Modern Dog, Copyright, and the Burden of Proof

True story: Back in 1990, a cow from Edgerton, Minnesota, ended up at Walt Disney World, grazing away the rest of her life at places like Grandma’s Duck Farm and Magic Kingdom Park. The Holstein was named Minnie Moo because of a marking on her side that very much looked like the Mickey Mouse icon. One theory about how this cow made it from Minnesota to Florida is that the Walt Disney Company took possession of the animal in the name of copyright protection. Yes, this smacks of a paranoid conspiracy theory—but it aligns with the indisputable fact that, around the same time, Disney was actively lobbying Congress to alter U.S. copyright code in order to prevent Mickey Mouse and his gang from entering the public domain. Disney was successful, and in 1998 President Clinton signed the Sonny Bono Copyright Term Extension Act [PDF]. Many argued that the act was unconstitutional, but Disney got its way. I couldn’t help thinking of this story after learning about a legal fiasco currently underway that anyone involved with creative output should know about, especially if that output is done on an individual or independent level.

Minnie Moo, photographed by Tom Burton, via The Orlando Sentinel

Modern Dog Design has been around since 1987, and counts among its clients Swatch, Coca-Cola, The New York Times, and Warner Bros. Records, as well as two other large companies that Robynne Raye and Michael Strassburger, Modern Dog’s cofounders, now find themselves preparing to face down in federal court. The dispute is over sketches of dogs that the Modern Dog team decided to use as the endpapers for a 20-year retrospective of its poster designs, published by Chronicle Books in 2008.

Modern Dog endpapers

The suit alleges that Disney and Target, in concert with certain of the two companies’ subsidiaries and vendors, used 26 of the dog illustrations from the endpapers, without permission, on apparel sold and distributed as part of a marketing campaign for the movie Sharpay’s Fabulous Adventure. Seattle Copyright Watch has a thorough rundown of the initial complaint filed on October 31, 2011.

Last Monday, December 10, I e-mailed with Raye and we spoke on the phone. She told me that, thanks to Friends of Modern Dog, the studio has been able to raise over $40,000 to go toward its growing legal fees (donations are still being accepted). But this money will in no way cover all of its expenses, even though Modern Dog went so far as to sell a house in the name of waging this battle. Of course, the great irony of this story is that not so long ago, Disney worked to change the law in the name of protecting its own copyrights.

This is a pending case, so nothing is certain—and, as we spoke, Raye grew frustrated over the many details of the case that she is not allowed to divulge. But her conviction is undeniable, though at this point she has little choice since cutting out now would leave her and Strassburger bankrupt. Plenty of people accuse Modern Dog of being out of line, or just plain stupid to go after these companies. Raye concedes, “The burden of proof is on us.”

As future motions attempt to bury much of the public record, it is well worth the creative community’s time to keep track of what goes down over the coming months.

Is this the first time that you or any of the Modern Dog designers felt that one of your designs was misappropriated or ripped off by an outside party?

This is not the first time we’ve seen our work show up in an unexpected place, but it is the first time we’ve seen it done to this degree (i.e., distribution, promoting a movie, et cetera). We found out about it when another designer working at local studio called to ask if we had sold our illustrations. We hadn’t. And so we began a journey that we still find ourselves in today—a full 15 months later.

What is the grounding motivation behind pursuing this battle? In this era of Etsy and the general designer boom, there seem to be more and more claims floating around of larger companies ripping off the work of individuals. Did your situation inspire you to take a stand for everyone who has been in the same position?

We know a lot of artists and designers can relate to our situation. Initially we wanted to set the record straight, as we naively thought our case would be settled in a few weeks. But copyright enforcement doesn’t work like that; in fact, it is very difficult for an individual or small company to litigate, due to the costs and time associated with a lawsuit. Unfortunately, what happens is that most creators just let it go, and I can understand why. In the end, it seems that the only entities that benefit by copyright are the large corporations that can afford to litigate.

If we have become the poster child for copyright enforcement for the little guy, that was not our intention. We just want the same rights granted to anyone else holding a copyright. We realize that speaking up about how to protect yourself could help encourage and pave the way for others to do the same.

Now that you’ve raised funds for the lawsuit through selling your studio, and through the Friends of Modern Dog campaign, what are the next steps? You continue to accept donations, correct?

Selling the studio has enabled us to reduce our overhead and establish a safety net for our lawsuit. Though the FOMD fundraiser exceeded our expectations in terms of funds raised, it is still short of what we expect we will need if this case goes to trial, which right now is set for September 2013. Mike Strassburger and I did not want to keep asking people for donations, so we set a deadline. The site is still live and will accept donations until about March or so.

Obviously, the lawsuit is all consuming. Has the situation brought in new clients, scared off clients?

This was one of our biggest concerns early on, as an IP attorney immediately started blogging about our case. We were concerned that if someone didn’t know us and Googled first, which is what most potential clients do now, they might be scared off. There’s no way to measure the negative effect of the lawsuit, but we do have new clients. We don’t talk about it with them initially, but as they get to know us they start asking questions. All of them have been extremely supportive and no doors have closed that we know of.

Have you been able to work as a designer of late?

Half my time is spent teaching, which has been a great distraction from the lawsuit. The other hours in the day are divided between dealing with the construction of our new space, running a business (designing, writing, et cetera), and the building of our copyright case. So, yes, I am still designing. Luckily, I am healthy, relatively young, and have no children, so I have the time and energy to devote to everything going on in my life. I work directly with our attorney on a weekly basis, which means I work late into the evening. For the short term, I am okay with this lifestyle, but I do look forward to putting this behind me.

Have you established new in-house procedures at Modern Dog to protect yourself from, or try to prevent, this sort of infringement?

There is no way to prevent infringement. It’s going to keep happening. I think the way copyright is enforced can be changed, though, and it’s long overdue. We need to make sure that individual artists and small companies can protect themselves when they find themselves in a similar situation. That means moving some copyright cases into state courts and even small-claim courts, where it’s faster and less costly to litigate. As an industry that makes a living from selling creative work, we need to demand these changes happen sooner than later.

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3 COMMENTS

  1. Thank you for bringing this to the attention of the professional design community. How sad that the decisions of people who are probably middle management at best, who probably were too ignorant to even realize that they were infringing on legal rights, and who knew good work when they saw it (so they just . . . used it), are now putting the working lives and finances of some very talented designers in the balance. Sadder still that their employers feel compelled to defend bad decisions, rather than acknowledge mistakes and settle out of court for what to them would be insignificant amounts.

    I have seen the incredible work done by Disney’s in house design firm, Yellow Shoes, as well as by Target’s many talented creative partners in advertising and package design. There is no shortage of talent at either of these firms! And no crippling shortage of money to support their creative efforts. Clearly a firm like Disney, built on the shoulders of generations of inspired creatives, knows better. This case could and should be an opportunity to show support for the design community to which it owes so much.

    My guess is it’s out of the hands of the ignorant perpetrators and fully owned by the legal departments now. It would take an act of top management courage to change that. Where are the visionaries at Disney and Target when you really need them?

  2. Unfortunately it is next to impossible for smaller companies to fight for justice when their copyrights have been infringed. I filed a case years ago but cannot afford a lawyer or the time to follow it through like it should be. As well the statutory damages in Canada are a fraction of what they are in the US making it a losing battle from the get go.

  3. This demands the support of every body in the creative fields. I’ve followed the saga for months. The Disney stance is arrogant in the extreme. The fact that a large company can willy nily destroy a smaller one through legal manipulation and stonewalling is a crime. When the shoe is on the other paw, Disney’s lawyers don’t waste anytime in setting the record straight.