Re: Re: Art and trademarks

Subject: Re: Re: Re: Art and trademarks

Comments:
: : Impressionist art reproduced in a new genre.... : : example being a french cafe scene circa 1870 with today's product placement digitally superimposed on the art. ie, Starbuck's coffee cup on the table, or a United Airline's aircraft flying over. Would this be trademark infringement? : Despite what some other commentators have suggested, it is not necessary to write a treatise to answer your question, instead, let's just take a look at what learned counsel has written in 2 of the most recent entries in this BBS: : QUESTION: I read a novel recently that talks about someone "drinking a Pepsi" I looked for a disclaimer and did not find one. Is it public domain to have a character, buy or use a certain product? : ANSWER: Trademarks are free to use in any way other than infringement and unfair competition. : : ADDITIONAL COMMENTS: In your case, so long as the painting was not made in a way that suggested or implied that the work was commercially prepared by, or endorsed by the trademark proprietor, AND so long as the purpose of the work is not to be used as a misleading or competitive way to the products themselves, NO, it would not be infringement. : AND if I am correct in my understanding that your IDEA is to include such representations of modern trademarks on a old popularized painting that has fallen into the public domain (perhaps to make a statement regarding the pervasiveness of corporate culture having changed our daily lives and added to the revisionist history of Impressionist painting), I must say BRAVO, even with minimal changes to the existing work, you could establish a copyright in the new work and YES, that would likely be a fair, non-infinging use of trademarks. : (After all, the painting does not COMPETE with the trademarked goods, nor does the Novelist or Director who includes a Pepsi in their stories.) : ANOTHER QUESTION: How substantial must the changes be to an existing piece of artwork before a new copyright to the altered piece can be established & then sold? : : I've heard figures ranging all the way from 10% to 'seven significant changes' : ANSWER: In truth, it's not the differences that count. . .it's the similarities. : When a work bears a substantial similarity such that it represents an unauthorized use or taking of copyrighted material, an infringement action will likely be validly supported. : The 98% rule, the ten percent rule, and the seven significant changes rule are all urban myths that pop up online, but they don't teach in law school. : When an Artist legally alters an existing work of art, (e.g., by painting a mustache on the Mona Lisa) the Artist does not claim a copyright to the underlying work, but instead, properly disclaims any such copyright and thereby obtains a copyright only in the DERIVATIVE WORK. : Thus, the Artist may claim a copyright only in the changes (and the resulting expressive impact of such changed work). : In his painting "Stars & Stripes," American Artist Jasper Johns does not obtain any rights to the "Old Glory" design sewn by Betsy Ross, but rather only may copyright the expressive aspects of his painted representation of the flag on canvas. : His resulting "derivative work" does not protect the subject matter of the flag, only his own creative expression contained in his unique representation. : For more information about copyrights - come visit the pros at www.copyrightpros.com : For more information about trademarks, come visit the experts at www.BrandXperts.com : Anderson & Shippey : WE PROTECT IMAGINATION

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