If Big Brands Copied Their Work, What Are Artists to Do?

Companies like Marvel and Panini have been accused of stealing illustrations from lesser-known creators who say fighting back often proves futile.

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By Matt Stevens

Bobby Rubio did not know why he was being congratulated.

Then he saw it: his “Bolt Hero,” with its bulging yellow biceps and glowing blue eyes, wielding both lightning bolts and pigskin behind Los Angeles Chargers quarterback Justin Herbert on a desirable football card.

Instead of being delighted, Rubio was distraught. No one had sought his permission to use the design he often shares on Instagram.

“A character that I put years into creating got stolen without anyone asking my permission,” said Rubio, 51, who works as a story supervisor for Paramount Pictures. “How dare you?”

Copying in the creative field is so pervasive that it has worked its way into clichés. Artists are filing lawsuits to challenge what they see as an artificial-intelligence-powered assault on their profession, and the Supreme Court will soon rule on an important copyright case involving an Andy Warhol silk-screen of Prince.

But for the many independent artists who say that work they have posted online — in hopes of attracting paying gigs, or at least an audience — has been stolen by powerful companies, seeking redress has led to an uphill battle.

Creative work posted online has become an easy target for theft, artists say. Over the years, they have complained of scammers who made inferior copies of their artisanal items or turned their illustrations into sellable merchandise. Others have assailed big brands for copying their designs; in some cases, artists have sued.

For Rubio, the imitation Bolt Hero was a shock to the conscience.

“Anyone can just take my stuff and make profit off it?” Rubio recalled wondering when he discovered that his fan art — he grew up in San Diego, where the Chargers played for decades — had been co-opted for a football card of Herbert.

As soon as an original work becomes “fixed” — written, drawn or otherwise recorded — it is protected by copyright, said Laura Heymann, a professor at William & Mary Law School who specializes in intellectual property law. Basic shapes, features and tropes can be used by anyone. But copying a substantial amount of an artist’s creative expression qualifies as infringement.

If two artists create an image of a wolf, for instance, many elements might reasonably look similar, Heymann said. But to Darius Alas, Marvel Studios clearly crossed the line.

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