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Re: JAMES GURNEY



Casey said:
>
>Has anyone brought any copyright or plagiarism charges against him?
>

This is about as far from my area of law as dinosaurs are from my former
area of biology.  However, I might be able to supply some parameters.

[insert standard disclaimers about giving legal advice, "based on the facts
you have given us", rules in jurisdiction other than those in which we are
licensed, etc., etc. -- why does anyone even bother to pay lawyers for
opinions, since we have to hedge them so much?]

Supposing all of Brian Franczak's information is correct (and I don't know
one way or the other), exactly what is Gurney misappropriating?  If I paint
a picture of myself in the same pose and expression as the "Mona Lisa" or
the "Odalisque," have I misappropriated anything?  Clearly not.  No one
would confuse my stuff with DaVinci or Rodan (?) even if I had any artistic
talent.  Besides, I don't look like the Mona Lisa or a harem girl: more like
a short, stout, middle-aged male lawyer in fact.

What's the difference between lawyers and dinosaurs?  I mean other than
being archaic and slow-witted at times.  The difference is in the research
needed to depict them.  But this reasearch is of scientific facts which are
free to all comers.  Arguably, Gurney is simply using the work of others as
research tools, in the same way a paleontologist would refer to the work of
others to reconstruct the skeletal remains of a related species.  It would
be poor academic ethics to fail to cite the prior work, but its not a legal
problem.   

"Aha!" you say, "but how about Two Pesos v. Taco Cabana and the trade dress
doctrine?"  Actually, I sincerely hope none of you would really say this,
but one never knows.  Anyway, bear with me for the sake of argument.  If you
were to do so, I would reply in that condescending yet charming manner for
which lawyers are justly famed: "Trade dress applies only and precisely to
those elements of a design that are arbitrary and non-functional.  It does
not apply to design elements which are dictated by science or engineering
considerations.  Thus, it is exactly the scientific fidelity of the
illustration and the research that it took which is unprotectable."  

On the other hand, there are some possibilities in the area of common law
misappropriation.  The burden's higher, though.  It wouldn't be possible to
carry the case on similarity.  You'd have to show intentional misuse for
commercial benefit in most jurisdictions, and I don't know but that the
scientific nature of the subject matter might still be a good defense.  I
suspect its one of those gray areas in which we make most of our fees.

Finally, there are some elements of Gurney's illustrations which, according
to Brian, are purely fanciful: color patterns, lighting, angle, probably
facial expression.  These are non-functional and arbitrary.  They are
governed by artistic, rather than scientific, considerations and therefore
might be protected.   

Interesting question.  I'll ask someone who knows what they're talking about.

  --Toby White