If big brands copied their work, what are artists to do?
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 cliches. Artists are filing lawsuits to challenge what they see as an artificialintelligencepowered 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.
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.
Alas, who goes by the artist name Midiankai, last year accused the company of ripping off a wolf drawing he had created
for the hard- core band Born From Pain. The band says it paid him and printed shirts featuring the design as merchandise.
Initially, Alas said, he had not thought much of the Marvel art, which his wife had stumbled upon in Youtube advertising for the Disney+ television special “Werewolf by Night.” “I’m a small artist,” he recalled thinking. “It never crossed my mind that some big company would steal from me.”
But when Alas, 35, of Estonia, looked more closely at the Marvel wolf, he realized it included some of his artistic mistakes. The shadows were off in just the same way, and the wolf’s nose had nearly identical Christmas- treeshaped shading running down it.
Marvel Studios said its creative team had worked with an agency that licensed a source image from Shutterstock, a provider of stock photography. The image it cited features a wolf with a barbell between its clenched teeth.
The artist credited with creating the image on Shutterstock — a “vector contributor” with the user name “Ydhckll” — did not respond to requests for comment. In a statement, Shutterstock said that it would investigate the matter and that creators agree to terms of service that make clear they must “have the necessary rights to submit their content.”
Shown the Shutterstock image, Alas was clear: “This is my wolf.”
Determining who is liable in a case like Alas’ would depend in part on what the license agreements say, Heymann said. But she added that “anyone who reproduces or distributes a copyrighted work without authorization is potentially infringing.”
“It could be a huge mess,” said Kevin M. Casini, an adjunct professor at Quinnipiac University School of Law, who raised another complicating issue: If Alas drew the wolf as work for hire, then the band — not the artist — would own the copyright.
Rubio created Bolt Hero, which relies on Chargers themes and motifs, more than a decade ago. The character gained such a following that he said the football team once paid him to draw it on a commemorative poster.
Rubio said that after he posted a tweet with the hashtag # Stolenart, he was contacted by Panini, the company that distributed the football card in question. Panini offered to pay him a nominal rate and credit him on future cards if he agreed to sign paperwork, he said.
Lawyers advised Rubio that winning the case would probably generate only “pocket change,” so he decided not to take Panini to court. But he did not sign its paperwork, either.
Panini did not respond to requests for comment. It has since released nearly identical versions of the Chargers card that do not include Bolt Hero.
Much like Rubio, who discovered via social media that his art had been hijacked, freelance artist Kitt Lapena came to find out through online comments that his drawing of a dragon had appeared, with slight modifications, on a card in the game Magic: The Gathering.
Lapena, who uses the artist moniker Scarypet, said he had collected the game’s cards for years, and had practiced drawing as a child by filling his sketchbooks with drawings of dragons. He said he had even tried to solicit work from Wizards of the Coast, the game’s publisher. So when Lapena, 39, of the Philippines, saw he was being feted for having his dragon featured on a Magic card, he initially “thought he was being trolled.”
After Lapena tweeted about the situation two years ago, Wizards of the Coast announced it was suspending its relationship with Jason Felix, who drew the card and whose art Lapena had long admired. A spokesperson for Wizards said the company had not worked with Felix since.
Felix, who declined to comment, ultimately compensated Lapena for his work and sent out a public apology. “I was overworked, but that’s no excuse. I messed up and I’m trying to make amends,” Felix wrote on Twitter. “The artists did not deserve this.”
Lapena emphasized that he held no ill will. In fact, he said, there was one silver lining: He drew a card for Wizards of the Coast that debuted last year.