Fair Use or Willful Copyright & Trademark Infringement? (short version)
My name is Michel Keck. I have worked as a full time, professional, mixed media artist since 2003. I earn my living making and selling my artwork online. Quite some time ago I became aware that a website Artmix.studio, owned by Jacqueline Kenneally, was selling ‘Michel Keck’ art kits for $40 each on her website. These kits were created and being sold for profit without my permission.
We placed an order for this ‘Michel Keck dog art kit’ to see what was being shipped out to the buyer. The unauthorized ‘Michel Keck’ kit arrived and it was nothing more than a small cardboard box of tiny cups of cheap paint, small paper scraps, a thick card stock dog head silhouette, a tiny plastic cup of modge-podge (glue), other misc cheap art supplies, and six of my copyrighted dog images along with my trademark name – Michel Keck.
As an artist, and the creator of my works, I am the only individual that has permission to attach my name and images to any product. I would have never approved of the use of my images and trademark name in this manner. Ever. I would not want my artwork or name associated with the box of junk that was being sent out through the mail as a Michel Keck art kit.
Jacqueline Kenneally, owner of Artmix, did not inform the purchasers of these kits, or the visitors to her website where these kits were for sale, that the artist’s are the copyright and trademark owners of the artwork. Nor was any mention made that artist’s works are also protected by derivative works laws, which means that the copyright owner of the original work also owns the rights to derivative works. Therefore, the owner of the copyright to the original work may bring a copyright infringement lawsuit against someone who creates a derivative work without permission.
Notably, Jacqueline Kennelly was utilizing a copyright disclaimer on her own website: “© Artmix Creative Learning center. All Rights Reserved.”
A judge in Texas recently threw this case out stating it was ‘fair use’. Not one attorney, art teacher or artist I personally know agrees with this skewed ruling. To everyone I have personally spoken to regarding this case, 100% of them view this case as clear-cut case of copyright and trademark infringement, with the majority saying they wholeheartedly believe the infringement should also be considered willful.
I share several artist’s comments on this fair-use ruling in my full story of this case in my blog here. You can read my full article: Fair Use or Willful Copyright & Trademark Infringement at the link below if you are interested in reading or leaving your own comments.