Howdy yanik-ga,
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This National Law Journal article dated Monday, October 16, 2000 sums up
the legalities of what you are describing very well. This is in the context
of Andy Warhol's use of Campbell's soup cans in his artworks.
http://www.venable.com/docs/publication/1105.pdf
"Both the Campbell?s soup can and Coca-Cola bottle are undoubtedly protected
as famous trademarks; according to the court, however, Mr. Warhol?s use of
these brand names and images does not imply any connection, endorsement or
common origin between his paintings and the products depicted therein."
From the law decision described above, on the United States District Court,
Central District of California web site.
http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/0/ec63a358ea23f73a88256b48007a046d?OpenDocument
"Because Warhol does not use the trademarked names or product designs
to identify the source of the painting, his use does not imply
endorsement of
the artwork by either Campbell?s or Coca-Cola. Similarly, advertising for
Warhol?s artwork that uses Campbell?s and Coca-Cola?s images and names to
describe Warhol?s work does not imply endorsement."
These two message threads reiterate the above stance. Emphasis and comments
are as they are in the original posts.
http://palimpsest.stanford.edu/byform/mailing-lists/bookarts/2003/04/msg00224.html
"As Andy Warhol's ouvre famously demonstrates, the appropration of trademarks
into artwork does not implicate trademark law because (one assumes) the art
work is not being used to sell competing products. Put another way, the
Campbell's Soup painting did not violate trademark law because it was not on a
can of soup. This is of course a very simplified explanation, but it points
out a common misconception."
http://www.cni.org/Hforums/cni-copyright/1998-03/0557.html
"Remember that what Warhol was doing was copying trademarks (and trade dress),
NOT copying copyrighted works. While the test of copyright infringement is
substantial similarity, the test of trademark infringement is likelihood
of confusion.
...
They couldn't even have brought a dilution action, because Warhol's work was
not using their trademark 'in commerce' AS A trademark; he was using it as a
subject for art."
Keep in mind that none of the above will automatically protect you from a
lawsuit, as anyone can file them, as shown by this (you will need Acrobat
Reader for this one as well) Boston Globe article. This is a bit different
than your situation in that it involves photographs of commercial items,
but it is something to consider.
http://msl1.mit.edu/furdlog/docs/b_globe/2003-07-14_bglobe_illegal_art.pdf
"In 1999, Mattel Inc., the toy maker, filed a copyright-infringement lawsuit
against Utah based artist Tom Forsythe, seeking an injunction to stop him from
selling his photography series ...
...
After Mattel slapped him with a lawsuit, it took Forsythe five months of
searching for legal representation before the American Civil Liberties Union
of Southern California and the San Francisco law firm Howard Rice agreed to
defend him pro bono. They got the case dismissed in August 2001, but Mattel?s
appeal is pending."
The above case did get resolved. From the abcNEWS.com web site.
http://abcnews.go.com/sections/us/DailyNews/barbie010223.html
"In a decision announced Thursday, the 9th U.S. Circuit Court of Appeals denied
without comment a temporary injunction toymaker Mattel Inc. had sought to stop
Tom Forsythe from selling his Barbie photographs."
If you need any clarification, feel free to ask.
Search strategy:
Google search on: Warhol copyright OR trademark law Campbell
://www.google.com/search?q=Warhol+copyright+OR+trademark+law+Campbell
Looking Forward, denco-ga - Google Answers Researcher |
