FAIR USE OR WILLFUL COPYRIGHT & TRADEMARK INFRINGEMENT?
The following is my very lengthy response to the press release put out by the Greenburg Traurig form regarding The case is Michel Keck v. Mix Creative Learning Center, LLC, et al., case number 4:21-cv-0430, before U.S. District Judge Keith Ellison.
Mix Creative Learning Center (Artmix) is owned by Jacqueline Kenneally
Warning if you are not someone who makes your living selling your art you probably won't read this to the end so the short of this story for those of you who are not fighting every day to protect your copyrights and trademarks you can read the short of it all here.
Those six dog images shown above are my copyrighted artworks. The are registered with the U.S. copyright office. That picture shows part of what was inside a 'Michel Keck dog art' kit that was sold for profit on Ms. Kenneally's website online. The following picture shows the rest of the context of the box that shipped out as Michel Keck Art Kits.
A shoddy cardbox of cheap paints, a wee bit of modge podge, a sponge brush, and some paper scraps accompanied 6 images of my copyrighted works. The above two pictures are the contents of the 'Michel Keck dog art' kits that were being sold for $40 each by Ms. Kenneally on her Artmix website, without ever asking my permission to do so.
It is really important to note that there was nothing at all to be considered 'instructional' about this box of junk. This was nothing more than a scam product created to market off of popular artist's images and names.
The following picture shows you how the kits were sold on her Artmix website.
The two dog photos, which are derivatives of my dog collage works, were used to show others that if they bought the kit they would be showed how to create art works like Michel Keck. Just to restate it, all of this was done without my permission and for profit.
Let me begin...
A question for artists: Can I take an artist’s images off their website or Google, use that artist’s copyrighted images along with the artist’s trademark or name to create an art kit /class to sell for profit and ship out through the mail without having to ask the artist’s permission to do so?
If you are an artist and you find yourself screaming “NO!!” at your phone or computer screen right now, please keep reading because according to one judge, that above scenario has been considered fair use and any artist could easily find themselves in that same above situation.
Quite some time ago I became aware of a website that was selling Michel Keck dog art and Michel Keck cat art kits for $40 each. I was in shock to see this because I had never granted this company permission to use my name to do so. My nephew ordered to see what these Michel Keck kits contained. When he opened the box he found that there were 6 of my copyrighted images shoved in a box with some tiny plastic cups filled with cheap paint, a miniature plastic cup with about two tablespoons of modge-podge, a cheap paint brush, 1 sponge brush, some paper scraps with some patterns, a paper silhouette of a dog head, and some photocopied pictures of dogs eyes (similar to how I create eyes on my dog collage works).
After being made aware of the what I believed to be willful copyright and trademark infringements against my intellectual property, I reached out to one of the law firms that assisted me with previous copyright infringement matters. Their opinion was also it was copyright and trademark infringement and said they would file a lawsuit on my behalf. Other attorneys I spoke with concurred their belief was this case was copyright and trademark infringement as well. I gave the attorneys my permission to proceed with legal action.
I want to point out that over the years numerous art teachers in public & private art schools have contacted me to ask my permission if it would be okay to create lesson plans around my artwork styles to share with their students. In each and every one of those cases I gladly granted those teachers permission to do. These art teachers were teaching children in a classroom setting for instructional purposes only and not for profit. Those closest to me know that I have often stated, both publicly and privately, that teachers sharing my art with the children in their classrooms is one of the things I am most proud of about my art career.
It was very easy for all of those teachers to not only contact me, but to get a prompt response from me. My phone number and my email addresses can easily be found on my websites. One tiny search of my name and you will immediately find my websites and how to get in contact with me. Ms. Kenneally never bothered to contact me to ask permission to use my trademarked name or my copyrighted images. If she had asked my permission to use my trademark and my copyright images in the manner she wanted to, I would have never granted her permission to do so.
Very recently I was contacted by my attorneys to tell me that they had unfortunate news, and that the judge in my case threw my willful infringement case against Ms. Kenneally and Artmix out claiming she had ‘fair use’ to take my copyrighted images without my permission and to put them in a box along with my trademark name, sell it for money on her website, and ship it out to her customers through the mail. My attorney stated the judge could very well have gotten this wrong and that I can appeal. Two other attorneys who are well versed in this case have encouraged me to appeal this case as well. My attorney also informed that in addition to the fair use ruling, the opposing party also requested leave to file a motion for attorney’s fees and the judge granted them permission to file that motion. That means Ms. Kenneally can force me to be held legally responsible for her attorney fees. Ouch!
If you are an artist I know your jaw is probably on the floor right now. I have not yet spoken to one artist or art teacher that has heard the details of this case and the ‘fair use’ ruling it received and agreed with the judge’s decision. Not one. I truly believe that any ‘artist’ or ‘art teacher’ that feels that the above scenario should be legally considered fair use has either already profited off the sales of another artist’s images & name without permission or plans to do so in the future.
I posed the question I started this article with in a private art group I belong to online to get honest feedback from other artists. Every artist that has responded to date is in strong disagreement with the judge’s fair use ruling on this case. The following are real comments from real artist's who earn do their best to earn their living selling their art.
- Absolutely not. Prior or using anyone’s work or name, you must have permission, particularly if you are planning to profit from their work – then you need to pay them. If it is not yours, you cannot use it.
- I think you should start a Name and Shame campaign on social media, and reach out to a reporter who can cast a spotlight on your situation.
- This is exactly what we are fighting against as artists. People stealing our work, our style our years of hard work.
- This is the biggest NOPE ever.
- Doubtful!
- Do the right thing, get permission first.
- It is hard enough on artists as it is.
- Whatever judge said that, has no idea about copyright law. For me art is all I can physically do. Unless I get permission to use a friend’s photo, I take all the photos I use as reference, normally, my horses, cats, flowers, etc. Then I create from that. My art is copyrighted. Yet people think it is okay to steal and resell my art. That is not kosher on any level. Think about it, as someone taking your hard-earned paycheck, you get for being say a car mechanic, because they think they need it more. You are left with nothing. How would you like it? The judge should know better.
- Is this a joke?
- Using their images and names without permission? No way!
- Can we write letters to the judge?
- Hard pass and I find it insulting.
- You can not profit if claiming fair use. It’s more for news and editorials. Don’t do it. You can sell your own style and name all day long so don’t do that.
- No way!
- That’s a very bad idea!
- Who is this judge that made this ruling? Where do they reside so that I may mail their office to point out how their ruling is unjust?
- The judge is in the wrong as well as the people that are profiting off of your work without consent.
- Get a copyright attorney! Unreal!
- The judge …. needs to be voted out of office and REPLACED by someone who feels stealing is wrong… omg this is such a simple thing and the legal system has complicated it. Stealing is wrong and against the law.
- You’re being unfairly squashed by the big guy with $$$. Turns my stomach.
- This is a miscarriage of justice. The judge is wrong.
- No, people can’t just take other people’s artwork and make a profit by infringing
- Copyright laws – fair use is definied usually in educational purposes as copying no more than 10% of a book/text, image must have noticeable changes and music is limited to very short bursts.
- What the actual f….. who paid off that judge???? I’d appeal!!!
I realize that some of you that may be reading this right now are not sure what constitutes copyright infringement or fair use. Below I’ll provide some information that I feel will help shed some light on both of these topics and also help explain why so many artists and art teachers are disturbed by a fair use ruling in this case.
The Fair Use provisions of the Copyright Act allow an individual to copy and use copyrighted material for specific purposes — including criticism, comment, news reporting, teaching, scholarship, or research — that serve the public interest as determined by four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Below is my own brief breakdown of why I believe Ms. Kenneally’s actions did not serve the public interest by meeting those above four factors point by point.
- Kenneally was selling ‘Michel Keck’ art kits for profit in a retail setting and online for anyone to access and purchase these kits 24/7 from their website. Ms. Kenneally is not an art teacher working at a public school teaching for nonprofit educational purposes, like many teachers I’ve granted permission to.
- The nature of my copyrighted work is a distinctive collage style that I created using various patterns combined with natural photographs of various different body parts of dogs (for example their eyes). All of my images in this case were registered with the U.S. copyright office before we ever found out about this infringement. I pay the to register my works with the U.S. Copyright office so that as an artist I have even greater protections than I would if I did not register them.
Because this second point, the nature of the copyrighted work, is always hard for me to wrap my head around personally, I will provide info below that I feel gives a better explanation than I am able to.
*The following is taken from the nolo.com website
The case of Salinger v. Random House provides an example. A biographer was sued for having paraphrased portions of letters written by J.D. Salinger. Although the public could read these letters at a university library, Mr. Salinger had never authorized their reproduction or publication. Despite the scholarly purpose of the proposed Salinger biography, the court would not permit the unauthorized paraphrasing of Mr. Salinger's unpublished letters as a fair use.
- In regard to the amount and substantiality of the portion used in relation to the copyrighted work as a whole, I would argue, since my exact images were used and sent out with each kit, that 100% of my work was used and infringed upon. Kenneally infringed my works in two ways on her website, in her marketing and in her kits.
- My exact images were used with no changes being made to them, without my permission being given, and they were added to kits that were sold on her websites and shipped out through the mail to the customer.
- Derivatives of my work were used too to show the distinct characteristics of my style. As an artist, it can be legally argued that as the artist I am protected by derivative law to sue for copyright infringement if someone makes derivatives of my artwork.
*The below text in blue is taken from the Legalzoom.com website - -
DERIVATIVE WORKS
There are two ways that derivative rights are protected under copyright law.
First, the derivative work has protection under the copyright of the original work. Copyright protection for the owner of the original copyright extends to derivative works. This means that the copyright owner of the original work also owns the rights to derivative works. There, the owner of the copyright to the original work may bring a copyright infringement lawsuit against someone who creates a derivative work without permission.
- In regard to the effect of the use upon my market and value of my work, I will explain it easily and simply. This product that was sent out, with my copyrighted images and trademark name, without my permission, was laughable at best and a money-making scam at worst. I would have never allowed my good name and copyrighted images to be connected with such a shoddy, worthless product. I do not want my trademark, name and artwork associated with that. It is my opinion that anyone that paid money for these Michel Keck art kits was ripped off. Beside the fact that I am ashamed that my trademark and copyrighted images were ever associated with this so-called ‘art kit’ Ms. Kenneally was selling on her website, I have another issue that I can address under this 4th point.
-----DERIVATIVES
The effect of an individual being able to steal an artist’s images and name to profit off selling art kits not only harms the artist in the initial theft, but it also opens a huge can of worms for that artist by basically telling the public that they too can make derivatives of an artist’s work and sell it for profit. Where in Ms. Kenneally’s kit does she state that it is frowned upon and actually illegal to create derivatives of the artist’s work? The answer is nowhere.
Individuals are taught, from Ms. Kenneally’s kits how to create derivatives of artist’s artworks. But what will the purchaser of the art kit be doing with this new knowledge? Will they be hanging works up in their own homes, or will their intent be to make derivatives to resell so they too can profit of the work and styles created by the original artists?
A fair use judgement in this case is harmful not just for myself and my art business but for all other artists out there that rely on their original creations to earn their income. Our creations are our paychecks. Calling what happened in this case fair use means that I can go to Google or to any artist’s website steal any or all of their images and use them along with the artist’s name to create art kits to sell for profit on my own website without ever asking the artist’s permission to do so. Think of the serious ramifications that would have on all artists, especially those that work in the form of 2-d artworks such as paintings, drawings and collage work. Think about it.
I’ve worked as a full-time, professional artist since 2003 and I believe I have enjoyed the level of success that I have in large part simply because my artistic stylings stand out as very unique & distinctively different. By saying it is fair use for someone to profit off of showing other people how to duplicate our artworks is just plain wrong. Again these kits were being sold on a website that anyone could access 24/7, this is not the situation of a public school teacher sitting with her children and teaching them about how I create my art. This was done for profit and the kits were advertised to each and every website visitor that came to that site, regardless of whether they purchased or not. Whether 1 kit had been sold or 1 million kits had been sold does not matter to the artist. One case of copyright infringement is one too many in the opinion of every artist and art teacher I know.
I believe that some reading this article may not understand that there are two different levels of copyright protection you can receive as an artist depending on whether or not you register you art with the U.S. copyright office.
As artists, if we are blessed enough to be able to afford the fees to do so, we pay the government a lot of money to ‘register’ our copyrights and trademarks with the US copyright office and USPTO. We do this because we are supposed to be awarded special legal protection up and above just the standard copyright protection all creators receive at the very moment they create a work of art.
I have invested thousands upon thousands of dollars with the US government to register my works and my legal name so I could protect myself from this exact type of thing from being able to happen to me. Right now, I can’t help to think what an incredible waste of my money registering my works has been. I know more and more artists are starting to share this sentiment, and it is the rulings like this that have us sour to pay for protection we feel we never receive.
AWARDS OF STATUTORY DAMAGES IN A COPYRIGHT INFRINGEMENT CASE
*the following is taken from the website nolo.com (legal-encyclopedia)
“In many copyright cases, both actual damages and profits are difficult to prove. How do you really know how many t-shirts you would have sold, or how much money you’ve lost, as a result of someone’s infringement? At best, the numbers are murky.
For that reason, the Copyright Act, provides a third category, known as statutory damages --- that is, specific monetary damages set by law. However, only a person who is registered a work with the U.S. copyright office before the infringement (or within 3 months of publication) my receive statutory damages.
Such a plaintiff in an infringement action may opt for either actual damages (and the infringer’s profits, if appropriate) or statutory damages, but not both. It is often said that copyright plaintiffs "elect their remedy.”
Statutory damages are explained in 17 U.S.C 504c. For infringements that cannot clearly be proven as either innocent or willful, statutory damages may be from $750 to $30,000.00 per infringement. The exact amount depends on the seriousness of the infringing act and the financial worth of the infringer.
On the other hand, an innocent infringer may have to pay as little as $200, while an intentional infringer may have to pay as much as $150,000 for a single infringement of one work.
In short, statutory damages, provide a clearly defined remedy for victims of infringement without the murkiness and uncertainty of the first two categories of damages.
The basics of the case were
- Kenneally went online and downloaded my copyrighted images without my permission to be put into art kits and sold without my permission for profit. Ms. Kenneally could have easily contacted me via phone or email to ask my permission but she did not. Art teachers around the world have easily contacted me to ask my permission to create art classes to teach my styles to the students in their classrooms.
- Kenneally used my trademark – Michel Keck – without my permission.
- Kenneally did not use my images and name in purely not-for-profit instructional purposes with children. Ms. Kenneally charged a fee to profit off the sale of these ‘art kits’ which were sold to anyone who came to her website to purchase.
- Kenneally shipped my copyrighted images and trademark through the mail in art kits that did not include any statements or warnings to the end user that creating derivatives of another artists works for sale purposes might infringe on the original creators rights.
It is my opinion that because of this very skewed ruling of fair use in this case, now literally anyone can pop onto Google or any artist’s website, download any of their images without ever asking the artist’s permission and create art kits/classes to teach anyone how to make derivatives of an artist’s work and sell those kits for their own personal profit.
With a fair use decision on the facts of this case, I do not believe there is any reason at all that any artist should every pay another penny to the U.S. government to register copyrights on their works in the hopes that they will be protected by statutory damages. None.
I am very curious to know what would happen to me personally if I would wake up tomorrow and do the exact same thing that happened to me in this case. Let’s say I started selling art kits from my website with the copyrighted images and trademark names of other artists for my own profit do you think I would be able to. Do you think a judge would rule ‘fair use’. I absolutely believe that I would be sued for willful copyright and trademark infringement (and rightfully so). Hmmmm.
Again, had Ms. Kenneally asked my permission to use my name and images, which she did not, she would not have been granted permission. I have not and I will not ever grant permission for someone to use my copyrights or trademark in this manner. It is my legal right as an artist and copyright holder to choose what products my registered images and trademark name get attached to. Period.
After the fair use ruling was issued by the judge a press release was put out by Ms. Kenneally’s firm in which she was quoted as saying the following…
"I am so grateful to Greenberg Traurig Shareholders Roland Garcia and Mark Chretien for all of their help, knowledge, and kindness," said Jacqueline Kenneally, owner of Mix Creative. "This result is an enormous relief for ArtMix and me, as well as other art teachers and artists everywhere. Thanks to their good work, I can resume teaching my students about artists from around the world, continuing to give them full credit for their inspiration with more joy again after this nearly two-year-long journey."
The full press release can be read at the following link
I have quite a few friends who have dedicated their lives to working as art teachers in the public school system. When I shared with them Ms. Kenneally’s comments in the press release issued by her attorneys, each of them strongly disagreed with her statements.
Let me assure everyone reading this article that a fair use decision on this case is not an enormous relief for artists and art teachers everywhere. In fact, every artist and art teacher that I’ve personally spoke with this about this fair use ruling, is extremely fearful of what this type of ruling means for every artist. Every artist can now fall prey to this exact same type of situation happening to them and have no legal recourse. This is a shame.
Artists work extremely hard to earn a living through the creation and sale of their works. To see a judge’s ruling that anyone is capable of using our copyrighted images and trademarks without our permission to sell for profit on their websites under the guise of ‘educational use’ is an extreme worry to all of I’ve spoken with. An artist’s job is difficult enough without the added pressures that the law is not on our side but on the side of those who use our intellectual property without our permission to do so. Lest we forget, the artist has the additional stress that they can also be legally liable for paying the legal fees of the person/entity that profited off their registered copyrights.
I just want to end by noting that there was no mention anywhere in the ‘Michel Keck art kit’ Ms. Kenneally was selling and shipping without my permission, nor any mention on the Artmix website that my images were registered copyrights or that my name Michel Keck is a registered trademark. There was no information included in the ‘Michel Keck dog art kits" being sold by Ms. Kenneally's company to discourage the end user from making derivatives of my artworks for the purpose of resale. Lastly, it is my strong opinion and the opinion of many other artists and more importantly art teachers, that the contents of the art kit could not be construed as instructional in any way, shape or form.
In my opinion, and the opinion of many other hard-working artists and art teachers, the judge in this case got this ruling so very wrong. Artists beware.
