Is It Copying Or Stealing? That Is The Question
You have seen it. The Grinch Christmas Photo Sessions, The Disney Princess or other Disney Character Photo Session and the wildly popular right now Barbie. I am sure that you have seen backdrop companies sell similar backdrops. Photographers using similar if not identical set ups for photo sessions. Red Truck Christmas Sessions come to mind, or Halloween Sessions. How many times have you seen someone with a pumpkin on their head running through a smoke bomb?
This brings me to discuss wings. Yes the feathered wings made popular by Victoria's Secret in 1994. There are a many makers and sellers of the wings. If you type in feather wings for photography in Etsy there are over 2000 results. Wings don't come in many different shapes so it is safe to say that most sellers of wings are going to have similar shapes.
We know that Disney and Suess Enterprises have issued Cease and Desist letters and have sued photographers for the unauthorized use of their company's respective Intellectual Property. What about the wings?
This was copied from a Forbes article from 2011:
Victoria's Secret successfully clipped the angel wings off a competing Brazilian fashion show citing copyright infringement and anti-competitive practices.
A Rio de Janeiro judge banned the Monange Dream Fashion Tour, created by model agency Mega, broadcaster O Globo and consumer products giant Hypermarcas (Bovespa: HYPE3), from using any similarities to angel wings made popular by the Victoria's Secrets "Angels" product line campaign that was launched worldwide in 1995 and remains a popular image of the lingerie brand.
Folha de São Paulo, Brazil's largest daily, reported that the judge, Maria Isabel Gonçalves, said in her judgement that Monange's show was too similar in look and feel to the Victoria's Secret show, "by the way it begins with popular music by famous bands, the outfit style and the runway show." At least two Victoria's Secret models from the Angel campaign, Adriana Lima and Alessandra Ambrósio, were part of the Monange Dream Fashion Tour.
That being said, are all of the makers of wings in violation of copy right infringement, or theft of Intellectual Property? Can one wing designer call out another wing designer for infringement on the design? Could Victoria's Secret potentially go after all wing makers and photographers for using wings in their photo sessions?
Where does someone draw the line? Does looking at someone's photos or website constitute malintent or is it inspiration? Does having similar wording on websites constitute theft? If so I am also a guilty party, as I have purchased wings, photographed wings and have had photos published. It definitely is a slippery slope for sure
Copying someone's photo props can potentially become theft of intellectual property when it involves the reproduction or utilization of unique and original elements that are protected under intellectual property laws. The key factor is whether the photo props in question are subject to copyright, trademark, or design patent protection. Let's break down each of these categories:
- Copyright: If the photo props are considered artistic creations, such as sculptures, drawings, or other original artistic works, they might be protected by copyright. Copying or reproducing these props without permission from the copyright holder could constitute copyright infringement. However, the threshold for copyright protection is originality, so common or generic props might not be protected.
- Trademark: If the photo props have distinctive branding elements, logos, or other marks that identify the source of the props, they could be protected under trademark law. If someone copies these props in a way that could confuse consumers about the source of the goods or services (i.e., creates a likelihood of confusion), it might lead to trademark infringement.
- Design Patent: If the photo props have a unique and ornamental design that serves a functional purpose, they might be eligible for design patent protection. Design patents cover the aesthetic, non-functional aspects of an item. Copying such props might lead to design patent infringement.
It's important to note that not all photo props will fall into these categories. Some props might be utilitarian objects or lack the required originality to qualify for protection. Additionally, if the original creator has released the props into the public domain or has given explicit permission for others to copy them, then there might be no infringement.
If you're concerned about copying someone's photo props and potential intellectual property issues, it's advisable to consult with a legal professional who specializes in intellectual property law. They can assess the specific situation, the nature of the props, and the applicable laws to provide you with accurate guidance. You can also discuss with the company or photographer that inspired you and ask questions. Not everyone has malicious intentions. Open dialog is the key