What happens when you copyright someone else’s art? LEONARD v. NIKE

A copyright is a set of exclusive rights granted to the author of a new work of expression. United States copyright law uses the term author, but many different creative professions are protected by copyright law. Artists, photographers, and musicians, are just a few of the different types of creative professions whose work is protected by copyright law. When a creator creates a new work of expression they are automatically granted a copyright to their work. A copyright can be registered with the United States Copyright Office to strength the rights associated with the copyright, however registration is not necessary for the copyright to be created. A copyright grants its owner the exclusive right to reproduce, distribute, display,perform, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction and to get monetary damages for copyright infringement which has occurred.

Generally a copyright is owned by the artist that created the copyrighted work. The copyright is considered a separate piece of property from the tangible work. The artist is free to assign or transfer the copyright to another person just like any other sort of property. When the artist sells a reproduction of the work, the copyright remains the property of the artist. The exclusive rights associated with a copyright do not transfer when a reproduction is sold. No transfers of a copyright owner’s exclusive rights are valid unless the transfer is documented in writing. The transfer agreement must be signed by the owner of the copyright or his or her authorized agent.

When an artist is the employee of a company, the copyrighted work is considered a work for hire. A work for hire is defined as a work created in the ordinary course of employment, or a work specially ordered or commissioned for use. In the case of a work for hire, the copyright vests in the employer of the artist and the employer is considered the owner of the copyright.

Whether a work is created by an artist on their own, or a work is made for hire, the only person that can register a copyright is the owner of the copyright. A third party cannot register a copyright and claim it as their own. If a third party registers a work of another with the United States Copyright Office and claims it as their own, the registration would be invalid, and perhaps the owner could sue for copyright infringement on the grounds that the third party created a derivative work.

The situation gets tricky because the United States Copyright Office only accepts registrations for copyright. There is no procedure for the Copyright Office to investigate and determine the actual owner of a copyrighted work. If there is a dispute between two parties, related to the ownership of a copyrighted work, the Copyright Office would register both copyright applications and the two parties would have to litigate the issue in Federal Court. Invalidation of the wrongful registration is the ultimate relief a court can grant to the rightful copyright owner. Given the significant power that registration grants, the penalty seems extraordinarily low.

A case that involves a work copyrighted by someone other than the artist that created the work is KAWHI LEONARD v. NIKE, INC., 19-CV-1035 (S.D.CA 2019). The plaintiff in this case is, Kawhi Leonard an American professional basketball player who currently plays for the Toronto Raptors. Because of the plaintiff’s larger than average hands he is sometimes referred to as the Klaw. In 2011, just after being drafted to the National Basketball Association the plaintiff created a drawing which consisted of a stylized hand with his initials K, L and the Number 2. The Number 2 was the plaintiff’s number through most of his basketball career.

In 2014, the plaintiff allowed the defendant to create merchandise which featured the plaintiff’s drawing. Without knowledge of the plaintiff, the defendant registered the copyright on the drawing and claimed that the defendant was the creator of the drawing. The defendant’s copyright registration was granted in 2017. The defendant claimed that it created the drawing in 2014.

The plaintiff filed suit in 2019, for copyright infringement and to get the defendant’s copyright registration invalidated. It will be interesting to see how this case unfolds. Belikely it will be settled quickly because the defendant would not want to risk alienating fans of the plaintiff.

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