Did Harper Collins rip off Brazilian illustrator Nathália Suellen?

"The story starts with Harper Collins inviting me to create a cover to 'Bewitching," Rio de Janeiro-based artist Nathália Suellen writes on her blog.

"They wanted something similar with 'City of Angels,' and I remember I had refused it because this artwork had been already sold to another book and also because of my personal opinion about the theme," she continues. "However it looks like they got angry with me and decided to copy my artwork."

What do you think?

via blog.ladysymphonia.com: Rip Off, Harper Collins Publisher.

LK Rigel, the author of the book Suellen sold the use of her artwork to, has blogged about this, too.

Here is the LK Rigel book cover which uses Suellen's art with Suellen's consent. Here is the forthcoming Harper Collins title (due out Feb. 2012) with which Suellen takes issue. Goodreads.com shows the book cover.

Given the fact that the book in question isn't due out for another 6 months, odds are good that the matter could be resolved so the "new" author isn't harmed by this kerfuffle.

(via Anthony Citrano)

• [KBert]

  Yes.

• [William Joseph Dunn]

  the short answer is “yes”.

• [Angryjim]

  Especially with the back story, it is obvious that is a blatant rip off. Are there any copyright lawyers out there who can tell if she has a case. Obviously Harper Collins are in the wrong morally, but are they legally? I’d hope so, so the artist can get paid something for this.

• [lakelady]

  hmm rip-off or fair use?

  • [rrh]

    It is for a commercial purpose, and I don’t think you could argue it’s a criticism or parody of the original work. Since she did license the image for the cover of another book, and Harper Collins approached her initially, the original work and the derivative work are competing in the same market.

    The substantiality of the copy is the fun part, since it is not a mechanical duplicate of the original, but it pretty clearly imitated the composition and content of the image. This might lead to the two publishers duking it out, since someone could confuse the two books if they aren’t paying attention.

• [Mike Ernst]

  Yes

• [anthrosciguy]

  The theme music from Ghostbusters runs through this.

• [mellowknees]

  Seems to me like she got ripped off.  It’s awfully similar to a case Tom Waits won:

  Waits filed his first lawsuit in 1988 against Frito-Lay. The 9th Circuit Court of Appeals affirmed an award of $2.375-million in his favor (Waits v. Frito-Lay, 978 F. 2d 1093 (9th Cir. 1992)).[52] Frito-Lay had approached Waits to use one of his songs in an advertisement. Waits declined the offer, and Frito-Lay hired a Waits soundalike to sing a jingle similar to Small Change’s “Step Right Up”, which is, ironically, a song Waits has called “an indictment of advertising”. Waits won the lawsuit, becoming one of the first artists to successfully sue a company for using an impersonator without permission.

  • [Mister44]

    “Step Right Up” is probably my favorite Waits song.

• [EH]

  The background building is different and the bird is in a totally different spot, so I’m gonna chalk it up to convergent evolution.

  • [thebelgianpanda]

    oh you :D

  • [Apple the Parrot]

    They approached the artist with an offer to buy it first, and when she refused, they produced this. How can that be convenience?

  • [JR Tomlin]

    You can’t chalk it up to convergent evolution when they had seen and wanted to buy the original artwork.

• [OohErMissus]

  If Nathalia archived all the interactions she had with Harper Collins regarding her work, I’d say she’d be dead-on with a case of a blatant attempt to mimic her work.  There really wasn’t even a dramatic attempt to disguise the fact that the artist for the book cover aped the style of Nathalia’s artwork, even if the cover artist wasn’t intentionally trying to do so (i.e. the cover art editor intentionally steered the artist into creating a facsimile of ‘City of Angels’).

   I smell out-of-court settlement.

• [Jay]

  Unscrupulous 

• [pizzicato]

  Copying? Yes, a facsimile? No, illegal most likely not. I think balloon dog comes to mind… But I don’t think Harper Collins is winning the ethical ground.

• [Ramone]

  Yikes! And the poor author’s work is immediately thrown under the bus by a publisher that cares more about vendetta then a positive image for the book.

• [tyger11]

  One would hope that a company whose entire existence depends on the intellectual property rights of creative individuals would know why this is wrong (even aside from the legal implications, over which at least a couple of people at HC should be flat-out fired).

• [Max Hodges]

  A copy or a tribute? ;)

  • [benher]

    Obviously an Hommage.

• [Myriad]

  I’m curious about her “personal opinion about the theme.”  What do you suppose she means by this?

• [relawson]

  This is just a sorry excuse for a “remake”. Original piece is leagues above the blatant copy.

  How funny, though, I was going through my old bookmarks this morning and visited a site I’ve not been to in a very long time:  http://youthoughtwewouldntnotice.com/blog3/

• [Teller]

  Other than the concept, setting, pose and all the elements – no. 

• [Genre Slur]

  bwahhahahahahahahahaha! Harpo’sColon STRIKES again. That embarrassing, really.

• [Anthony Citrano]

  A few things I found bothersome about this…

  1. The copy is (as others have noticed) a shitty rendition of the original. It actually looks to me not as if another artist created a work based on the original, but that they literally took a digital copy of the original and modified it. For example, there are some VERY clumsy digital artifacts along the line of her dress that just *scream* PS-clone-tool.

  2. As a photographer I constantly deal with people who think that just because my stuff is online, it’s free for them to use, modify, etc. – not just without payment but without credit, attribution, or even permission. That’s another conversation, but it would seem to me pretty crazy that a company whose entire existence depends on the creativity of others would decide to pilfer it.

  3. The Harper-Collins art director who originally approached Nathalia is a young RISD grad, and I’d like to think she made this decision autonomously without more senior involvement from the company. I am not ready to assume this is endemic to Harper Collins’ culture. But if what I think is true is true, she should be fired, Harper Collins should offer Nathalia an appropriate and generous payment (whether or not she decides to let them go ahead and print the art), and they should issue an apology and a statement condemning this kind of behavior.

  My $0.02.

• [Cullan Hudson]

  They may have been inspired by her work, but since when is it illegal to do something that bears a resemblance to another work. The world is FILLED with perfectly legal examples of this. Sounds like sour grapes because she didn’t get the work. Granted, it’s fairly douchey of them to just up and say “we’ll do our own version” instead of looking for their own inspiration, but alas… Only copyright Nazis will think there’s a case here, but then they’re mostly psycho anyway. I mean, parody is protected–or supposed to be. It’s not the same background, it’s not the same woman, or dress, or bird. It’s a similar pose and style. There are countless examples of artists inspired by the works of others and make allusion to those pieces in their own creations. Now, if they took HER picture, that’s a problem. This intellectual copyright stuff tends to get so diffuse as to become either meaningless or dangerously fascist.

  • [Claire Hummel]

    But it’s so evident- especially considering her history with the publisher- that they went out of their way to get as close to art as is humanly possible…  Without treading over the line and just reusing her piece, anyway.

    Artists have a pretty good instinct when it comes to infringement, whether a piece is just coincidentally similar or a rip-off.  With this, the placement of the bird, the colour and tone of the background, the fact that the dress isa nigh identical compositional element…  That’s something worth fighting for.

    -C

  • [JR Tomlin]

    It wasn’t that she didn’t “GET” the work. She REFUSED to sell them the work.

    As far as HC is concerned, “no” means copy my work and maybe I won’t notice.

  • [Eric Torres]

    It’s a copy, plain and simple. You don’t even need a trained eye to see it. Anything else is rationalizing things. People rip others off all the time. The reason it happens is because we make excuses for it. “Nazism?” Please. It’s called good, simple common sense.

• [giantesss]

  Looks like Amazon has removed the picture of the cover….
  http://www.amazon.com/gp/product/0062024140/ref=as_li_ss_tl?ie=UTF8&tag=mitogo05-20&linkCode=as2&camp=217145&creative=399373&creativeASIN=0062024140

  • [Ramone]

    Or it hasn’t been posted yet. Book comes out Feb. 2012

• [Michael Senkow]

  cullan: but that becomes a major question. How far does that stretch? If I copy a fellow students architecture project but change the concrete to granite and make it a little taller, did I rip them off or get an interesting but similar idea? Really we need some sort of overall overhawl of how creative ideas are protected regardless of what realm they’re in.

  • [irksome]

    Style and composition “similarities” are one thing but the bird smacks of intellectual infringement.

    But I don’t know enough about copyright. Shoei Helmets once ripped off a photo of mine but paid up when I brought it to their attention. 

• [Thorzdad]

  If only the illustration had been re-done as a character apron. Then it would have been ok.

• [tinyinkling]

  I think the similarities are blatant enough (esp. the crow), particularly with the history, that the artist has a good case. HC would be wise to settle quickly. 

• [giantesss]

  @Ramone, when I first read the story on BB the cover was there, now it’s not. Coinkidink?

• [Brainspore]

  It’s a rip-off, but at least it appears that the second artist drew it from scratch instead of tracing the original.

• [Scott Frazer]

  I dunno from jack about any of this, but here’s the impression I got from the Boing Boing piece:

  Harper Collins: “Hey we have a book that we want a cover for with a woman, flowy dress, bird. Like this painting you did.”

  Artist: “I already sold that painting, I don’t want to do another one like it.”

  Harper Collins (to another artist): “Hey we have a book that we want a cover for with a woman, flowy dress, bird.”

  If you turn down a specific commission as an artist, should that invalidate other artists from doing the same commission? I can’t imagine that’s the first time those three images have ever been put together in a painting.

  • [konrad44]

    Agreed – the second picture is a creative remake. Noone can deny that the other artist put SOME effort into that and did not mechanically copy the original. I am pretty sure that such cases are common for low cost publications (dunno if this is low cost or not).

    To me: morally bad, legally on the borderline. …and the buzz is a good & cheap, although a bit premature marketing for the upcoming book.

  • [Sekino]

    Hmm… To me it seems more like:

    Harper Collins: “Hey we like this painting you did, we want it for our cover.”

    Artist: “It is already being used for another book. Besides, I don’t think it’s appropriate for the book’s theme.”

    Harper Collins: “Well screw you, then. We can find someone who’ll make the same painting, but juuust different enough so you can’t get anything for it. Neener, neener.”

    It may be legal, but it is still incredibly disrespectful and crass.

• [Daemonworks]

  Hmm. I definitely prefer everything in the original work, except the background. 

• [Cameron Postelwait]

  dress choice in the original is 10 times better.

• [Michael Baird]

  Something I noticed: The blackbird on the cover of Spiderwork (published January 1, 2011) is identical to the blackbird on the Blueneck album “The Fallen Host” (released February 9, 2010). 

  http://i.imgur.com/FepFT.jpgI don’t know if Suellen was the artist of the Blueneck album or if there is a fuzzy blackbird clipart gallery somewhere out there.  If Suellen didn’t supply artwork for Blueneck… how ironic.

  • [Harold]

    According to the artist the original image was produced in 2009, then licensed for the cover artwork for Spiderwork in 2010.  It’s quite possible she’s had this same image ripped off twice now. Nevermind, apparently there is a “fuzzy blackbird clipart gallery somewhere out there”.

  • [Sekino]

    The artist gives extensive credits for the stock images used, under the artwork on her Deviant Art page. From that, it looks like the bird is from a set of stock Photoshop brushes of flying birds, so it is very likely the album cover artist used the same set of brushes.

    • [Michael Baird]

      Well I’ll be damned.  There IS a fuzzy blackbird clipart gallery out there.

  • [Nathalia Suellen]

    this a stock. available for everybody use it. http://www.sxc.hu

• [(likari)]

  I think this comment from the artist on a Goodreads thread shows HC’s intent to use Spiderwork’s cover artt:

  Yes, this is crazy. I’m the artist of the book of LK RIGEL. 

  In September 2010, the writter LK RIGEL contact me about the licence of my artwork “City of Angels”. The licence was sold to her and now she is using it in her book “Spiderwork”.

  Some months later, to more exactly May 2011, Sasha Illingworth from Harper Collins contacted me, asking if I were interested in creating a cover to Bewitched. 

  Going straight to the point, I refused the work. The reasons were quite simple:

  When she said she were interested in buy “City of Angels” she already knew the art was sold to another author. Sasha asked if even so were possible to buy the image and right after asked some informations about LK RIGEL such as (nationatity, book section). I immediately refused her proposal because I really don’t think it’s nice to have books with the same cover or something too similar. Doesn’t matter if it’s a big company or a self publisher. 

  All the time this story seemed a bit dishonest and selfish. I mean, why someone want to buy a cover that is already in use? I created this artwork in 2009, nobody wanted to buy it. “City of Angels” is not the most famous or popular artwork from my gallery. But now, everybody want to buy it, suddenly. I mean, it’s not at auction.
  I feel like someone trying to buy me, because its a publisher or whatever it is. They do everything to get what they want. Doens’t really matter if you are an artist or writter. There’s no respect at all. And I wonder: where is the originality and capacity of thinking and creating of this poor art director? Harper Collins is paying its workers to copy. 

  And by the way, I contacted Sasha Illingworth about this and no answers so far.
  and I just want to clarify that not all publishers are like this. This was my first disappointment with a publisher or company.

  Summing up,
  they paied another artist to copy me. 

  • [Paolo Zago]

    It seems to me that the case was turned by the artist into a david vs goliath case. If the original art was going to be used on a book with local or low spread distribution it was not so strange for HC to ask to reuse it. Refusing to sell the artwork was a choice of the artist for its own ethics.

    HC made a similar picture, but composition aside there’s a different tone to it, the girl for example has a completely different feel: she looks more like a “lady” and less like a “fantasy-bondage” character ;D

• [petiepooo]

  This is not a copy.  It is similar, as others have mentioned, but I’m sure HC had legal review the two images, knowing that there may be concerns raised, and I’m sure legal determined that there was insufficient grounds for a lawsuit.

  That said, there’s a big difference between illegal and unethical.  It is very obvious that the theme of the original was copied, even if it used none of the original artist’s rendition.  It would be gracious of HC to give attribution for the cover’s artistic inspiration, even if they’re not legally required to do so.

  • [Anthony Citrano]

    If you really think “legal” reviewed this and determined “insufficient grounds” for a lawsuit, you don’t know much about how overly cautious most legal departments are in the publishing business. I say “legal” never set eyes on this.

  • [Halloween Jack]

    Unless you were in the room, you can’t be sure that they reviewed this. Their decision making process could have been as simple as, “Well, I really like this illustration, so if she’s not going to sell it to us, fuck it, we’ll get someone to do one that’s just like it–we’re a big-ass publisher and they’re an artist that no one has ever heard of.”

• [Michael Grosberg]

  There is no copyright for ideas – only for execution. And the execution is different. Very similar, yes, clearly a “remake”, sure – but let’s be honest here: it’s not like the original artwork was the epitome of originality. Woman with a bare back looking sideways? Only looks like about 90% of modern paranormal fantasy / romance covers. So to the artist I say, it’s annoying (and somewhat flattering) but not actionable.
  The author or publisher of the book the original artwork was sold to to be used as a cover – now that is another issue. Could they claim that this cover, serving as a packaging to the product itself (the book), is misleading to the customer? That might indeed be the case.

• [Tom Sheft]

  This has been an issue among pro photographers (and illustrators) for some time. Something about creative laziness of many art directors and ignorance of many end clients. Discussed at length here:

  http://www.aphotoeditor.com/2010/03/26/ask-anything-copying-other-artists/

• [origilla]

  This thread again?

• [absimiliard]

  Is it thematically similar, yes, yes it is.

  Is it copyright infringment?  I think I’ll let a court decide on that one.  By law, as I understand it, no, it’s not infringing.  That a piece uses thematic components of another piece is not part of determining if it infringes on copyright.  This piece is CLEARLY not the same piece as the original artist’s piece, it’s a (fairly obvious) knock-off of it though.  However courts have been getting a little crazy in overly-broad interpretations of copyright law, so I don’t think I’ll venture an opinion until we see how a court rules.

  But if the law as written, not as interpreted, is the guide then it’s not copyright infringement.

  -abs isn’t even sure it’s a tacky choice on the art director’s part, both paintings are neat, but personally he prefers the “Bewitching” cover (as he feels the details on the original don’t work for him, that hair for example . .. . .)

• [Ito Kagehisa]

  Shepard Fairey, um, s’cuse me, I meant Harper Collins did a better job on the bird and the hairstyle, but the original still appeals to me more.

• [haineux]

  The question really is, “Is it theft?”

  This particular case, it’s quite possible that, having lost a chance to use the original, the publisher hired an artist with “clean hands” to make a “lookalike” cover. That might — or might not — be enough to escape legal obligations, depending if the courts find it more like a “lookalike or more like a “derivative work.”

  As the popular saying goes, “You can’t copyright/patent/trademark an idea, only an implementation.”

  • [rrh]

    If the question is “is it theft?” the answer is “no.” Did you mean to say, “is it infringement?”

    • [haineux]

      Let me be more clear, then: “Is this something which will cause the publisher some legal obligation/punishment?”

• [Inchoate]

  I wonder if the artist has tried contacting Alex Flinn, the author of the book with the rip-off cover. If HarperCollins is doing this without Flinn’s knowledge, she might be sympathetic and willing to raise an objection with her publisher.
  But perhaps I’m being naïve.

  • [Nathalia Suellen]

    I didn’t contact the author. I contacted the art director: Sasha Illingworth
    no answers so far. However, the writter  (like I have just read bellow) posted right now in her blog that “Bewitching cover is a work-in-progress” and I wonder how someone publish a cover everywhere that is a copied of my artwork. They are behaving like if anything wrong had happened. You are not being naive! nice comment. thank you

• [allthegoodusernamesaretaken]

  If HC doesn’t change the cover, Suellen may have a case. I’m not a lawyer, but this situation seems strikingly similar to David LaChapelle’s lawsuit against Rihanna and her “S&M” video director for recreating images from his still photography. That lawsuit cleared the first legal hurdle in last month and moves forward to trial:

  “One of the big issues in this pre-trial judgment is
  whether LaChapelle’s work contains elements protectible by copyright. The judge finds that the common theme of S&M … (is) NOT
  protectible. However, (LaChapelle’s) selection and orchestration of props and the
  way he controlled “angles, poses and lighting” do rise to elements that
  can be copyrighted, according to the judge.”
  http://www.hollywoodreporter.com/thr-esq/rihanna-suffers-setback-sm-music-214907

  Ah, the delicious smell of legal precedent in morning. Afternoon. Whenever.

• [bagoombah]

  the artist’s position is moot if the crow is not her work on the Blueneck album or at least does not have permission of the rights holder of the original crow artwork.  if this is the case, egg meet face.

• [José María Paz]

  the original is so much better

• [Henrique Placido]

  Come on. Composition, elements, colors, mood, everything in the “new” image is identical to the original. The effort they took to create it from scratch just makes it more premeditated.

• [Jeremy Mizell]

  Short answer, there is nothing particularly unique or original about the first painting.  A woman’s back in a ball dress and silhouetted crow are very commonly used images.  There is also nothing novel about the composition of either image.  Honestly is a pretty cliche and run of the mill painting.  Who cares.

  • [Nathalia Suellen]

    it’s not a coincidence, not about being cliche or not. This company copied me because I refused to sell this artwork. Understand now?

• [miasm]

  Harper Collins ripped off Brazilian illustrator Nathália Suellen.
  Harper Collins ripped off Brazilian illustrator Nathália Suellen?
  Harper Collins ripped off Brazilian illustrator Nathália Suellen.

• [Jeremy Mizell]

  I think an imporant point to realize, a large company may approach several artists to produce work based on certain specification.  They could have specified, dark, women in dress showing back on right crow in air to the left of woman.

  They may have several pieces by many artists that look exactly like this.

  • [Anthony Citrano]

    Put 1000 (original-naive) artists in a (big) room. Give them Jeremy’s general creative guidance, above. Show me a single resulting piece that bears this much resemblance to the original, and I’ll agree with you.

• [blueelm]

  I like the silly hair in the original better. It’s true that both paintings are so amazingly cliche and trite that it makes it harder, but really the color choices are pretty clearly identical and the placement is pretty much identical. There’s almost no way I can imagine that the HC version was made as anything but a “revision” of the original artist’s work.

  I hate this kind of art. I really do. The sad thing is the only one that shows any intelligence or inspiration is the original. Clearly, that was not important for HC when ripping an artist off :(

• [giantesss]

  Check out the author’s blog. On  7/24 she showed the cover and, in her defense, she did state it was “not completely final”. Her most recent post (today) she states: “In light of the perceived similarities, my publisher has assured me they are creating a brand new cover for Bewitching.”
  http://alixwrites.livejournal.com/

  • [BarBarSeven]

    Good to hear. But the chances of that happening without a public outing/shaming are 100% zero. Kudos to BoingBoing for helping to bring light to this.

• [Ted Lemon]

  Strictly speaking, their entire existence depends on buying copyrighted material (please, stop using the term Intellectual Property—it doesn’t mean what you think it means) cheaply, and selling it dearly.   So this is quite consistent with that.

  I like the original a lot better, and it’s pretty clear that the new one is a clone of the old one, but I doubt it’s worth the court case.   Which is, no doubt, why they figure they can get away with it.

• [bombastinator]

  If there weren’t probably a hundred paintings posed like this in the last 400 or so years, I’d say yes, but all they have to do is find a couple standard back facing portraits with birds from the millions of paintings done, and that’s the end of the lawsuit.

  I suspect the insult to injury issue here is actually that the second painting is better than the first one.  That hair is desperately stupid.

  Another point here: Let’s see the original graphic sketch the jacket designer gave the illustrator. Remember, this is illustration, not fine art. This work was designed by someone else before either artist ever saw it. You don’t often get a lot of freedom painting this stuff. The color pallette was probably specced too.

  if you tell two people “I want a warm oil done in muted colors, back shot of young woman in a witchy dark evening gown, city in the background, and type space above and below” and then provide a back of a napkin level sketch of what you have in mind (all of which is standard illustration practice) are you really so surprised the two pictures are going to look similar?

• [William]

  There’s a few covers of vampire romance books that copy promo photos of Buffy with her boyfriend Angel. There are no longer any bookstores around me for me to take pics of them, but, I know they exist because they always caused me to do a double take.

• [Ben Sutherland]

  the original is way better, but you cant copyright a concept.  if you could, their would be no concepts left that someone couldn’t sue you over claiming they made something similar first.

• [Nathalia Suellen]

  Yes.

  they saw the cover from LK Rigel, wanted the same, contacted me, I refused, and they copied it anyway. – wow.

  the going situation is:
  I contacted the art director, no answers, they removed the cover like if nobody had seen it.
  …

• [Nathalia Suellen]

  and just to clarify:

  - inspiration is an idea which an artist develop according with his style. These are: elements, colors, not full art.

  - copy is a “ready” idea which an artist don’t develop, doing exactly the same. Generic.

  It’s a lack of respect from a company contract another artist to copy
  me.

  Harper Collins already knew when contacted me that this art was already
  in use in
  another book. How a well-known company could accept 2 books looking the
  same? This is not inspiration, this is a revenge. “They want it and get
  it”, doesn’t matter what the real artist thinks about it. They paied
  4,000 dollars to a thief copy me. No words, really.

• [Glich]

  This is a close one..   There is a lot of similarity there but i would say inspired by not copied.  just barely.

• [mixtemedia]

  HarperCollins is a NewsCorp imprint – the same Murdoch organization that engages in hacking and spying in the US (http://gawker.com/5793012/roger-ailes-caught-spying-on-the-reporters-at-his-small+town-newspaper) and UK (just about any edition of any media outlet besides FOX). They are also spearheading the drive to force public libraries to repurchase electronic materials after just 28 circulations, considerably fewer than physical items usually get.

  That said, it also looks like a blatant ripoff.

• [Paolo Zago]

  I don’t want to be rude but we are not talking about fine arts here, we are talking about putting together stock material, adding something painted and a little effects… HC wanted that particular composition, the artist refused to sell the picture for her own reasons, HC asked another artist to produce a similar ocmposition. “How a well-known company could accept 2 books looking the same?” Well maybe they don’t give a damn about it, you know, I am not Hc, and the artist is not HC too…