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Friday, September 7, 2012

Dude, where's my royalty check? Local designer lashes out at Trib

Posted By and on Fri, Sep 7, 2012 at 5:41 PM

When Dan Rugh spotted the new advertising placard on a Tribune-Review newspaper box, the cofounder of South Side's Commonwealth Press couldn't help noticing that it seemed somehow ... familiar.

zoltan1.JPG

The placard was advertising an upcoming "Zoltan" card promo the newspaper was running, based on the Pittsburgh Pirates' quirky adoption of a hand gesture taken from the film Dude, Where's My Car?
But to Rugh, the Trib's design seemed to have drawn its inspiration from a source a little closer to hand: Commonwealth's own product catalog. The design looked exactly like one Commonwealth had been printing on T-shirts and other products — right down to the drawn-in creases on the skin.

zoltan2.jpg

And so he did what any self-respecting contemporary designer would do: He called the Trib out on Twitter.

"hey @TribTotalMedia," he Tweeted, "you flat out STOLE our #ZOLTAN artwork"

"I don't respect lazy design," Rugh tells City Paper. "They used our art on all of their boxes around the city. How hard is it to draw your own hands?"

Of course, it's not as if Commonwealth invented the Zoltan concept, or the hand gesture itself: Both came from someone else's creative work product: an immortal film classic dating back to 2000 and starring Ashton Kutcher. Rugh freely acknowledges the design was inspired by the film. But the word "inspired" is the key. "We created an illustration inspired by the Pirates, who were inspired by the movie," Rugh says. "We didn't steal anything."

Rugh says it's not uncommon for Commonwealth's designs to be stolen. When Commonwealth spots a pirated design, the company asks the vendor to stop, but doesn't pursue legal action. They don't plan to go after the Tribune-Review in court, either.

"The only thing I wanted to do," says Rugh, "was point out what they were doing and call them dicks for doing it. Make sure you say 'dicks.'"

Ralph Martin, president and CEO of Trib Total Media, declined to comment on Rugh's accusations directly. But through an assistant, he said he believes there is no infringement because the Commonwealth Press does not hold the copyright to the Zoltan sign.

Martin referred questions to the paper's attorney, H. Yale Gutnick, who has not been available for comment. (If he provides a response, we'll post it here.) But at least one legal observer says that Commonwealth would have an uphill battle.

"It's difficult for me to see the harm to Commonwealth from the copying by the Trib," says Michael Madison, a University of Pittsburgh professor who teaches intellectual-property law. "Did the Trib copy Commonwealth's image? Looks that way to me. Did the Trib get permission? Sounds like they didn't." But the Trib's use of the image, he says, seems unlikely to hurt sales of Commonwealth products. While "copyright owners jump up and down about 'stealing,' that's not really what copyright is about."

Madison adds that Commonwealth could also go after the Trib under trademark law, which governs the use of logos or designs that identify the source or maker of a product. But while Commonwealth "arguably has a trademark in the graphic Z" when it comes to towels or T shirts, "The Trib is selling newspapers." The question in such cases is "are consumers likely to be confused by the accused infringer's use of the trademark?" And Madison says "it's very hard for me to see a 'yes' answer that would favor Commonwealth. If I'm looking at the Trib's card, am I likely to think that the newspaper is somehow linked to the people who sell the towels?"

Madison acknowledges that "stranger legal claims have gotten traction in the past," and that while Commonwealth may have what lawyers call a "thin claim" ... "it's still a claim.

Still, he says, "in the common-sense equities of the thing, it sounds to me like Commonwealth is trying to corner a little market on the Zoltan bandwagon and found itself getting upstaged. It's a little bit of 'sauce for the goose is sauce for the gander.'"

And if it seems strange to you that Commonwealth can't control the use of the image its own designers came up with, well ... it seemed strange to us too. But Madison says that unless Commonwealth intended to license or sell the image to others -- rather than emblazoning it on T-shirts and other gear themselves -- then their gripe is that "they've been deprived of a fee they never anticipated earning in the first place."

"'I made it, therefore I own it, full stop,' isn't the law and never has been," he says.

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