They say that imitation is the greatest form of flattery.

But that adage seems to go by the wayside in most copyright disputes.  In this case, the Associated Press seems anything but flattered by Shepard Fairey‘s iconic Obama poster.

And when the AP goes up against a well-known pop artist with a history of copyright infringment claims in the name of Intellectual Property, it’s like the Superbowl for the copyright enthusiast (or the Puppy Bowl, if you’re buzzcowboy).

From what we can gather, Mr. Fairey used an AP photo that he took from Google images to created his iconic Obama poster.  His derivative work was plastered on Obama t-shirts and posters during Obama’s political campaign, and derivatives of that were seen on everything from leather jackets to the occasional garage door.

The AP claims that Shepard Fairey’s use of the photo as the basis of his work is copyright infringement.  Mr. Fairey and his attorney argue that his use of the photo is protected under the fair use doctrine.  Even though the photographer who took the original photo does not appear to have a problem with Mr. Fairey’s use, the Associated Press is the owner of the copyright in the photo.  Often when we create things (like this blog post) on our employers’ clock, they own the copyright in the work.

Ironically, while Fairey is touting “fair use” one moment, another artist says he’s claiming copyright infringement the next.  Baxter Orr claims to have received a Cease and Desist letter for his own Obama poster.  Baxter claims he “wanted to parody the guy who parodies everything. He’s based his career off this. If he gets mad at this, he’s become just like Tide detergent or Coca-Cola.”

If indeed Orr’s claims are true (a copy of the C&D has yet to be made public), it looks like what’s good for the goose is not so great for the gander.

Although we’d love to hear the legal arguments and see whose side a judge or jury would pick, something tells us that these disputes will be resolved informally as opposed to through the courts.  Nonetheless, both disputes raise great fair use issues.

The legal issues behind copyright infringement may be on the back burner for Shepard Fairey anyway.  His humble beginnings as a street artist apparently haven’t gone by the wayside, as Fairey was recently arrested for tagging.  He was arrested en route to his first solo show, “Supply and Demand.”

Fairey has entered a not guilty plea, and this is where we come full circle and wonder whether he might actually regret his many attempts to keep complete control of his imagery.  Because without witnesses, who’s to say that the public graffitti wasn’t done by a fan of his work?

So will Fairey use the “imitation is the sincerest form of flattery” defense, submitting a mountain of C&D‘s to prove his case?  We’ll see.

“Horizontal stripes are for prison,” said “Tim Gunn’s Guide to Style” star Tim Gunn.  And while the sports apparel company Adidas can’t make its competitors join the chain gang, it has started a few court battles with giant retailers such as Target and Wal-Mart over their potential infringement of Adidas’ “Three Stripe Mark” on a variety of sneakers.  Adidas is jazzed over its recent $64.4 million trademark infringement award (down from $300 million plus jury verdict) against Payless ShoeSource for infringing Adidas’ trademark and is looking at other retailers of discount brand striped-shoes.

The Payless dispute concerned approximately 290 Payless shoe designs that included either two or four parallel stripes in the same spots where Adidas places its trademarked stripes (you can see all of the designs the jury thought infringed here).  The jury agreed with Adidas’ reasoning that Payless infringed on its three stripe trademark because there was a likelihood that consumers would be confused by the parallel lines and mistakenly believe that Adidas was the source of those shoes.  It probably didn’t help that Payless “designed” the shoes by purchasing various Adidas shoes, sending them to its manufacturers in China, and directing them to remake the shoes with either two or four stripes.

Adidas has been more aggressive than a Black Friday shopper while litigating trademark infringement cases over the past few years, and although it is the second largest sporting goods retailer behind Nike it’s taking a stand as the number one shoe diva of the shoe industry.

In the present litigation with Target, Adidas is taking the company to task over its multiple-stripe designs. According to the complaint there have been three prior settlement agreements between Adidas and Target – all regarding past allegations that various shoes and apparel offered by Target have infringed Adidas’ trademarks.  Who knew stripes could be so controversial?

Whatever the case, people clearly like stripes, all sorts of stripes: squiggly stripes, parallel stripes and even spinning stripes.  Maybe Target will settle out of court again and join the company of Steve Madden Ltd., Polo Ralph Lauren Corp., Target Corp., Nordstrom Inc. Wal-Mart, and Kmart.

Adidas may not get beyond four stripes since K-Swiss has been legally using a five-stripe design on its shoes since 1966.  Will a shoe with four stripes confuse the consumer as to Adidas’ three stripes or K-Swiss’ five stripes?  Either way, Tim Gunn reminds us to keep those stripes below the waist.

Some of you may have seen some of the media coverage (maybe here, here, or here) regarding the Republican National Committee’s recent complaints about our shopkeepers’ use of the terms “GOP,” “Grand Old Party,” “Republican National Committee,” “RNC,” and various elephant designs.

To sum it up: back in February, the RNC demanded that CafePress “cease and desist from allowing vendors to utilize the federally registered trademarks of the RNC” and threatened legal action. While we’re open to working with trademark holders, something about forbidding our shopkeepers from using popular political symbols in the height of an exciting election season just didn’t seem right.

We figured that there’s got to be something in our Constitution that would guarantee our shopkeepers the right to speak openly about political issues…

The RNC wanted us to remove designs that were both supportive of Republicans and critical of Republicans. We wondered why they would ever object to our shopkeeper’s adorable design that featured a mommy elephant leading her tiny kid elephants, accompanied by the phrase “I’m raising my children RIGHT.” We did, however, understand why the RNC objected to the design at left…

(Last week, for probably the first time in CafePress history, the term “glory hole” was discussed in the CP Legal Department, thanks to a blog commenter.)

After this story hit the press, the RNC agreed to retract its threats of trademark litigation on the following terms:

• CafePress will not remove any of the content the RNC complained about.
• CafePress will send a notice to the shopkeepers whose content was listed in the RNC’s original complaint and whose designs consist solely of the precise trademarked elephant (displayed at right), the acronym GOP, or the trademarked elephant or acronym GOP with a border.
• The notice will inform these shopkeepers about the RNC’s licensing procedure, and those particular shopkeepers will be required to use the RNC’s licensing process within a reasonable period of time.
• CafePress will monitor our shopkeepers’ progress through the RNC’s licensing system, and CafePress reserves all of its rights in the event that our shopkeepers have problems obtaining licenses to use the RNC’s trademarks.

While we feel that the RNC’s registered trademarks are a vital part of the political discourse in this country, this compromise seemed reasonable. The vast majority of our shopkeepers’ designs are super expressive and consist of much more than just the trademarked elephant or the acronym GOP. We’ve got pink elephants, tattooed elephants, and an elephant that appears to have a real problem digesting donkeys.

We’re all happy that we were able to reach a friendly compromise with the RNC, but the intellectual property geeks in the CafePress Legal Department are somewhat disappointed that we did not have an opportunity to litigate the legal issues surrounding this dispute.

The RNC’s complaint raises interesting issues about the interaction between the First Amendment and trademark law. Now more than ever, folks are using T-shirts, bumper stickers, and buttons to express their political opinions. In Mattel v. MCA, the 9^th Circuit held that certain trademarks can become such an important part of our culture and language that the First Amendment is implicated when a trademark holder attempts to quash expressive uses of the trademark. The court emphasized that “some trademarks enter our public discourse and become an integral part of our vocabulary . . . Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law.” Mattel v. MCA, 296 F.3d 894, 900 (9th Cir. 2002).

We certainly believe that the RNC’s registered trademarks “assume a role outside the bounds of trademark law” because they are a vital part of this country’s political discourse. I mean, is there really any better way to express disdain for the Republican Party and Republicanism than this design?

So for now, the elephant is no longer in immediate danger of extinction on CafePress. And that is indeed cause for a grand ol’ party.

Thanks to all of our wonderfully creative and expressive shopkeepers, the bloggers, and tweet-happy elephant fans.

Also, a HUGE thank you to Paul Alan Levy, I am sure we would not have had such a quick and successful outcome without his superb representation and advocacy and the support of Public Citizen.

Whether proud Republican, or evolved Democrat, I think that anyone can agree that the RNC did the right thing.

Live long and prosper, elephant artists.

-by IPFreely (posted by admin due to IP Freely’s hectic schedule of fighting evil and otherwise making the world a better place)

CafePress and LFP recently settled a lawsuit over User-Generated Content.

LFP, the owner of the HUSTLER trademarks, and CafePress, the leader in user-generated commerce announced the amicable resolution of a lawsuit filed in Los Angeles Federal Court. LFP alleged that the use of the word “hustler” and other similar words and phrases in images created by users of the CafePress service infringed upon LFP’s trademarks.

In the interest of building a positive relationship with LFP that can benefit its users, CafePress has agreed to remove certain user-generated content from its website. This resolution is a great example of a large rights holder and an internet service provider reaching a non-monetary compromise that balances the rights of a trademark holder with the fair use rights of the users.

LFP filed the lawsuit last year after discovering that users of the CafePress service had created and uploaded images utilizing the word “hustler,” which could have been printed on various types of products, without authorization from LFP. The CafePress platform enables users to upload user-generated content. Users can monetize that content by customizing products, such as T-shirts, stickers, pillows, posters and more, with their content and offer their products for sale.

Moving forward, LFP and CafePress intend to work together to avoid litigating disputes arising from user-generated content and instead work together to find reasonable approaches to addressing arguably objectionable content. This in turn allows for a positive educational process for creators of user generated content while maintaining protection for permissible fair and non-trademark uses.

It sounds like a bad joke, but it’s not. Or maybe it is; you be the judge.

Paris Hilton has come to be an icon of fame for the sake of it (move over, George Hamilton). While people may not be quite sure why she’s a celebrity, we do know that she’s known for being rich and famous.

Celebrities like Paris use accessories to provide branded testimony of their affluence and social status. Whether it’s pint-sized pooches or Louis Vuitton bags, what’s in and on the arms of celebutantes like Paris turns heads and elevates brands.

With her artwork, Danish artist Nadia Plesner poses this question: If Paris Hilton can attract so much media attention for toting status symbols such as expensive designer bags and little dogs, will the same tactics work for the suffering people of Darfur?

Is Nadia criticizing the tendency of the media to focus exclusively on the rich and famous rather than world issues? Is she using a tried and true method for gaining publicity for a cause she supports? Either way, Louis Vuitton is not happy about it.

Plesner claims the design is commentary on the media’s obsession with the rich and famous, and that its purpose is to bring attention to the ongoing genocide in Darfur. Although the profits from sales go to the charity Divest for Darfur, Louis Vuitton came out with guns blazing and sued the artist over a t-shirt.

It will be interesting to see what the court does. After all, art is controversial. (Well, not always...) We at CafePress are fully aware of the constant tension between artists (e.g., CP shopkeepers) and big name rights holders (e.g., Wal-Mart). Finding the proper balance between creative expression and intellectual property rights is never easy.

You can read more about the case here.

And if you want to help the fundraising efforts of the Save Darfur Coalition, you can visit the Save Darfur shop.

It’s no secret that T-Shirts are a perfect canvas for political commentary. Bumper sticker
activism isn’t just a Berkeley thing anymore; more and more of you are rewarding your inner activist by choosing to express yourselves from bumper to bumper and beyond.

I’ve called this phenomenon “Getting it off your mind and onto your chest”; Americablog writer John Aravosis coined the phrase “T-Shirt blogging” a few years back while I was on the phone with him (thanks John). And this week, a federal judge in Georgia called it “protected speech” in an important ruling that ensures your First Amendment right to express yourself via the almighty T-Shirt.

Some of you may not want to wear this T-shirt. Some of you may disagree with its message, and even more of you mind find it distasteful. But anyone not on Wal-Mart’s legal team can most likely agree that this design isn’t going to be confused with the Wal-Mart logo.

If Wal-Mart was truly concerned about negative brand impact, to bring this particular design and the rationale behind it into the public eye via a lawsuit is a curious move. The design is now not only out there being discussed in various articles and blogs, but now also stands defiantly and symbolically as testament to the American everyman’s right to self-expression – even if that self-expression offends a corporate monolith.

Here’s the other thing: suing someone because you don’t like what they’re saying isn’t likely to turn the conversation in your favor. Malcolm Gladwell covers this in “The Tipping Point,” using McDonald’s disdain for the term “McJob” as the example. As an interesting sidenote, someone at McDonald’s seems to have read this book; the company has recently begun a movement to change the meaning of the terminology based on action the corporation has taken.

Certainly, a company highlighting its efforts to improve opportunities for its workforce is more likely to contribute positively to the public discourse of its practices and brand than suing a little guy for saying something that annoyed some executives, particularly in an age where information travels at the speed of unlimited and unfettered fingers flying over a keyboard.

(Irony of the day: Wal-Mart actually sells “The Tipping Point.” May someone in Marketing make good use of the employee discount…)

So, the moral of the story: actions speak louder than lawsuits when it comes to influencing public perception, particularly when you’re going to take on the basic American right and habit of speaking one’s mind.

My advice? If you don’t like what someone’s saying, make your own T-Shirt and start a new conversation.

As reported in the The L.A. Times, American Apparel has been slapped with a 10M lawsuit by Woody Allen for
allegedly using an image of him (dressed as a rabbi) without permission in advertisements.

The L.A. Times published the story on April 1^st, no doubt leaving its readers to wonder whether this was an April Fool’s Day joke or not.

Gawker, for its part, seems to have procured a photo of said advertisement. Hmm.

What Woody Allen dressed as a rabbi expresses to potential American Apparel consumers is a mystery that I’ve yet to unravel. Thoughts?

Note: The fact that I’m posting this most assuredly does not mean that you should go out and make Woody Allen-related merchandise. In fact, I’d personally advise the opposite. You don’t want him to Sue-Yee too.