Change the hair color, dress color, and rose colors. Now you have a new image.
[ link to this | view in thread ]
Ninja (profile), 10 Apr 2013 @ 3:28am

That's a double irony score. Disney getting called out on infringing copyrights by some artist that relied on other works to create hers. Poetic irony hah
[ link to this | view in thread ]
The Real Michael, 10 Apr 2013 @ 5:29am

Re:
Exactly. It doesn't matter that both works are based off an old story either -- that's beside the point. The point is that this artist created her own illustration which then Disney copied 1:1 on a handbag, which normally wouldn't be an issue ...except that they're profiting off it. Disney is definitely in the wrong here.

Had someone else tried to copy Disney's artwork and sell it, you know for a fact that they'd pursue legal action.
[ link to this | view in thread ]
Niall (profile), 10 Apr 2013 @ 5:30am

Re: Scan
I don't think that's 'transformative' enough, as it's going for an exact reproduction. Same as taking pictures of old public domain paintings - there has to be some element of change to add an additional copyright.

So if someone took a picture of the Mona Lisa and adds other photo-manipulations in, that picture can gain copyright and anyone copying that one is on the hook. But it doesn't suddenly mean someone has 'stolen' the copyright to the original.

Unless you are an art gallery of course...
[ link to this | view in thread ]
Anonymous Coward, 10 Apr 2013 @ 5:53am

Re: Scan
Well sorta.

Your scanned image is a new derivative work, and any new elements that are considered creative expression in that new work are protected under copyright.

To the extent that you just made an exact scanned image of a public domain work, however, there would not be anything new to protect. If I re-type "Romeo and Juliet", I don't get a new copyright. If I publish an annotated version of "Romeo and Juliet", then my annotations are potentially protected, but the original text would not be. Graphical images are less clear cut due to all of the aesthetic variables; photos were considered uncopyrightable for a long time (until 1884- see Burrow-Giles Lithographic Co. v. Sarony) but the court found that elements like setting and composition were eligible for protection.

The key point is that you would need to add something the court would consider protectable (i.e., new creative expression), and only those elements would be covered under your copyright.
[ link to this | view in thread ]
Anonymous Coward, 10 Apr 2013 @ 8:45pm

Re:
EVERYONE relies on other works to create new works. It's called being part of the culture and it's why eventually all work must go into the public domain. The point is that the artist created a new work by putting her own spin on the illustration of a work in public domain; Disney just stole her image and slapped it on a bag.
[ link to this | view in thread ]
Marsy, 12 Apr 2013 @ 2:03pm

Sorry but, you don't steal off artists full stop. Her idea may not be 100% original, but she's the one that drew, painted and put the time and effort in to creating the image. Why should Disney gain money off of work they haven't even done themselves?? That's just gross, and a massive middle finger to their fans in my opinion. It'd be at least common decency to ask for her permission first.
[ link to this | view in thread ]
nico78, 16 Apr 2013 @ 12:12am

It's pretty clear: a reproduction of the very artwork is a violation. Let's put it to the test and reprint T-shirts with the Disney version. I believe there would be immeadiate legal action from their side.
[ link to this | view in thread ]
David, 19 Apr 2013 @ 9:15am

How ironic. Disney is definitely wrong here on all levels. I wonder what made them copy someone else's art work. They sure have the money and the people to come up with original stuff for their merchandise.
victorian paintings for sale
[ link to this | view in thread ]
Pluto, 9 May 2013 @ 1:53pm

idea theft
The Disney corporation makes me sick.
[ link to this | view in thread ]
Laurel L. Russwurm (profile), 10 May 2013 @ 1:45pm

"That said, it does feel a little bit shady for Woodger to complain about someone else using her image, when her image is clearly based on the work of others as well."

Wrong. So long as the world in which we live constrains both creators and culture with copyright law, this is not remotely applicable.

Once we've abolished copyright, the Disney appropriation of her work without attribution could be considered a simple case of plagiarism.
[ link to this | view in thread ]