Donato Giancola psoertodnSa24h 927u:m0081c1ct039gaf29fc66lr h7htata31g4M975 · Wow. Nearly speechless, but not speechless enough not to contact a lawyer. Copyright infringement. What were you thinking Wizards of the Coast? To be clear, there are exacting details in the neck, arms, background, and hand which show clear copied structures from my art. Copied and pasted. This is not about ‘similarities’ , this is about direct copying.

Giancola v. WotC

So, the Magic the Gathering1 Wikipedia Magic the Gathering <https://en.wikipedia.org/wiki/Magic:_The_Gathering> drama circles have ignited by a public statement2 Donato Giancola, 26 March 2024, Facebook <https://www.facebook.com/donato.giancola.7/posts/pfbid02sseDdjseRuve7SBXfWAcdKB2vVmjd5fkjZGQv4idrJVteKgeUHJqvGHaDW19y6gZl> issued by legendary fantasy artist Donato Giancola, calling out Wizards of the Coast3 Wikipedia Wizards of the Coast <https://en.wikipedia.org/wiki/Wizards_of_the_Coast> (“WotC”) over the work of their contracted artist,4 Fay Dalton. Personal web site of Fay Dalton <https://www.faydalton.com/about> At the time of writing it has 1.7 k “likes” and 481 shares.

A three part image which shows first the image of the Magic card "Trouble In Pairs", then a zoom in of the artwork that Giancola made for "Cyberpunk 2020: Ravengers" which has a near identical figure in it.
Giancola’s image he uses to illustrate the copying.

For reasons that are unclear to me… there seems to be a trend to claim a lawsuit is in the works and that Wizards of the Coast will lose because… some hands look like other hands. So, briefly let’s look at the causes of action that people think are available… and how that’ll go.

At this time, I can’t find any evidence of an actual lawsuit. Anyway, my name is Kim, I’m a law student in New Zealand – I’m not a lawyer, certainly not a US Copyright lawyer and most importantly I am not your lawyer. None of this is legal advice and please, do not take legal advice off blogs or assume you have a confidence relationship like lawyer-client with the a blogger.

Copyright

The first and most discussed is the idea that Giancola can sue for breach of copyright for the stolen artwork. There a number of obvious problems with this:

  1. Donato Giancola made the artwork for R Talisorian Games,5 Wikipedia R Talisorian Games <https://en.wikipedia.org/wiki/R._Talsorian_Games> almost certainly as work for hire where they would own the copyright. So he would need them to sue Wizards of the Coast on his behalf.
  2. Drama analysts have already concluded that he was not the only artist who’s work seems to be present in the artwork.
  3. Collage has an awkward history in art and intellectual property.

I’m not interested in promoting drama accounts, most of them have generally showcased a complete contempt for the notion of art as anything but a vehicle for creating more drama, so I am just going to jump straight into how complex collage can get under Copyright Law in the United States, with a classic piece of pop art.

Just what is it that makes today’s homes so different, so appealing? by Richard Hamilton

In 1956, the image above was created as a fine artwork, without Hamilton doing a single brush stroke – all the work was cutting out and pasting on board to create the final image. For this reason, art classes on the Pop Art era tend to focus on the discussion of is this fair… is this right?

Legally, the stance of the Common Law system is yes, provided it was sufficiently creative and original. In this case, which he used pieces images from numerous sources to make a new, unique image – which is deliberately intended to be an artwork.

Now, there is no bright lines, but there is definitely an argument to be made there – so realistically it is unlikely to be economical to pay lawyers to do research on every spat over this that resulted in a judgment, the exact wording used and the timeline of changes.

To be clear, I’m not claiming

Breach of Contract

People who I believe know a lot about it claim that Wizards of the Coast require all their contracted artists to agree to create only entirely original works, and thus this should be a breach.

The problem with this is the notion of privity.6 Cornell Law School Privity <https://www.law.cornell.edu/wex/privity> Neither Giancola or R Talisorian Games is involved in this contract, so best case scenario for them is some sort of indirect revenge if Wizards of the Coast chose to pursue breach of contract against Dalton.

Negligence

The last avenue is the tort of negligence,7 Cornell Law School Negligent <https://www.law.cornell.edu/wex/negligent> the foundations of which are:

  1. Duty (the defendant owes a duty to the plaintiff)
  2. Breach (the defendant breached the duty)
  3. Cause (the breach actually causes something to happen, and is not without consequence)
  4. Harm (specifically, it causes a type of harm to the plaintiff)
  5. Damages (the harm is a type which can be remedied by the court, usually with money or a specific order)

The major challenges here are the notion of duty, and the notion of harm.

Duty

That Wizards of the Coast has a clause in their contracts, doesn’t automatically create any sort of duty to anyone outside the contract. So essentially the argument is that Wizards of the Coast owes a duty to every artist, to make sure that their art is never appropriated or referenced.

Now don’t get me wrong, it would be amazing if a company like Wizards of the Coast did have a duty like this – but it would likely get shot down in court by them pointing out the costs and difficulties there’d be in trying to ensure that they never do this by accident.

There is no official database on artworks created, there are no bright line standards on what is and isn’t copying, and while you generally expect an art director to spot it – that’s really a duty they have to their employer and then the standard would be “to use reasonable skill and care” not a 100% success rate.

So, that would be an uphill battle.

Damages

But assuming that they can convince the court to create massive upheaval in publishing by inventing a new generalized duty to the public… they’d need to prove that they suffered some sort of damage her.

That would mean Giancola would need to show that he lost money as a result of Fay’s artwork. Specifically, as in he would need to show that it diminished his ability to secure new work, etc. It’d be something he’d need to submit his books and open himself up to accusations of other causes.

And, because people always bring this up: Suffering is very difficult to obtain damages for in torts like these, because it can’t just be being upset – it has to be something either quantified by a professional (such as a psychologist giving a PTSD diagnosis) or something quite outrageous (like being spied on while you shower).8 Wikipedia Intrusion on seclusion <https://en.wikipedia.org/wiki/Intrusion_on_seclusion>

Conclusion

That plenty of people are going to look at the comparisons and assume it’s a slam dunk means that Wizards of the Coast will be heavily incentivized to offer Giancola a generous settlement so as to avoid a prolonged battle in the court of public opinion.

Giancola would be heavily incentivized to accept it, because prosecuting it in the court of law would be slow, incredibly expensive and extremely risk on his part – any lawyer he employs who doesn’t explain that to him is being negligent (see above).

Fay Dalton may get a demand from Wizards of the Coast to return their money, and or extra for the chaos – but is likely to be more concerned about the damage to her reputation and/or concerns future clients will have.

So, I wouldn’t hold my breath waiting for a big court case… but if it happens, I will look into the filings and comment further then.

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