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Artist Lawyers Up After Realizing Starbucks Swiped Her Style

by Hrag Vartanian on November 15, 2011

Ophelia Chong's work (left) looks a hell of a lot like that Starbucks illustration (right) (images via opheliaswims.com)

Last Friday, artist Ophelia Chong had the kind of day most artist’s dread. On that fateful day she was told by one of her students that Starbucks was using graphics that looked a great deal like hers that  well, judge for yourself [above].

I asked Chong what it  felt like when she saw the evidence for herself. This is what she responded with via email:

Scene: 30 seconds of staring at my cellphone with the image sent by my student.
Ophelia: WTF.WTF. OH MY GOD.
They are diluting my work, my brand.

Chong isn’t going to take this lying down and she’s retained a lawyer.

An accomplished designer, writers and illustrator, not to mention a professor and an artist who has six gallery shows in the last year alone, Chong has been active online for years. I asked her if this copyright infringement has dampened her enthusiasm to post her images online.

“No, it hasn’t changed my mind. All my work has been published through Flickr. I’ve had a website since 2000 and publishing on Flickr since 2006. I’ve had half a million views of my images since I started on Flickr,” she says proudly.

Another example of Chong's work and the Starbucks branding. (via opheliaswims.com)

She knows that posting online has also exposed her work to more people and lead to book projects that she believes she would not have had otherwise. “I will not stop doing that. Posting online has gotten me a lot of work and a even a representative in New York. It’s a great tool. Whatever you do, just posting any image on the web, it can be taken. But if you don’t then how are people going to find you?” she says.

The artist says her book, containing her images and style, have been show to all the ad agencies by her reps, so she doesn’t understand why they simply didn’t hire her rather than rip her off.  “It looks exactly like what I create,” she says. And she’s right. From the shape, to the style and the colors, there is an uncanny resemblance to her work.

“Starbucks has a motto on their Company page ‘Being a Responsible Company.’ It goes only as far as their doorstep when it comes to being responsible to the rights of artists,” she said on her personal blog.

Now it’s up to the courts to decide.

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  • Reid Singer

    This lecture by Yves-Alain Bois–besides making points that could take the wind out of Chong’s claim–really knocked me off my feet.

    http://artoridiocy.blogspot.com/2008/04/yve-alain-bois-pseudomorphism-what-to.html
    http://dova.uchicago.edu/files/bois.mov

    “Pseudomorphism: What to Make of Look-alikes?” is absolutely worth watching, regardless of how you feel about what Starbucks has done.

  • Dean Wermer

    “Starbucks swiped her style”: that’s a conclusion.  I don’t see the swiping.  Both flames/buds, so what?  Same general idea does not equal infringement/swiping.  As dumb as the recent claim against Ryan McGinley.  

    • http://hragv.com Hrag Vartanian

      I guess the courts will have to decide. 

      • Anonymous

        here is more to add to the case from the amazing breaker iphone game.

  • Anonymous

    I’m no fan of Starbucks, but this seems pretty ridiculous. For one thing, the “pretty textures inside a vector illustration” motif has been ubiquitous for at least a decade. It’s really not so terribly original. 

    Anyway you shouldn’t really be able to copyright a style. Yeah it sucks when this happens. Not long ago a movie poster came out that bore remarkable similarities to some paintings of mine that had gotten a little exposure ( http://www.daemonsmovies.com/2011/02/17/cracks-new-movie-poster-with-eva-green/ vs. http://www.buzzgrinder.com/2010/a-grand-design-born-ruffians/ ). It was definitely irritating, but I knew better than calling a lawyer. I get that Element Pictures isn’t exactly at the scale of Starbucks, but, still…

    It is almost as dumb as the McGinley case, if these kinds of cases start going in favor of the plaintiffs, we are going to see an onslaught of frivolous suits that will do much more harm to artists than good.

    • http://hragv.com Hrag Vartanian

      Even if you disagree with her claim, this is far from the McGinley case, come on.

      • Anonymous

        I said almost, it’s definitely not AS ridiculous. 

        But I don’t think the Starbucks illustration looks any closer to Chong’s work than the photos in the McGinley case. The Starbucks illustration is beyond generic, you could easily find hundreds of nearly identical images.Chong’s work is better than that, I just don’t think she has a case here. I also don’t think she’s doing her work any favors with the comparison.

        • http://hragv.com Hrag Vartanian

          The part that’s really interesting is that the agencies have seen her work and I wonder if she can trace back that with proof and make a compelling case. As we all know these things are about the law more than anything.

          • Anonymous

            And if they liked her work they should have hired her, sure. I don’t think the comparison is close enough to prove that. 

            To be clear I’m not worried about Starbucks (or whatever agency does their packaging), maybe people should be suing Starbucks constantly. I’m worried about precedents being set where next time it’s Starbucks coming after some individual. Intellectual property laws are more often the bludgeon of powerful interests than defender of the little guy.

          • Dean Wermer

            I’m not sure access matters if there is insufficient similarity.  Think of a case where two illustrations are clearly quite different.  If an agency had access, I would think that would be insufficient for a claim. In other words, access may be important if there is a base level of similarity, but my guess is if there is not, that’s not going to get one to a valid claim in and of itself.

            Thought exercise:  one goes to a number of illustrators (let’s say two dozen) and asks for an illustration (for use on a coffee product) of flames, using a color scheme of purple/red/orange/pink and throw in some coffee beans.  How many resulting illustrations would be as similar to Chong’s work as the existing Starbucks’ illustration?  I’m betting quite a few.

          • http://www.issuu.com/rockstardesigner Roger Dela Rosa

            I have a feeling that starbux went about this like your “thought exercise” and after seeing examples of ophelia’s work, they asked illustrators to come up with an illustration of flames, using this specific color scheme but to make it “original”, throw in some coffee beans. its very shady.
            and I completely disagree with you that “quite a few” illustrators would come up with similar illustrations. its just too close to ophelia’s work.

  • http://opheliaswims.com ophelia_chong

    hi all, thanks for the feedback. It is similar to being a parent, i can see the similarities and colors. Yes, the shapes are generic, however i have been working in this style for years and been published. My work has been viewed half a million times on flickr (the collages alone account for 7/8 of that). My work is not digital, it is all hand done. If you want to show that Starbucks’ flame is similar to more than mine, than i challenge you to find work that is similar to both of our’s.
    Plus I am not going to be the artist that says “oh wow, i am not going to fight this”. I have worked in this style and it is the way “I paint”. 

  • http://opheliaswims.com ophelia_chong

     Yves-Alain Bois says a body of work, single works can be compared to single works, but compare the whole body of work. Starbucks has one single work, i have a body of work that i can show that is made entirely by me. 

  • Eva Lake

    Doesn’t the artists’s work include someone else’s painting…? Or is it OK because the other artist is dead?
    As an artist I use art history too. Just sayin’…

    • http://opheliaswims.com ophelia_chong

      If you are the artist Eva Lake, then I have to tell you that I have been an admirer of your work since seeing it in the same book that we are in “Cutting Edges”. I believe I have to do this because I am listening to my instincts. However this turns out, I will have learned a great life experience and will be able to impart this to my students and friends. Your comment is food for thought. 

      • Eva Lake

        Yep, that would be me. Glad you like my work. I’ve got to get that book!
        …This all reminds me of a weird anonymous call I got once. The caller was pissed about a piece I made which was reproduced in a mag. The collage used Warhol’s Flowers and she was all up in arms about it. But didn’t Warhol steal the Flowers? They were not his to begin with. And neither are those paintings you’re using. That’s OK by me… but if I was the Starbucks lawyer, I would dive into that terrain.

        • http://hragv.com Hrag Vartanian

          Aren’t works older than 100 years in the public domain anyway? The same reason you can publish a book of Shakespeare, etc. with no copyright problems.

          • Eva Lake

            I think you are right, Hrag, 100 years.

          • http://opheliaswims.com ophelia_chong

            Eva, you are the corporate attorney muse. 

          • Eva Lake

            Muse? Wretched role. I hope not.

          • http://opheliaswims.com ophelia_chong

            eva, you are the muse of color. that’s what you are. :O)

          • http://twitter.com/BrianSherwinArt Brian Sherwin

            True, but then with images of art in public domain…. a museum, for example, can own rights to their photographs of the painting, for example. In other words, if I take an image I find online of some old painting and cash in on it… some museum — or an owner of a private collection for that matter — may have room to file against me and win if they can prove that the image I used originated from a photograph they took of the specific painting. Fortunately, I can think of several  museums that make images of their collections available for use.

  • Anonymous

    This is nuts. It’s a huge leap to tell whether or not whoever designed the Starbucks image saw, at some point in their life, the artist’s work. Elementary school children in art class have created something similar out of petal shapes for years during lessons on creating organic looking flowers using repeated leaf shapes, patterns and layering. Also not that it should have too much bearing on her argument, but you seem to be arguing from authority when you call her a professor when the reality is that this artist’s professorial cred is that she has taught an adjunct class in – wait for it – self promotion. As for the flame motif, don’t you think there’s a greater chance the packaging designer had no idea how to draw (I’m kidding btw) and copied the motif from this learn to draw fire online tutorial? The results sure look closer to that than Ms. Chong’s work.

    • Will Brand

      Yeah, I’m not convinced either. The thing for me is that the shape of the petals/flames is really the least interesting thing Ms. Chong seems to have going on; as shapes alone, there’s almost nothing novel about them. If Starbucks were using art-historical images, or collaging leaves of interesting textures together, I’d be a lot more convinced. Right now, this seems either opportunistic or deluded.

  • http://www.postlinearity.com gregorylent

    seems a complaint originating in the contemporary western culture … 

    the concept of ownership of idea is really strange from a mystic, or an eastern, or a traditional pov

    everything is connected to everything, no matter how blind we wish to be to that.

  • Steven Mesler

    Hrag,

    She should talk to Lane Twitchel about his experience working with them.  It might give some insight or a connection that might just lead to somewhere more constructive then a lawsuit.  http://www.lanetwitchell.com

    Lawsuits suck even when you win.

  • http://twitter.com/BrianSherwinArt Brian Sherwin

    First off, you can’t copyright style. Anyone can work as she does style-wise and there is not a damn thing she can do about it. I’m one of the strongest copyright supporters out there — but honestly… I don’t think she has much of a case unless she can prove that Starbucks had access to her work and even then nothing is certain. It may be that whoever Starbucks hired ‘ripped’ her off. That said, it is not like she can go after every flame-like image or logo out there.

    The irony of this story is that I’m reading so many people bashing Starbucks — and the same people were supportive of Shepard Fairey when he ‘ripped’ off the AP photo directly — his use was damn near line for line a perfect match. So let me get this straight — what is OK for Fairey to do is not OK for Starbucks or another corporation to do? Shepard admitted that he worked directly from the photo and some of these same people showed him nothing but support. Wow.

    Seriously though… does she own every flame-like image now? You could say they both ripped off those tacky Statue of Liberty shirts from the 80s. Ha.

  • http://twitter.com/BrianSherwinArt Brian Sherwin

    Also, just because her rep sent her book to ad agencies does not mean they viewed it. Whoever came up with the design may have never observed her work… the book may have ended up in the dump (hopefully recycled — but probably the dump). And like someone else mentioned — both images look like the basics of a project common in youth art classes. In fact, I recall I had to do something close to this when studying art methods in college. I was on the track to become a teacher at the time.

  • Domain Admin

    I agree with the other posters, this doesn’t really look like a rip off to me, Chong’s work is much more intricate, layered and beautiful then these generic illustrations. I see it more as a zeitgeist situation, maybe someone saw a flame somewhere, and decided to throw some images inside it and see if Starbucks bought it. It’s not that far fetched to assume an illustrator/designer would use a flame icon to illustrate the concept of “roast.” Best of luck if you take this to court though, if it was indeed an imitation it is a crappy one and that alone is cause for judgement.

  • Krista Azzara

    The premise for me is this; if it’s accepted that artists can appropriate as a valid form of art making        
    do these law suits smack of art world hypocrisy?

  • Anonymous

    Regarding copyright issues/100 years – from what i understand, it’s actually a lot more complicated than just that. As a previous poster mentioned, a museum might retain the copyright of a piece that is older than 100 years. Likewise, an artist might (and often does) retain the copyright of a piece that they have sold – either to a museum or an individual/corporation.  However, if an artist incorporates/appropriates another’s piece in such as way that it is obviously not the original (think “Warhol”) and is not trying to pass it off as the original (think *potentially* our “case” here, with Starbux), then that is fair use. 

  • http://pulse.yahoo.com/_BSQIO3CZLSKBNH66CGCLZ7XL5E jr

    I hope for the best for you, but I have my doubts; I created a style for a BMW motorcycle shop in ’85 that has been copied by BMW, Yamaha, Bombardier, even Tempur-Pedic and LOTS of others, but aside from that warm feeling of knowing that what I came up with was good enough for others to copy, I’ve never thought that there was anything I could do about it. Take the flattery, the only one who will profit will be your attorney, chances are that Starbucks (rhymes with burnt coffee sucks) hired an outside firm for the design any way – might be an opportunity to solicit them directly for future business!

  • Anonymous

    uh oh more infringement! from the amazing breaker iphone game. Did they get this from Starbucks, Chong or the subconscious mind?

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