On an unseasonably warm Sunday in January, Seattleites at the Fremont Sunday Market seemed extra happy as they squinted into the stalls.
One vendor, Samantha Manalang, was also amped. It's the build-up to a second Seahawks Super Bowl in a row, which is amazing of course, but also a boost to her small business. She designs and prints apparel, much of it sports-themed.
One item is a onesie with the top of the space needle on it and a 12th man flag flying on top. That simple image has become a surprising lesson in intellectual property law.
It's a photo she took and turned into a screen print. It's Seahawks fandom but hipstered out, which makes it very popular here. Manalang says the problem was that it was also quite popular at another store, another small business.
She believes a shop in Seattle’s University Village mall stole a dozen of her designs. Manalang had previously sold baby onesies to the store, so they had their own samples.
Then, last fall: “My husband and I were walking through the Village and saw my stuff in the window,” Manalang said. “It was pretty clear that it wasn’t our onesies, so I walked in, in a cloud, tried not to cry, and just totally asked her about it.”
Manalang said the shop had taken the artwork to a printer and had the images made onto their own onesies. Manalang said she talked to the owner, who said the onesies would be taken down.
“I just kinda dropped it,” Manalang said.
“And then my girlfriend was shopping in the Village and went by the store and saw our onesies up again.”
That was two weeks ago.
The store owner would not comment for this story.
Manalang is upset about it and wants the store to pay her, but she may end up just letting it go.
Attorneys often tell artists who believe their work has been copied that they should do just that.
That’s the legal advice an Anacortes artist got 10 years ago. Clarity Miller makes artsy stuffed animals. She said she found a nearly identical version of her punk rock sock monkeys in an Urban Outfitters catalogue. She emailed the clothing chain, and the company said sock monkeys were already in the public domain. After talking to lawyers, Miller dropped the issue.
Zahr Said of the University of Washington specializes in copyright law.
“The key is, ideas are not protected under intellectual property,” Said said. “It’s only the specific expression, the particular details associated with how you express the idea.”
The idea of a punk sock monkey – that’s not protected. But if someone copied an individual’s particular expression of it, down to miniscule details like the writing on the punk monkey’s T-shirt, which the artist believes was her own handwriting, then maybe there’s a case.
“It can be often amusing to see Ninth Circuit judges struggling to produce fine-grained analysis of sock monkeys,” Said said, “but that’s exactly what’s required.”
Said said Manalang’s case, too, is about her individual expression. Are her designs specific enough to hold up in court? The fact that many are hand drawn is important.
But the law is complicated, and it’s hard to predict outcomes, Said said, which makes it an uphill battle for artists.
But that doesn’t mean there aren’t those who try, and some even succeed. Seattle design company Modern Dog sued Disney, Target and Jaya Apparel over a T-shirt with drawings of individual dogs, sold in Target stores.
Modern Dog claimed the drawings were theirs, lifted right out of their own book. Co-owner Robynne Raye says it was tough and it took years but, in 2013, the companies settled. “We are happy with the outcome,” she says, “and think the sacrifice was worth it.”
In an ironic twist to her ongoing issue, Samantha Manalang herself was also accused of breaking intellectual property law.
“Just this weekend, we got an email from someone from the Space Needle, super nice, you know, ‘You probably didn’t know this, but the Space Needle is actually trademarked,’” she said. “So I just wrote her back and said, ‘Oh gosh, I’m so sorry, we’ll take it down,’ which we did, and emailed her back to ask about licensing.”
They replied that she could not sell a T-shirt or onesie with the Space Needle on it.
“I didn’t know you could even trademark a building,” Manalang said.
Would the Space Needle’s trademark claim hold up in court? That’s another quagmire.
In Washington, there are resources for artists. One is a non-profit called Washington Lawyers for the Arts. This fall, they’re hosting a workshop on intellectual property law.