Friday, October 23, 2009

Animal Mascots, Therapy, and Fair Use

Dear Rich: I am an artist studying the use of corporate mascots such as the Trix rabbit. One of the main points in my thesis is the lack of freedom in discussing the mascots  used to sell products to children (and the danger that poses). As part of my exploration of the topic I am creating artworks made out of these mascots, cutting up toys and making sculpture from the pieces. I am doing this for my Masters degree and may continue onto a Ph.D. I have some questions. Am I infringing copyright if I: (1) show the work at my degree show? (2) show the work in a commercial gallery? (3) publish images of the work in a commercial book (4) make drawings or paintings of the works and publish these commercially? or (5) were to claim they were produced in art therapy sessions would they count as informational? I understand that I would be allowed to reproduce these animal mascots for informational purposes, for example in a textbook or news article. (6) Does the exception only apply to reproductions of the mascots as they are? I noticed, for example, that someone had been prosecuted for putting Barbie and Ken dolls in lewd positions and photographing them. (7) Is there any way around this problem such as publishing in a country with no laws on copyright or publishing anonymously? I feel very passionately about this topic and would be willing to consider creating the artworks as anonymous graffiti if necessary. 
NIMBY Please. The Dear Rich Staff feels your passion but prefaces this response with one request - if you are going to take the graffiti route, could you please avoid tagging our street. (We live in the outer Richmond District in San Francisco, a few blocks from the Walgreens). We've got this law in the city that requires the residents to remove graffiti within 30 days and frankly we're tired of using toxic cleaning products and paint. 
You Have Questions. Your letter included seven questions and to avoid exceeding the short attention span of our loyal readership, we're going to try and keep our answers brief. As for questions 1 and 2, yes you are infringing, but you have a powerful fair use argument and are not likely to be discovered by anyone who might care. Re: question 3 and 4, yes, you are infringing and commercial uses make the fair use arguments a tougher sell. Still, the trend is to permit this type of use and we think you will likely qualify under a fair use defense (which by the way means you may have to defend yourself in court). 
You're in Art Therapy. As for question 5, you got us with this one. We understand art therapy and its implications and we're fascinated by the argument that copying someone's work is a transformative use (as required for a fair use defense). Alas, we believe that while you are being transformed by the therapy, the underlying work is not. On that basis (and with no caselaw to support our position), we don't think the art-therapy-as-fair-use argument will fly. 
Informational Uses and Trademarks. In question 6, you ask about informational uses. Here you're confusing copyrights and trademarks, a common error since mascots function as both. The "informational" issue relates to use as a trademark. All of your potential uses appear to be informational since you are using these images to make editorial statements. As for making Barbi and Ken do lewd things, that's a whole other issue we'll address in another blog. In any case, we understand that everyone can go through an I-hate-my-Barbie phase.  
The Land of No Copyright. As for question 7, we think you're imagining an off-shore world where you can infringe to your heart's content. The reality is that if your work is sold or distributed in the U.S., you can be sued for infringement here, as can any retailer offering your work. If you're a U.S. citizen that makes it even easier to go after you. So unless you're planning to move somewhere where the residents have set up servers with infringing or illegal content (often a country that ends with the suffix, "stan"), then you will be a target for lawsuits. 
Some Random Thoughts. In a surprising cross-species mascot switcheroo, we were surprised to learn that Trix was once promoted by stick figures and Mickey Mouse.