Re: Pop Art Usage of Popular Icons

On 7/30/98, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Pat Sloane <patsloane[_at_]aol.com> wrote:
> >
> > ... 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.
>
> Moreover, they probably knew they wouldn't win. 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. Since no reasonable consumer would be likely to think
> that Warhol's painting came from the Campbell's company, or that Warhol
> was affiliated with or sponsored by Campbell's, the soup company would
> have lost a trademark infringement action at the very outset. 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. That's not a violation of trademark rights in
> anybody's book.

Also, even if Campbell Soup Co. claimed copyright in the label Warhol copied and sued for infringement, I think he'd probably have a pretty good fair use defense.

Daniel J. Schaeffer
<daniel_schaeffer[_at_]kirkland.com> Received on Thu Jul 30 1998 - 15:57:58 GMT