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I know this is a graphic design forum and not a legal forum, but I'm guessing that some of you may have encountered this issue.

I would like to market a plug-in for graphic design software that produces images that are "in the style of" a well-known, still-living illustrator.

Would that be an infringment of the illustrator's intellectual property?

And more specifically, would I run into problems if I were to include the illustrator's name in the official description of the plug-in -- something like, "Create photos in the style of So-and-So"?

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Ask the artist. Doesn't matter how famous they are, get their mailing address and hand-write them a letter. They'll be flattered you took the time to contact them, and might even give you their blessing. If they have an issue, you can resolve it without worrying about being sued. Famous-people are still people. –  zzzzBov Jan 14 '11 at 21:57
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@Matthew Read, People are often spiteful jerks when they're not asked about how they feel. When they're included in the discussion, people will be a lot nicer. You're stereotyping. –  zzzzBov Jan 15 '11 at 18:39
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@zzzzBov If I'm stereotyping, so are you. I just happened to be negative. –  Matthew Read Jan 16 '11 at 2:32
    
Note that there are some companies that will take this to the utter limit: Scott (garden supplies company) will sue competitors over the color green on their packaging. –  horatio Apr 5 '11 at 15:22
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4 Answers

up vote 9 down vote accepted

No.

If your plug-in replaced the current canvas with a scan of one of the artist's paintings, or something, that would be copyright infringement. But an artist cannot trademark their "style". You can also use their name as long as it is not defamatory and you make it clear that they are not associated with it in any way.

Note: As with all laws this is jurisdiction-dependent. There are places with crazy laws...

Disclaimer: This is not legal advice, do not rely on my understanding of this issue.

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Yep, this is true in the U.S. There is a clause in trademark law that says you can use trademarks in a product name if it's required in order to describe that product. That's why unauthorized biographies, exposes, training manuals, critiques, etc. are all able to use trademarked names/titles in their own titles. –  Calvin Huang Jan 15 '11 at 4:07
    
"Trade Dress" is a concept in US Law that could be construed as protecting "Style". en.wikipedia.org/wiki/Trade_dress –  DA01 Apr 4 '11 at 19:51
    
@DA01 That would possibly apply to images produced by the plugin ... I don't see how it affects the plugin itself. –  Matthew Read Apr 4 '11 at 20:02
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If you use a person's name in any way that implies they are affiliated with, or endorse, your product, you're asking for a lawsuit. People have a legal right to control their own likeness and name, called "Right to Publicity." Specific laws vary by state, and you should check both your state and the state of residence of the artist, and any state you plan to make your product available in. You might find this link useful: http://www.citmedialaw.org/legal-guide/using-name-or-likeness-another. In many states it is illegal to use another person's name or likeness for your own benefit without their permission, even for non-commercial reasons.

But really this is common sense. Think for a minute: If it was someone trying to take your business away from you by making it possible for anyone to easily copy your signature style, without paying you for it or giving you a residual from sales of their product to compensate you for your own lost sales, and they had the audacity to even put your name on it so unsuspecting buyers think you are affiliated with it, how happy would you be about it? Unless you're working with the artist and offering them part of the profits for using their name, your only safe bet is to steer away from referencing them directly at all. Find some other way of describing the filter based on what it does or how the end result looks.

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+1 This is exactly why I would be very careful with this. –  Pekka 웃 Apr 9 '11 at 22:39
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This looks very similar to the infamous "look and feel" lawsuits lauched by Apple, most infamously against Microsoft. Apple's claims, that the holistic visual impression of a product can be copyrighted independently of the copyrightability of any of the particular elements, has AFAIK never been tested in a lawsuit, so you are in a legal limbo, although the judgements that touch on it have generally been somewhat hostile to the idea. I further think that the general style of an artist is harder to argue that the kind of design issues Apple were (and still are) defending, which were part of complex UI interactions, and could be said to have semantic significance from that role.

So there is some risk, but I say it is a risk a small or freelance graphic designer/outfit can take, provided:

  1. You are extra- careful about not infringing concrete copyrights or trademarks;
  2. If you do work on behalf of a client, you fully inform them of what you understand of the legal risks;
  3. You are in Delaware, right? You might still be exposed to laws of countries with harsher copyright regimes, like the UK;
  4. You are responsive to concerns raised by whoever you pay tribute to; and
  5. You check any legal intuitions you have with people who have the kind of legal expertise that aren't shared for free on Stack Exchange sites.

Furthermore, our culture would be a poorer place without tributes, so taking small, well-judged risks of this kind is doing something worthwhile.

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+1 for point #5. –  Sean Apr 5 '11 at 1:35
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I would be very careful with using the name of a living, well-known, commercially active artist. The painting style can probably not protected, but the name can. Artists and celebrities often trademark their name to prevent the sale of products in their name.

This is something I would definitely get written permission for, or have checked by a lawyer, first.

Example:

  • Bob Ross: ®The Bob Ross name and Bob Ross images are registered trademarks of Bob Ross Inc.
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Not sure why someone voted you down on this. I agree that including the name of the artist in the program description may be what gets you in trouble, not copying the style. –  ghoppe Jan 14 '11 at 20:23
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Here in the U.S., we have generic brands of products that often say something on the packaging like, "Compare to Tylenol," or "Compare to Cocoa Puffs." And then somewhere in fine print, there's a disclaimer: "Not affiliated with McNeil Consumer Healthcare" (maker of Tylenol) or "Not affiliated with General Mills" (maker of Cocoa Puffs). Clearly, those are trademarked brands ... and yet the generic products are allowed to use their names, so long as they make it clear that there is no affiliation. So wouldn't that apply to my plug-in's description, too? –  jawns317 Jan 14 '11 at 20:54
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Probably nobody here can tell for sure, as we are not lawyers. It's well possible that it's the way you say - it might also be a question of how it's put ("In the style of..." might be less problematic than, say, naming the product "BOB ROSSIFY") - in the end, only a lawyer can tell you for sure and this is close enough for me to think it would be a good idea to ask one. –  Pekka 웃 Jan 14 '11 at 21:41
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@Matthew I'd say it's a fair assumption to make on a graphic design site. You also don't mention any law background anywhere in your profile. If you have professional information on this (maybe with precedents?), then why not point that out in your answer? –  Pekka 웃 Jan 15 '11 at 17:40
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@Matthew I don't really understand what your quarrel is with me. If you can provide some solid info - say, with precedents - that this is okay, I'll happily upvote your answer and delete mine. Until then, being a layman with a bit of common sense, I advise to be very careful with a decision that can cost hundreds or thousands of dollars to roll back. –  Pekka 웃 Jan 16 '11 at 22:32
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