Intellectual Property

Be Just Like Me: I'm Like Everybody Else

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These images are totally different because one only has three cats

Students of artistic copyright, aficionados of the Emily/Rosamond infringement controversy, and little-girls-with-bangs fetishists (maybe you're all three!) will be interested in the unfolding of the lawsuit over Rob Reger's popular brand.

This juxtaposition of images and text snippets surfaced in December. On the left, an illustration by Marc Simont for Marjorie Weinman Sharmat's 1978 book Nate the Great Goes Undercover; on the right, a 1991 logo of Reger's Emily the Strange, the creepy 13-year-old who has a booming international franchise in clothes, comics and other crap, along with a movie in the works. Neither Sharmat nor Simont had heard of Emily prior to that, and Reger offered a lame excuse in response. Now Reger is arguing in U.S. District Court in San Francisco that Sharmat and Simont should not be allowed to sue him.

SF Weekly has details of the court case:

The lawsuit reads like a primer on 20th-century goth girls, and submits as evidence pictures of Elvira, Vampira, Wednesday from The Addams Family, Lydia from Beetlejuice, and manga characters. "For many decades," the lawsuit states, "a common cultural motif that has appeared in many creative works involves a woman or girl with long dark hair, possibly bangs, and dark clothing who is associated with the macabre, occult, mysterious, or strange, and is sometimes accompanied by creatures such as bats or black cats."

According to the Weekly, this argument undermines Emily's main selling point: that she's a DIY nonconformist who copies nobody. Probably true, but the whole controversy indicates what a vain pursuit nonconformity is in an economy where even huge brands enjoy only fractional market penetration. In my world, Emily is a pretty ubiquitous presence, in stores and on clothing, in bars and cars, everywhere. Yet the originators of her original—people who presumably pay some attention to popular culture—had never even heard of her during her nearly two-decade career. (One of these days I'll tell you how I invented the Sexy Catholic Schoolgirl look with a now-lost series of fourth-grade stroke drawings of my favorite classmates.)

Maybe Shepard Fairey can get involved in this dispute, if punk-ish logos ever help us elect a Goth president (and isn't it time?).

NEXT: "Discussion about Roe v. Wade will—and must—be part of this nomination process"

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  1. Russ Roberts has a new podcast on IP over at EconTalk.

    I’m still on the fence I guess on a lot of the copyright and IP stuff.

    The author Roberts interviews sets up what is possibly a false premise by going right to what is best for the society as a whole. But so what if loose IP laws help boost cheaper competition? Everyone gets a cheaper widget, but the inventor or innovator still has some form of property at stake here.

    If I own myself; my own body, my own labor, etc, how can I not lay claim to my own ideas? Are they suddenly part of the commons as soon as I publish something?

    The flip side is of course the very broad interpretation of patents and such. This book in 78 didn’t invent goth of course, but this particular case seems to be a slam dunk in the author’s favor.

    So I’m looking for balance, but we probably won’t get it.

  2. You own your ideas and expressions… until you give them to someone else.

  3. stroke drawings

    Does this mean what I think it means?

    You own your ideas and expressions… until you give them to someone else.

    Even this phrase is open to multiple interpretations.

    Tim (if I can call you Tim), I like your points on pop culture…even most soi-disant eccentrics are capitalists at heart. I’m sure Van Gogh would have sold those paintings for obscene profit if he’d had the chance.

  4. But there’s a different number of cats, her feet are at a different angle, different shoes, different name and a couple of different adjectives…how can they claim I stole their work?

    christ

  5. help us elect a Goth president (and isn’t it time?).

    Yes. If not goth, at least emo (this kind of thing is why the framers put that age requirement for the presidency, I imagine).

  6. Of course then there’s pastiche and homage…

    …but I guess Rosamond’s too obscure for that argument to make sense.

    And speaking of Shepard Fairey, I saw an image of Optimus Prime done in that woodcut style with the legend reading “Change [subtext] Into A Truck”. Now that’s homage done right!

  7. There’s a similar case regarding Todd Goldman, an artist who has taken a lot of other artists’ work (or simple clip art images) and passed them off as his own. This site lists a lot of the cases, with side by side comparisons including, of course, yet another angry little goth girl:

    http://www.miketyndall.com/todd_goldman/

  8. how can I not lay claim to my own ideas?

    Well, here’s the problem: if I copy your idea, do you no longer have it? If I can implement it better/faster/cheaper than you can are you entitled to employ force (IE, the state) to prevent me from doing so?

    If you have the idea to perform some labor and get paid for it, but I actually do it while you sit on your ass, who’s really entitled to the resulting payment?

    We used to have a hurdle to cross to lay this claim, which was that you had to produce a working model of an invention in order to get a patent on it. Arthur Clarke thought up the idea of placing a satellite in geosynchronous orbit, but he wasn’t the person who figured out how to get it there.

    -jcr

  9. Tim (if I can call you Tim), I like your points on pop culture…even most soi-disant eccentrics are capitalists at heart.

    Art, you are the biggest ass-kisser. And you should call him “Cavanaugh”. Or, even better…TC. It’s like we’re all on Magnum! HIGGINS

  10. Hmmm…interesting. Todd Goldman doesn’t seem to actually have any talent.

    We used to have a hurdle to cross to lay this claim, which was that you had to produce a working model of an invention in order to get a patent on it.

    I don’t think art has to be rigorously constructed like engineering models do. I don’t think any of these artists are sitting on their asses, they all seem to have work up in the public domain.

    But, yes, there is a difference between the way profit is had in fine arts vs. commercial art.

  11. Another point that comes to mind is, if you paint the Mona Lisa, and I copy it, does the copy diminish the value of the original? Isn’t some part of the value of the Mona Lisa owing to the number of copies around, on postcards, t-shrits, and hand-painted copies made by generations of art students?

    -jcr

  12. Or, even better…TC. It’s like we’re all on Magnum! HIGGINS

    OK, *that*, I’m down with. That and wearing a thick mustache and a Hawaii shirt with cut-off jean shorts (and somehow still being the model of virile heterosexuality!).

  13. Another point that comes to mind is, if you paint the Mona Lisa, and I copy it, does the copy diminish the value of the original?

    I don’t think that’s such a good point, because I’m sure Leo da Vinci no longer cares if some jackass is making profit off of his painting, owing to his being long dead.

    I’d say a better example would be me making my “own” Magnum PI t-shirts and selling them for profit but not paying Tom Selleck’s mustache anything.

  14. If you have the idea to perform some labor and get paid for it, but I actually do it while you sit on your ass, who’s really entitled to the resulting payment?

    Everybody involved including the person who originally crafted the image.

  15. I’d say a better example would be me making my “own” Magnum PI t-shirts and selling them for profit but not paying Tom Selleck’s mustache anything.

    You better pay the mustache, motherfucker. The mustache knows where you live. And it can use Google Maps. Believe.

  16. It’s not that hard to be original.

    Honestly, if you silkscreened that image and sold it as a series of limited edition prints, I would buy a copy and hang it on the wall (of my studio, seedy apartment or future dream home).

  17. Art, you are the biggest ass-kisser.

    Really? Well, if someone as obviously smart and well-liked as you thinks so, I guess you must have a good point. 😀

  18. Plagiarism is plagiarism. Why overthink it?

  19. I’d say a better example would be me making my “own” Magnum PI t-shirts and selling them for profit but not paying Tom Selleck’s mustache anything.

    The mustache gets paid in rides.

  20. SugarFree | May 28, 2009, 4:53am | #

    It’s not that hard to be original.

    It’s a lot harder if you only get two words to whack with.

  21. Drop the jealousy, domo. It’s unbecoming.

    By the way… “lesbian wrinkle death” anagrams to “Kill Brainwashed Teen.”

  22. By the way… “lesbian wrinkle death” anagrams to “Kill Brainwashed Teen.”

    Impressive – by hand? 😉

  23. Emily’s main selling point: that she’s a DIY nonconformist who copies nobody

    “If you wanna be one of the non-conformists, all you have to do is dress just like us and listen to the same music we do.”

  24. Nah, I’m too hung over for hand-anagramming. Ommegang Hennepin is a cruel mistress.

  25. Ommegang Hennepin
    7.7%? – pretty zippy.

  26. Art, you are the biggest ass-kisser.

    Therefore, TC has the biggest ass. Learn something new every day.

    “You can’t be a nonconformist unless you drink coffee”

    ^I love me-my south park faggy goth kids

  27. domo,

    Local beer bar got it in on draft. My student workers and I had way too much of it after work. It is delicious.

    Ommegang Witte is just amazing. It’s easily in my top five beers.

  28. Sorry, guys, but the Constitution specifically forbids a goth president:

    No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, forsworn Hot Topic and all appurtenances thereof, and been fourteen Years a Resident within the United States.

  29. X,

    I don’t know why you won’t think of it as a living document. Get with the times. Why should goths be denied the Presidency just because some uptight white dudes in wigs and tights had never listened to a Xmal Deutschland CD?

  30. how can I not lay claim to my own ideas?

    My recollection is that you can’t copyright an idea, merely its expression.

    So if you have the idea in your head, but never reduce it to writing/drawing, you can’t complain if someone else has the same idea, reduces it to writing/drawing, and makes a fortune.

  31. Episiarch,

    Actually, TC would say, “Higgy baby.”

    Strange, but just this morning I was trying to remember the name of that TV movie with Roger Mosley and Peter Strauss. I always thought of it as TC in Prison, but the correct name is apparently The Jericho Mile.

  32. van Gogh is with a small, not capitalized, v

  33. “Strange, but just this morning I was trying to remember the name of that TV movie with Roger Mosley and Peter Strauss. I always thought of it as TC in Prison, but the correct name is apparently The Jericho Mile.”

    That is a great one. I am told they are re-making it. No good movie is ever safe from being destroyed by Hollywood.

  34. I did NOT sample “Under Pressure” by David Bowie/Queen in “Ice Ice Baby”. If you listen closely, it goes… Dun dunn dunnna *Ding*…. that little ding changes everything. Theirs goes, ‘Ding ding ding dingy ding-ding.’ Ours goes, ‘Ding ding ding ding dingy ding-ding.’

  35. Sorry if i hit a nerve, SugarFree. I didn’t realize you were so sensitive about liking torn black fishnets and capes and weeping.

    Bela Lugosi’s dead, man. It’s time to move on.

  36. Bela Lugosi’s dead, man.

    I know. [sob]

  37. A goth candidate for president would be pretty great. He/she could use “I Dare You to Be Real” as a campaign slogan.

    And, of course, The Cure’s “Club America” as the campaign theme song.

  38. Ommegang Hennepin is a cruel mistress

    Its too rainy for a Saison. When the sun comes back out though….

    Early summer, sitting on a deck as the sun goes down, Hennepin in hand…sounds vaguely familiar, oh yeah, two weekends ago.

  39. Xeones,

    You stole my joke. Loser.

  40. I apparently referred to mid-may as “early summer”. Hmmm….real real early summer.

  41. SugarFree,

    Ommegang Witte is just amazing. It’s easily in my top five beers.

    Try this if you get a chance. Pricy, but wow. Not really a surprising wow since Pierre Celis is brewing it.

  42. Hey, I just noticed that Tim is back. Hi Tim!

    Emily/Rosamond looks exactly like what my daughter has looked like for ages. Am I going to be sued next?

  43. robc,

    Sounds delicious. I’ll have to hit Liquor Barn and see what they have to say. Although, despite the growing popularity of witbiers, LB recently stopped carrying my favorite: Ayinger Ur-Weiss. Boo!

  44. As I look through these artworks, I notice that a lot of them feature takes on pre-existing characters. I love me some pop surrealism.

  45. Bela Lugosi’s death did give us the best movie ever: Plan 9 from Outer Space.

  46. SugarFree,

    Isnt Ayinger a hefeweizen, not a wit?

  47. Robc,

    That does look good. price be damned.

  48. For those unaware of Pierre Celis:

    The wit style had gone extinct. He revived it with the creation of Hoegaarden. He sold out to Interbrew (who became InBev who became InBev/AB). They dumbed it down, but it is still good.

    Celis moved from Belgium to Texas! and started a brewery producing Celis White. He sells out to Miller (who became SAB/Miller) who drives Celis into the ground in short order.

    He takes his second giant pile o’ cash back to Belgium, where he now “consults” on wits – currently with St Bernardus.

  49. robc,

    Yes. I was being lazy and lumping them all together. I like the entire genre of white beers and often don’t mentally distinguish.

    By the way, the Hennepin was the pint at Pazzo’s last night. They gave out really cool glasses, not the standard Duvel tulip.

    Erdinger Hefeweizen is next week, but they couldn’t tell me if it was the Dark Hefe or not (possibly my favorite beer.)

  50. Oh, and 3 major differences between a Hefe and a Wit (besides country of origin – although that is primarily why the differences exist):

    1. Wits contain a large portion of unmalted wheat.

    2. Wits are generally spiced – an addition of coriander and orange peel and maybe some other stuff.

    3. Yeast profile is different. Wit yeasts have a more belgiany profile and less of the banana/clove flavor that a hefe yeast gives off.

    Also, no matter what Widmer says, if you use a bland American yeast it aint a hefeweizen.

  51. SugarFree,

    I assume you have had the Weihenstephaner Hefe and Dunkel. I havent had anything that topped them in those styles.

    We still need to do a KY h&r meet-up at RichO’s in southern Indiana. 🙂

    Or at Sergio’s after it moves to staggering distance from my house.

  52. Ah, so that’s why Widmer is so sub-par. Interesting.

  53. Ooh, Flanagan’s is doing this tonight. Despite the rain, maybe it IS a saison night.

  54. SugarFree,

    Yeah, Widmer is an American Wheat despite its name. The worst abomination of beer styles there is. The yeast would be fine in an APA, where you want the yeast to be clean and get out of the way of the hops and malt.

  55. I assume you have had the Weihenstephaner Hefe and Dunkel. I havent had anything that topped them in those styles.

    Yes, and I do like them very much. I had a chance to have the Erdinger Dunkel on draft in NYC a few weeks ago and it just blew me away. I kept trying to go back the bar so I could have more.

    At least wit/weiss/hefe beer is growing in popularity up there, in even divey bars. everywhere we went had at least one good one on draft. Franzikaner, Hoegaarden, Erdinger, etc.

    Although, if Hoegaarden gets much thinner, I’m not going to fool with it much longer. It tastes like it’s watered down. The one I had a Pazzo’s last night was milky lemonade.

  56. Although, if Hoegaarden gets much thinner, I’m not going to fool with it much longer. It tastes like it’s watered down.

    Its brewed by the same people who make Budweiser…what do you expect?

    Budweiser…the largest selling Belgian beer in America.

  57. Celis moved from Belgium to Texas! and started a brewery producing Celis White. He sells out to Miller (who became SAB/Miller) who drives Celis into the ground in short order.

    So that’s what happened to Celis. It used to be so good, and then it just augured in. Good to know.

  58. Robc

    I can’t stomach American Hefes. They are just too sweet. They taste like a German Radler. Hefas in Germany and Dunkels in Germany are like elixer from heaven. Just fantastic beers. I can drink them by the gallon and never seem to get a hangover or sick.

    Are there any decent American Hefes that are not so sweet? Are there any drinkable Dunkelweisens? I would love to find some because the German beers don’t taste as good over here.

  59. robc: Sometimes you have to be willing to throw it all away for a Bauhaus reference.

  60. “I had a chance to have the Erdinger Dunkel on draft in NYC a few weeks ago and it just blew me away.”

    I will take the German Hefes and Dunkels over any beer in the world. I wish I could find an Erdinger Dunkel on tap here.

  61. Stupid that this is in court. The retard should have settled with a small, but not insignificant % on profits.

  62. Are there any decent American Hefes that are not so sweet?

    I homebrew a kick-ass hefe…in fact, will probably be doing that this weekend. But, that probably doesnt help you any. 🙂

    For a more serious answer…New Glarus maybe? So, if in Wisconsin, you can get one.

    Lots of brewpubs make them…crapshoot whether or not they will use a real hefe yeast.

    Im sure Im missing someone obvious.

    I just make my own or drink the german ones.

  63. “I just make my own or drink the german ones.”

    Yeah. The time has come for me to take the plunge and make my own. I have been meaning to do it for years. Now I have the money and time and a great basement to do it in.

  64. John,

    For most beers, having a “great” basement (by which I mean cool year round) is a good thing. For a hefe though, I actually end up doing the first few days of fermentation upstairs so that I can get that banana flavor coming thru.

    Also, hefes are one of the few styles that can be almost as good doing extract brews as opposed to all grain. So, if you start with extract, as most brewers do, you can rock the wheats.

    Ascii art to illustrate the concept:

    Low quality to left, high quality to right, range shown.

    Extract – most beers:

    All grain – most beers:

    Extract – wheats:

    All grain – wheats:

  65. John,

    Extreme fail – trying again.

    Extract – most beers:
    {————-}
    All grain – most beers:
    {———————————–}
    Extract – wheats:
    {———————————}
    All grain – wheats:
    {———————————–}

  66. robc,

    I’ve had good results with an extract base to replace the two row, and a grain bag with the good stuff. easier than all malt, and worlds better than all extract.

  67. domo,

    Yeah, that is a nice step up. I switched to all grain 5 years ago – my options now are single infusion or decoction. Those extra two notches on all grain wheats come from decoction. That just cant be replicated with extract, but it is a pain to do.

    The nice thing about extract hefes is that you dont even need to steep any specialty grains and you can make a beer as good as a single infusion all-grain.

  68. You guys are making me nostalgic for my home-brewing days. To take it up again here in West Texas, I would have to mod a chest freezer to hold the carboys while they brew.

    Best hefe I ever had was at the brewpub in Mt. Horeb, WI. They had “lost” it in their inventory, and it aged for almost an extra year.

    Second best I ever had was more of a dunkel that I brewed myself. The house I was renting had the world’s best basement for lagers. It was probably nearly three months before it finished out for bottling.

  69. to be honest, I never got into hefes. I love pretty everything else belgian, but the wheat base leaves a dry taste to my palate. heresy to some, im sure, but that’s my story. And no, please don’t everyone suggest their favorites. I’ve had all the best examples, its the style that doesn’t agree with me.

  70. (One of these days I’ll tell you how I invented the Sexy Catholic Schoolgirl look with a now-lost series of fourth-grade stroke drawings of my favorite classmates.)

    When my eldest niece was a little girl, I once found a doll missing an arm at a yard sell. It was a cute little booger that was a cabbage patch rip off. I bought it, took it home, cut off what remained of the arm stub and sewed the limb garment so the stuffing would not fall out.

    I presented it to my niece as ‘Little Baby Amputee’.

    Years later when she was a teen (early twenties now, my siblings are nearly a decade older than I am), she asked me if I remembered Little Baby Amputee. She could not find them anywhere and she wanted to buy one.

    I told her I made it for her.

    She didn’t believe me, and reminded me that it even had a theme song she remembered from commercials.

    ‘Little Baby Amputee, why wont you be friends with me . . .’

    I told her I made the tune up too, and there never were any commercials.

    She probably still needs a little deprogramming.

  71. alan. you. made. my. day.

    funniest thing iv’e seen posted here in months. lead pipe cinch for the threadwinner.

  72. Thanks Rob

  73. John,

    http://www.howtobrew.com

    Great site for getting started.

  74. “Strange, but just this morning I was trying to remember the name of that TV movie with Roger Mosley and Peter Strauss. I always thought of it as TC in Prison, but the correct name is apparently The Jericho Mile.”

    Even further OT, but an all-classics TV station I just found in the L.A. Market plays Magnum P.I. every afternoon, and I have discovered something remarkable in the data:

    Magnum P.I. is the gayest show in the history of network television. I don’t mean Will & Grace gay, but Kirk/Spock gay. I mean Magnum-in-his-short-shorts-and-Hawaiian-shirt-palling-around-with-T.C.-and-Rick gay. I mean female-love-interest-safely-removed-so-Magnum-always-ends-up-with-Higgins-in-the-last-shot gay. I mean so-gay-it’s-straight gay. Mustachioed butch homoeroticism, thy name is Glen A. Larson!

  75. Tim,

    Magnum was not gay. Sure, they dressed 80s funny, but it was guys being buddies and having carnal relations with attractive women, including Sharon Stone. Except for Higgins, who was sleeping with Orson Welles.

    Top Gun, incidentally, is the standard for gay art.

  76. “Top Gun, incidentally, is the standard for gay art.”

    Even more so now that Kelly McGillis came out.

  77. Bet Harrison Ford is pissed. What is it with him and bisexual/lesbian co-stars?

  78. Even more so now that Kelly McGillis came out.

    So Tom Cruise and Kelly McGillis were both faking it !? 😉

    van Gogh is with a small, not capitalized, v

    Thanks, man. But the F and K in Franz Kafka are capitalized. 😉

    Xeones | May 28, 2009, 9:14am | #

    Just classic.

  79. HI

    I just set up a new t shirt site here we designed our tee ourself check em out
    http://www.teejunction.com.au

    Regards,

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