A few weeks ago, I started discussing the very interesting question of the use of resources in the classroom subject to protection under copyright and trademark law. I thought it was interesting because one of the common urban myths I hear all the time is that if the materials are being used to educate, then fair use applies. Thus, there is no way you can commit copyright or trademark infringement. Well, not exactly.
The question was raised from one of my longtime friends now art teacher. In an effort to help educate her children not only in the arts, she also wanted to know where the line is when it comes to copyright infringement. When does plagiarism rise to the level of legally actionable infringement?
For the first part of my post discussing all of the copyright issues, please read Copyright Law In the Classroom – Part 1. The copyright law issues is by far the largest consideration. However, even if you get past the copyright hurdle there still might be other areas of the law to consider. Let’s look at those.
What about Trademark law?
While fair use can cover most things as it is related to art class, one area of law that must also be considered is trademark law. Fair use lives in the Copyright Act. You cannot claim fair use when it deals with using a trademark because a different set of laws applies. Fair use is a defense to copyright law not trademark law. There are some loose theoretical times when an argument similar to fair use might apply to a trademark, but I cannot imagine a scenario where that would play out in a classroom setting.
When you hear trademark, I want you to think source – who made the item, what kind of quality can you expect and who you can sue if you get hurt. It’s not only the logo/brand but how the mark is used in commerce that gives it value. Examples like Coca-Cola, Disney and McDonald’s being some of the most worldwide recognized trademarks.
How I imagine this would play out in a classroom setting is if there was an assignment by the art teacher to create Andy Warhol type art. You know, the Campbell’s soup can paintings. Warhol absolutely used a trademark in his paintings and did commercially profit from the paintings. Although, Warhol never received complaints from Campbell’s, in fact he actually received letters of praise, the First Amendment artistic expression argument would probably trump. For an interesting look at a case of trademark usage within art that comes from Alabama, check out the 9 year struggle with the paintings of artist Daniel Moore and The University of Alabama. A nice write-up on this 9 year struggle can be found HERE.
In our example, let’s imagine a grade school child decided to do a similar type of painting, but used a Coca-Cola bottle. If the child was merely doing it as a school assignment with no intention of selling, then the use would definitely be okay. However, if the child created the piece in such a way as to make it seem like the product was from the Coca-Cola Company and the Coca-Cola Company was endorsing the action, then that could possibly be trademark infringement. An extreme example would be for a child to repackage Coca-Cola cans with new design packaging and then sell the drinks at school.
The real lesson is this. Using trademarks in a classroom setting might be okay. It might be okay using them in art. What we learned from the case with Daniel Moore and The University of Alabama is that litigation takes a long time. In Moore’s case, 9 years long. Nine years of court proceedings and paying experts and paying attorneys to prove that he was right. I’m not sure he or his family “won,” even though he technically did.
As it relates to trademarks please do not forget there are many things outside of a simple logo/brand that can be considered a trademark. Courts have even held that a “smell” can be a trademark! In the case of Coca-Cola, the bottle shape is subject to trademark protection. Trademarks are not always as straight forward as a logo.
Therefore, if a particular well-known artist has a certain style they are known for and it is their registered trademark, then copying that artistic style could open them up to trademark infringement. For example, let’s imagine an artist always includes a fluffy black shih-tzu dog in all of their paintings. The dog becomes associated with those paintings in commerce, thus successfully establishing a trademark. Others would be forbidden from including that element and would commit trademark infringement.
But, Wait – There’s More!
I would be remiss if I did not mention right of publicity as it relates to using celebrity or well-known images. Unlike copyright and trademark law, right of publicity is not federal law and varies from state to state. If you had actors or musicians, say like Elvis, in your artwork that you are then profiting off of in some way then that could also be a problem. For more detailed reading on right of publicity check out the posts Imagine Lennon Endorsing a Business and Hollywood Celebrities in Books.
Copyright law and fair use might be the starting point in having a conversation about the use of protected materials in the classroom, but it is not the end of the discussion. Society agrees we should borrow and learn from others, that means using intellectual property. I cannot disagree. I think our past creators have the ability and should influence our young people today. My thoughts to my teacher friends is to use others’ examples to teach, but take time to stop and ask, “Is this something the creator would expect to be paid for?” Or, “Have others paid for the privilege of associating that name or brand with their event?” If you answer affirmatively to either of those questions, then more caution would be necessary.
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