Saturday, March 14, 2009

Illegal Art #2

Today copyright owners are likely to sue artists who appropriate their work, after all they now understand the full value of brands. In fact, Shepard Fairey has done his own share, suing people for using "Obey" attached to their artwork. The question becomes for artists not whether you can win but whether you can afford the lawsuit.

Quoted in New York Times article from 2003

"Legal worries convinced Diana Thorneycroft that she should pull several drawings from a recent exhibition in Winnipeg, Manitoba. Canadian law does not consider parody fair use. The pieces, now on display as 'Foul Play' in 'Illegal Art,' depict dolls of familiar characters like Mickey Mouse and Bart Simpson being bound or 'killed' by hanging or gunshot.

'I think my drawings are clearly dealing with parody,' Ms. Thorneycroft said. 'But you know — I mean, murdering Mickey Mouse, the people who work for Disney may not agree with that."

However there was a lawsuit that gave me hope. It was one between Tom Forsythe, a photographer and Mattel, relative to the series, "Food Chain Barbie." At the end of a decision where Forsythe prevailed, Forsythe's legal team asked for all legal costs to be paid by Mattel to send a message to corporate America that artists do have some rights in fair use, especially the one of parody. The firm Howard, Rice, Nemerovsky, Canady, Falk & Rabkin did pro bono legal work for Forsythe in excess of $1.5 million in defense of the case and Forsythe personally spent in excess of $200,000 for legal out of pocket costs. After a round of appeals, the District Court echoed the Ninth Circuit and ordered Mattel to pay all legal fees and expenses. That award of $1.8 million is on top of an award of $300,000 for the cost at appeal, with Mattel writing a check for $2.1 million.

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