This exhibit features 50 artists whose modern art distort idealistic childhood images. The pieces in this collection are deliberately shocking. Scrolling through photos of this art, you may notice that the works of art make use of existing trademarks and copyrights that the mark holder may not authorize.
Artwork above = Dare Wright on left and Robert Gober on right.
Jennifer Rubell's Lysa III sculpture is a nutcracker doll Mattel has yet to make.
Chapman Brothers, Doggy
Is it fair for people to make money using the intellectual property of others?
Play Date by John Waters
Do mummified Barbies or a hairy Ken infringe Mattel's rights? Is it acceptable to use customarily PG works of others in sexualized creations? Or a Nike swoosh along with Nike branded sneakers in art?
For questions like these concerning infringement, a U.S. court would consider the defenses to infringement.
The Copyright Act allows fair use as a common law defense. Fair use protects secondary works from copyright infringement claims if the works borrow from original works in particular ways. Section 107 of the Copyright Act provides that the fair use of a copyrighted work, for purposes such as criticism, is not an infringement of copyright. Fair use is an affirmative defense, so the burden of proof falls on defendants to justify the alleged copyright infringement.
A 4-factor test can be used to determine whether the use of a work in any particular case is a fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
According to the Ninth Circuit, the fair use doctrine confers a privilege on people other than the copyright owner, “to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.” The doctrine is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public’s interest in the dissemination of information.
A parody is when someone imitates another's work to comment on the original work for comic effect or social commentary. Parody is a defense to trademark infringement. As long as a parody can be reasonably perceived as commenting or critiquing an original work, its original purpose is inconsequential.
Mattel, Inc. v. Walking Mountain Prods: In Mattel, the court ruled that works by Forsythe were a parody of Barbie and deemed highly transformative. Here photographer Tom Forsythe, who produces photographs with social and political overtones, developed a photograph series entitled “Food Chain Barbie.” The photographs depicted Barbie dolls in various absurd and often sexualized positions. After four years of litigation, this case was ultimately ruled fair use.
Campbell v. Acuff-Rose Music, Inc.: In Campbell, the court held up the fair use defense. This case concerned a rap song by 2 Live Crew. The rap song, entitled “Pretty Woman” borrowed from the Roy Orbison ballad entitled “Oh, Pretty Woman.” In this case the court held that even though 2 Live Crew’s parody took the first line of lyrics and characteristic opening bass riff from the original and therefore made the heart of the original the heart of the parody, this was purposely done “to purloin a substantial portion of the essence of the original.” By adding misogynistic epithets and explicit sexual demands, juxtaposing and mocking the innocent nature of the original love song, 2 Live Crew’s song had demonstrable parodic elements. There was also a lack of effect on the market for Orbison's song.
SunTrust Bank v. Houghton Mifflin Company: In SunTrust Bank, a copied work was found to be transformative. Here the book “Gone With the Wind” (GWTW) was parodied by an African American author in a work titled “The Wind Done Gone” (TWDG). Here the court stated that “TWDG is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW.” When weighed against each other, the two sub-factors ended falling in favor of the new work: it was transformative enough to illustrate a new expression, so the fact that it was made with a commercial value did not preclude it from proving this factor present. The more transformative the new work, the less will be the significance of other factors.
Rather than rely on fair use, you may be better off requesting a license for uses that copyright owners are likely to allow. Otherwise, keep in mind that fair use occurs when someone uses a trademarked term for its primary definition and not its secondary meaning.