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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