NEWSgrist - where spin is art

Found Art (Chelsea): Unmonumental 309

Found Art (Chelsea): Unmonumental 308

Fruit Loops: Kellogg’s Threatens Nonprofit Over Use of Toucan Image

  

via Non-Profit Quarterly:

Excruciatingly Dumb Idea Dept.: Kellogg Co. Threatens to Sue Mayan Group for Use of Toucan in Logo

August 23, 2011

August 22, 2011; Source: Detroit News | The Maya Archaeology Initiative (MAI), a cultural-defense project associated with the California-based World Free Press Institute, is being threatened with legal action by Kellogg Co. for using a toucan as part of its logo. Kellogg says that the image is too close to the Toucan Sam image used on its Froot Loops cereal boxes.

In a letter to MAI’s attorney, Kellogg also expressed concern that the initiative’s logo uses Mayan imagery, “given that our character is frequently depicted in that setting.” The fact that that setting is, of course, the home of actual people and a culture and the Toucan in question does not seem to be of any importance to Kellogg, which apparently believes that they have appropriated the bird for all eternity. 

In Kellogg’s defense, the law requires a trademark owner to vigorously police any possible infringement, lest it be deemed to have “abandoned” the mark. But lawyers more acquainted with the real world understand that there is a fine line between trademark policing and bullying. I’m not sure that there is much to be said here that might more clearly illuminate the appalling tone-deafness of the situation. One might wonder if there are no shared values between Kellogg Co. and the Kellogg Foundation, which is now devoting much of its grantmaking to anti-racism work.

As MAI’s Francisco Estrada Belli told the Detroit News, “This is a bit like the Washington Redskins claiming trademark infringement against the National Congress of American Indians.”

What say you, NPQ readers: Could these images be mistaken for one another?—Ruth McCambridge

 

More via Maya Archaeology Initiative:

Watch Kellogg's Froot Loops Adventure

Kellogg’s Threatens Nonprofit On Use of Toucan Image in Logo

21 August 2011

SAN FRANCISCO—Kellogg’s, the maker of Froot Loops and other sugary breakfast products, is taking legal action against the Maya Archaeology Initiative (MAI), a nonprofit that defends indigenous Maya culture, claiming that the use of a toucan in its logo infringes on Kellogg’s Toucan Sam character and games. The MAI logo can be viewed at http://mayaarchaeology.org

“This is a bit like the Washington Redskins claiming trademark infringement against the National Congress of American Indians,” said Dr. Francisco Estrada-Belli, president of the Maya Archaeology Initiative and a globally recognized expert on Maya archaeology and culture.

In a detailed response to the cereal giant, Maya Initiative legal counsel Sarah Mott explained that the toucan in MAI’s logo looks nothing like Kellogg’s cartoon character and said the two entities are not in competition. MAI's logo is based upon a realistic toucan native to Mesoamerica, while Kellogg’s Toucan Sam is a cartoon character with colors that represent Froot Loops’ food coloring.

Mott also challenged Kellogg’s claim that it uses “Mayan” imagery, another reason Kellogg challenged MAI’s logo, and accused the company of sending racist messages to children.

“There is nothing Mayan in [the Froot Loops] Adventure,” Mott wrote to Kellogg’s corporate counsel David Herdman.  “Disturbingly, the villain in this Kellogg’s Adventure—and the only character of color—is a ‘witch doctor’ who cackles malevolently when stealing from children. At best, this is culturally insensitive. I would characterize it as a demeaning caricature of an advanced and ancient civilization.”

“Kellogg’s products are a staple of many Guatemalan households,” said Estrada-Belli, a Guatemalan national whose organization promotes education opportunities for Maya children, archaeological work and defense of the rainforest. “We expect a brand that is so familiar to children to play a role in supporting cultural and racial understanding around the world, rather than undercutting it by promoting demeaning racial stereotypes.”
The company has a history of unsuccessful challenges to others’ use of toucans, claiming to hold a trademark on all images of the Central American bird.

The Maya Archaeology Initiative is a project of the California-based World Free Press Institute, a non-profit with a history of defending free expression and challenging repression of cultural heritage issues. The organization has conducted programs for the United Nations, the Ford Foundation and others.

Judge Slams Photographer for Meritless Copyright Suit

Examples from Gordon v. McGinley, with Gordon on the left and McGinley on the right

More examples from Gordon v. McGinley, with Gordon on the left and McGinley on the right

via Artnet:

DISMISSED! JUDGE TOSSES COPYRIGHT
LAWSUIT AGAINST RYAN MCGINLEY

by Rachel Corbett Aug 19, 2011

Did Ryan McGinley rip off fellow photographer Janine Gordon, as she claimed in a lawsuit filed last month? Maybe, a judge said yesterday, but that’s a question best left to the art critics. Did McGinley infringe on her copyright? Not at all, read the detailed decision from Judge Richard Sullivan of the U.S. District Court for the Southern District of New York. “The dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity” between the two artists’ works, he said.

In the decision, the judge analyzed a few of the 150 images Gordon, who also goes by the name Jah Jah, submitted as evidence of infringement. In one comparison, two photographs by McGinley and Gordon each featured a young man suspended in the sky with outstretched arms. The judge broke down the composition, pointing out that Gordon’s was in black and white, vertically oriented and featured a model in tennis shoes, while McGinley’s was full-color, horizontal and the model, who was barefoot, wore a different style of clothing.

The judge went further to argue that there was an “utter lack of similarity” between the photographs’ “total concept and overall feel.” Gordon’s model was “muscular and taut,” displaying a “gesture of virile triumph,” which set a mood distinct from McGinley’s slim, “dreamy” model who’s merely “surrendering to gravity.”

“I’m delighted that justice was served,” McGinley’s lawyer, Jack Gordon, told artnet Magazine. “The judge did a nice job formatting his decision; he embedded images, he didn’t just type something up in Courier font.” Nicole Hyland, attorney for co-defendant Chris Perez and Ratio 3 gallery, said in a statement that the decision was “a victory not only for artistic expression, but for the legal system as well.”

Janine Gordon declined to comment, and her attorneys did not immediately respond to requests for interviews.

Gordon was not without her supporters, however. One of her more prominent backers was former New Museum curator Dan Cameron, who wrote in an affidavit that “Ms. Gordon’s work is completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations.” Yet the judge said expert opinion was beside the point -- cases determining artistic similarity must be left to lay observers. “Despite the prestigious credentials of the artists and aficionados who have rallied to Plaintiff’s side, their testimony bears no relevance,” he wrote.

The judge noted that “not all copying results in copyright infringement,” and added that Janine Gordon’s “apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso.”

Attorneys for the defendants say they are considering motions to recoup legal fees, which McGinley’s lawyers estimate is collectively “well north of a $100,000.” Also at issue is whether to seek damages for alleged physical threats Gordon made to McGinley. McGinley’s lawyer said they are “seriously considering” it, but added that “sometimes you don’t want to stir things up.”

 

More via Techdirt:

Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'

from the nicely-done dept

By Mike Masnick Fri, Aug 19th 2011 5:30pm

A few weeks ago, we wrote about a ridiculous lawsuit from photographer Janine Gordon against fellow photographer Ryan McGinley. Gordon claimed copyright infringement, despite the photos not really being very similar at all. Here are a few examples [..]

Thankfully, a judge has wasted little time in getting rid of this lawsuit and making it clear that the whole thing was pretty stupid, noting that basic common sense says that this is not copyright infringement: 

In this case, the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley. Although the Court declines to conduct an exhaustive inventory of the 150 allegedly infringing images, a representative sample illustrates and confirms this result.

 

From there, the judge picks a few of the images, and notes just how different they are. For example, he compares these two images:

At left, Janine Gordon, Casey at Paramount, 2000, and at right, Ryan McGinley, Levi’s advertisement, 2010

According to Gordon, this was "the most blatant" of the infringing images. The court doesn't buy it. After noting that, indeed, both images show men suspended in front of a cloudy sky with a bent arm, it goes on to point out: 

But there the similarity ends. The Gordon Image is black and white and vertical, while the McGinley Image is in full color and horizontal. The Gordon figure is clothed in a short-sleeve T-shirt, dark pants, and tennis shoes; his hair is closely shorn. The McGinley figure is clothed in a longsleeve shirt and shorts and is barefoot; his hair is medium-length. Plaintiff attempts to obscure these “peripheral” differences by cropping and rotating the Gordon Image and converting the McGinley image to black and white. (Pl.’s Opp’n 18.) But not even these alterations can reconcile the “total concept and overall feel” of the two images. The Gordon figure is muscular and taut, with not one but both arms splayed in a gesture of virile triumph. The look on his face is intent, perhaps even defiant. The McGinley figure is slender and his posture relaxed, with both legs floating apart rather than clenched together. His head drapes to one shoulder and a dreamy look inhabits his face as he falls through the frame. Thus, the overall feel of the McGinley Image is that of a passive figure simply surrendering to gravity, while the overall feel of the Gordon Image derives from a dynamic figure jumping into the frame. No dissection of the images is required to discern the “utter lack of similarity” between the two.

Later, the judge notes that Gordon repeatedly "alters" images to try to make her infringement case stronger, and also notes that she has a "penchant for strained image descriptions." 

The judge also berates Gordon for relying on a battery of "experts" who even admit they don't know much about copyright law:  

Moreover, the substance of the expert affidavits simply underscores the infirmity of Plaintiff’s infringement claim. Several experts profess a belief that Plaintiff should prevail in this action while disavowing any familiarity with copyright law. (See Pl.’s Opp’n, Ex. B, Aff. of Dan Cameron, June 27, 2011, ¶ 4 (“I do not pretend to understand all the legal complexities of Ms. Gordon’s case”); id., Ex. F, Aff. of Volker Diehl, June 29, 2011, ¶ 9 (“I am unfamiliar with laws surrounding this issue, in particular the laws of the United States as it pertains to such causes of action”).) Another opines on the contours of “fine art ethics” (id., Ex. D, Aff. of Heather Holden, June 24, 2011, ¶ 12) and acknowledges that art expertise “may be needed” to discern the relationship between the images at issue (id., Ex. D., Holden Aff., ¶ 11). What is clear from the foregoing expert testimony is not that Plaintiff should prevail in this action, but that the remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court.

Finally, after repeating, once again, that "good eyes and common sense" say there's no infringement, the court also points out that "not all copying results in copyright infringement" and that:

Plaintiff's apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression.

Additionally, the court is somewhat shocked that an artist would make such claims, and finds it even more ridiculous that her lawyers agreed to go forward with it:

One might have hoped that Plaintiff - an artist - would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.

It's a nice clean ruling. It's just too bad the court had to waste time with it at all.

 

 

Found Art (Chelsea): Unmonumental 307

Found Art (Chelsea): Unmonumental 306

On the Matter of Rothko

 

via The New York Observer: ART

The Straight Story of the Matter of Rothko

By Michael H. Miller 8/12 11:20am

An article by David Levine in Triple Canopy offers an account of the Rothko trial in what is perhaps the most clear, concise and detailed overview yet written about the scandal. Mr. Levine, the son of Morton Levine, among the first directors of the Mark Rothko Foundation, writes “I’m going to break this down very simply, and as nonlibelously as possible.”

The Rothko scandal is ones of those messy webs of unfortunate decisions and backstabbing that seems more at home in a Raymond Chandler novel than in  reality. Shortly after Rothko’s suicide in February 1970, his estranged wife died unexpectedly of a heart attack. An inconsistency in Rothko’s wills split up his orphaned children. His 19-year-old daughter became the ward of Herbert Ferber. His seven-year-old son Christopher went Mr. Levine’s parents.

To make things more complicated, “Rothko died with his market value climbing and with 798 finished paintings in his studio,” Mr. Levine writes. According to Mr. Levine, a feud with his daughter—in which she announced she hated her father’s paintings—made Rothko decide to leave his work with his three friends, Bernard Reis, Theodore Stamos (a fellow painter), and Mr. Levine’s father. Within three months, the executors of his estate, and now the directors of the Rothko Foundation, sold the entire batch of Rothko paintings to Marlborough Fine Art for $12,000 a piece. Rothko’s prices at this time were often selling for four times that amount, sometimes even in the low six figures. Suspiciously, five weeks after Rothko’s death, Reis was named Marlborough’s director and Stamos joined the artist roster. Rothko’s children, under New York state law were entitled to half their father’s estate, despite his will. They filed suit on November 8, 1971. Marlborough had already sold 36 Rothko paintings at a profit of $2,474,250. Now things got even messier. The trial, Mr. Levine writes, hinged on a single question: “Was Mark Rothko an artistic genius?” A “parade of experts and luminaries,” including Arne Glimcher, Richard Feigen and Meyer Shapiro, all testified on behalf of Rothko’s place as a master painter. The court decided, after three years of testimony, that all Rothko canvases were valued at a minimum of $90,000.

Mr. Levine’s history is sharp and objective. It is hardly a defense of his father, who found himself unwittingly wrapped up in the affair (he resigned his directorship when Reis and Stamos decided to join suit against the artist’s children), nor does it cast Rothko as a hero who was posthumously manipulated by his friends.

Why are we all fighting so fiercely on behalf of bad fathers? Rothko was, by all accounts, a terrible parent, who alienated his teenage daughter to such an extent that she told him she hated his paintings. So he responded as any narcissistic, alcoholic, monomaniacal abstract expressionist would, and he left the paintings in the hands of his friends. Once he’s dead, she’s sorry, and she wants to take it all back. But by now the paintings are with others, who have their own interests and their own understanding of his priorities…Was my dad guilty? I think he was lazy; I think he was negligent.

It’s the stuff of great courtroom dramas. Read it all here.

++++

EXCERPT below, via Triple Canopy:

matter of rothko

By David Levine

Fighting for Great American Masters and bad fathers—the mess Mark Rothko’s death made.

I.

I’m going to break this down very simply, and as nonlibelously as possible.

On February 25, 1970, my mother received a call from Oliver Steindecker, Mark Rothko’s studio assistant, informing her that Rothko had committed suicide and was lying on the floor of his studio in a pool of blood. My mom took a cab from her house on East Eighty-Ninth to Rothko’s studio, twenty blocks south, and helped identify the body. She then took another cab uptown, to Rothko’s brownstone on East Ninety-Fifth, to tell Rothko’s estranged wife, Mell. She left a message with my father, who was, curiously, attending a funeral. Eventually he showed up as well, and helped to arrange Rothko’s funeral two days later. My mom was one month pregnant with me.

Five months later, Mell Rothko died unexpectedly of a heart attack, leaving their two children, Kate and Christopher, parentless. My mother was by now six months pregnant. Because of an inconsistency between the Rothkos’ wills, Kate, nineteen, became the ward of one Herbert Ferber, dentist-sculptor. Christopher, seven, became the ward of my parents. That arrangement ended badly. Christopher left my parents’ house the day before I was born.

II.

Last spring, I did a performance at the Museum of Modern Art. In the weeks prior, I was obsessed with the “Sixteen Americans” show MoMA mounted in 1959. That era was in the air: Mad Men, Fred Kaplan’s 1959: The Year Everything Changed, a play about Rothko on Broadway called Red, Todd Levin’s “I.G.Y.” (International Geophysical Year) show at Marianne Boesky; and there I was, doing a performance at MoMA, the beating heart of artistic ’59. I’d go to the museum library every day and look at that catalogue and wonder what happened to the other twelve Americans, the ones who weren’t named Johns, Stella, Nevelson, or Rauschenberg, the ones who must have thought, “OK, MoMA; I’ve got it made.” Also-rans and bystanders are my artistic stock-in-trade—abandoned headshots, forgotten spectators in performance-art photos, performers performing for no one, people whose bones have been bleached in the sun of others’ fame.

OK, MoMA; I’ve got it made. Afterward, an older museum volunteer came up to me among the well-wishers and said, “You don’t know me, but I’m your stepmother’s best friend. Your father would be very proud.” By the time that last sentence registered, she’d disappeared. I stifled the echo and turned to someone else.

III.

I barely remember my father. He died in 1981, eight years after my parents were divorced. He moved downtown, to a small one-bedroom in a high-rise on East Ninth Street. My mom stayed uptown in their brownstone. A concert pianist and poet, she always warned me not to end up a failure like him.

She still lives in that house. It’s like a New York School museum, full of posters and paintings and photos, as though time stopped in 1971. Prints and collages by Robert Motherwell, David Hare, Adja Yunkers, and Theodoros Stamos, and poster after poster by Rothko. Black-and-white photos of cocktail parties; that was their scene, those were the good times, when all the artists would get together and talk and drink every night, and Mom would visit Rothko’s studio every afternoon, and everyone lived in brownstones on the Upper East Side. There’s Mom hanging out with Rothko and Stamos in the living room; there’s Mom smoking a cigarette in Rothko’s studio; there’s Rothko sitting on the edge of his bed. I grew up in a house full of photos of Rothko, and not a single photo of my dad. He’s always out of the picture. He’s always the one taking the picture.

In the divorce, my mom wound up with all three of the paintings he’d given them, one of which had been a wedding gift. My dad wouldn’t pay child support, so she sold them to put me through school.

[Read on...]

 

The Light in Her Eyes: The Story of Huda al-Habash and Her Qur'an School for Girls

via Tikkun:

The Light in Her Eyes

by: Amanda Quraishi on August 7th, 2011

In 1982, a seemingly ordinary 17-year-old girl challenged both the violent secular Syrian government and the conservative Muslim elements in her society and founded a Qur’an school for girls in Damascus. Twenty-five years later, filmmakers Julia Meltzer and Laura Nix have traveled to Syria to make a documentary about Houda al-Habash and her school. “The Light in Her Eyes” is an unprecedented look into the rarely seen, independently defined world of Middle Eastern women.

Muslim women, particularly those from the Middle East, are rarely seen in western media as competent, educated and capable–yet Houda al-Habash is all this and more. As Laura Nix explained, “Huda is such a woman who is a very interesting mixture of conservative values and progressive values. Not only had I not seen images like mosques of Huda’s, but I think that as a woman leader she’s a really interesting character because she does not typify a lot of western versions of feminism.”

Julia Meltzer agreed, adding that her reason for making the film was to tell a story that is rarely told in the U.S. “I had never seen any images of women studying Qur’an in a mosque. It struck me that Huda’s school was really organized. She definitely had a mission and agenda, and things function in her space in a way that they don’t usually function in the outside world of Syria.” Laura Nix agrees, “Our media tends to focus on images which concentrate on violence and extremism and poverty in the muslim world and not people like Huda who represent the moderate majority.”

Huda is not teaching anything extreme but she still has to contend with the secular Assad regime. (Filming was completed shortly before the most recent uprising). Many times during the past decades she would arrive at her school and find it shut down by order of the regime. She’s also had to stand up to ultra-conservative voices within the religious community who feel threatened by women in leadership roles. But she teaches that women should prioritize their role as women and mothers first. She doesn’t challenge what women’s core responsibilities are and protects herself from most criticism from the male religious establishment.

The most compelling aspect of Huda’s story, however, may be the unique environment of social networking and community that her students develop during the course of their education. These women are creating a foundation of support that will continue to weave itself like a fabric throughout Syrian society and give women their own space for personal, professional and spiritual development.

Watch the Official Trailer for The Light in Her Eyes on You Tube

Visit the Official The Light in Her Eyes Website

Support the film on Kickstarter 

We Copy Like We Breathe: Cory Doctorow @ SIGGRAPH

Cory Doctorow @ SIGGRAPH

via BoingBoing:

...keynote address at the ACM SIGGRAPH conference in Vancouver, BC. The event's organizers were kind enough to record and release my video to their YouTube channel. My talk was about the way that copyright can be made to work for creators in the digital age, and why it's important for everyone that we don't get it wrong.

SIGGRAPH 2011 : Cory Doctorow's Keynote Address

 

More via Art, Revolution & Ownership Blog:

Copyright, Cory Doctorow and me

By Martha Rans on August 15, 2011 – 9:14am

Last week I was fortunate to find myself at SIGGRAPH and see Cory Doctorow’s keynote.  It was inspiring. To have him here in Vancouver as we make the final preparations for “Art, Revolution and Ownership” lit the fire under me to get writing again. Here are some excerpts of what he said:

Here in the digital age, we copy like we breathe, and so the stakes for getting the rules right on copyright have never been higher

So today, let’s get beyond “Copyright good/copyright bad” arguments and dig into the meatier questions:

“What do we want copyright to do, and which copyright will do that stuff?”

Let’s start with something everyone in this room should be able to agree with: copyright should serve as an incentive to creativity. A good copyright system results in more people making more creations. One of copyright’s most important goals is serving creators.

Cory (from my pov) demands that we differentiate the industry from creators and understand that what is being done under the guise of copyright does not serve creators. This should be obvious but for whatever reason the media often lump the industry together with artists suggesting that many creators agree with their views on drm when that is simply not the case. Many of  the unions, guilds and association have disagreed with the industry position on some aspects of Bill C-32. They are lost in the copyright/left debate which rages in the blogosphere to little constructive effect.  As I have said before, many creators feel shut out of the conversation because the system does not serve their interests.

Cory offers an eloquent and informed reminder on the need for us to develop better (more innovative?) ways to ensure remuneration for creators. “We need intermediaries who can provide the plumbing through which our works flow, because without them, we have to bear the costs of creation and distribution and most of us can’t do that.”  What I take that to mean is that WE have the obligation to work a little harder at answering the what do we want copyright to do question. 

[Read on...] 

 

More analysis via Rhizome:

We Copy Like We Breathe: Cory Doctorow's SIGGRAPH 2011 Keynote

When Cory Doctorow started his Keynote speech at this year's SIGGRAPH conference he started bravely by granting the audience "unequivocal permission to record video, audio, and to use those recordings ... in all media now known or yet to be invented throughout the known universe." This past Wednesday, two days after the speech, the Keynote was available on YouTube.

In the speech, Doctorow, co-editor of Boing Boing, outlined copyright and digital rights management's current state of affairs by providing details and examples that took the conversation far beyond the typically polarized copyright debate that divides the analysis into two mutually exclusive parts - either bad or good. 

[Read on...]

Found Art (West Village): Unmonumental 305