Re: Pop Art Usage of Popular Icons

Douglas M. Lipstone <dlip[_at_]worldnet.att.net> wrote:
>
> We have a client that is interested in painting, in his distinctive,
> pop-art style, certain recognizable food items (for example, a piece of
> candy), some bearing word marks, and others without. Once painted, the
> items will still be recognizable. Can anybody point me to a treatise
> that would discuss the issues arising from such usage (for example,
> copyright (and fair use), trade dress, dilution, etc.)? My brief look
> at Nimmer was not fruitful.
> Douglas M. Lipstone, Esq.
 

1. Earl Loran wrote a book on Cezanne. He included black and white ink diagrams he had drawn himself that were intended to make points about Cezanne's composition. One of the Pop artists--either Jim Rosenquist or Roy Lichtenstein--enlarged the diagrams and made them into paintings. I believe Loran sued and lost.
2. Insofar as artists have a litigation arm, this would be either Artists Equity or New York Artists Equity (two separate organizations). In the past, both have won important court cases for artists on such questions as who qualifies as an artist in the eyes of the IRS, what the responsibilities of galleries are to borrowed work, etc. I think both now focus more on introducing legislation. But either might be able to put you in touch with attorneys or artists who've dealt with this problem.
3. What your client wants to do has been done so much that I think we'd have heard more about it if it were problemmatic. Campbells Soup and Brillo, so far as I know, never sued Andy Warhol. Maybe they thought the benefits of the publicity they were getting outweighed any infringement issues.

In the grocery store, if a cover for a Kleenex box has the name "Kleenex" imprinted on it, I doubt that the company sues.

If an artist paints a still-life with a Pepsi Cola bottle in it, is this copying the original or copying a copy? If Ralph Lauren sells t-shirts with his name printed on them, is it an infringment to photograph or paint persons wearing those t-shirts?

People think of the infringement question in relationship to Pop art, where the copies were unusually close. But if it's an infringement to make a painting of a Kleenex box, it shouldn't matter if the artist's technique is very exact (as in Pop art) or very loose (as in Impressionism). Also, what about a photographer hired by a department store to make photos of brand name products for the store's catalog? I doubt the photographer or the store would feel a need to contact each manufacturer for written permission to print photos of their products. If a manufacturer objected to being in the catalogue, it would probably be pursued on that basis, not on the issue that it might be infringement to publish a photo of a brand-name product.

Pat Sloane
<patsloane[_at_]aol.com> Received on Tue Jul 28 1998 - 15:15:34 GMT