Coexist

[OffAxis]

Hi stevec,
I work in the art business and I've seen this type of situation before on many occasions and as a general rule artists have the right of refusal since they own the copyrights to any work they produce. True that U2 is using the image with the best of intentions but it can be argued, I think, that their intentions and the music that expresses them, as well as the tour, generates a lot of revenue. What follows is obvious; it can be construed that U2 is using copyrighted material in order to enhance an already lucrative tour production.

For a good understanding of copyright laws, here is an example from the US gov't; http://www.copyright.gov/help/faq/faq-protect.html#what_protect

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."


WHAT WORKS ARE PROTECTED?
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

literary works;
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works


Now for the "Fair Use Limitation"

§ 107. Limitations on exclusive rights: Fair use38
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.



My reponses:

In terms of 1) we have determined it could work against U2 since this is part of a "for profit" and actually highly lucrative tour.

2) If the image used is a work of art and it can be attributed to this artist, then it is protected by copyright laws. This also works against U2.

3) Subject to the truth of 2, if U2 has used a key element or substancial portion of the work by this artist it will also work against U2.

4) This could have clearly work in U2's favour as it gives the work gret exposure. Where U2 will run into difficulty is they have not attributed the work to the artist so whereas the image is getting exposure, the artist who should be benefitting is not. It doesn't do much good for artist X if I promote his/her work without an attribution.


Even if number 4 were to be judged in U2's favour I will tell you that from my experience it is the least important factor. The artists permission is the most important.

I do agree with you that a law suit is unecessary, though. It's likely just a mistake and it sound like the artist is a good spirited one. I think an apology would probably be sufficient, although if U2 is going to continue using the image they will have to get permission. As you said, though, even benign issues can cause a stir. Let's hope not.

regards,
Jon

Since U2 is an Irish band composed of Irish and English (maybe) citizens and the artist is Polish, do US copyright laws really apply here?

 

[fightin irish]

Since U2 is an Irish band composed of Irish and English (maybe) citizens and the artist is Polish, do US copyright laws really apply here?

I believe the short answer is yes. Due to the Berne Convention, these are not just US laws, and most intellectual property rights to artisitic expression transcend national borders.

 

[prof_peabody]

I was under the impression that you can't TM a word or phrase for everything; that is, a TM only applies to products you sell or distribute. In the Stealth case, the guys that TM'd Stealth could only enforce their TM in markets which they produce something (shirts mostly). The Stealth guys could not enforce it on baseball bats and other products because they had no presence in those market places. So the US Coexist guys may be able to guard their TM for shirts and clothing, unless the museum already sold coexist products...

 

[fightin irish]

I was under the impression that you can't TM a word or phrase for everything; that is, a TM only applies to products you sell or distribute. In the Stealth case, the guys that TM'd Stealth could only enforce their TM in markets which they produce something (shirts mostly). The Stealth guys could not enforce it on baseball bats and other products because they had no presence in those market places. So the US Coexist guys may be able to guard their TM for shirts and clothing, unless the museum already sold coexist products...

Trademarks and Copyrights are both at issue here:

Trademarks are primarily geared toward the consumer - to identify a product or service with a provider, and yes, it only applies to certain market areas.

So you could might get away with opening a "Nike" computer repair shop, but not a "Nike" running shoes shop. It depends on if the courts would think a consumer would be confused as to whether the computer repair shop was affiliated with the original Nike.

But here's the key: Museum on the Seam is already selling T-shirts. So they are in the same market, and believe me, there IS confusion about this.


Copyright, however is totally different - it protects the artist and his expression of an idea, and gives him ownership of how that expression is used. (with exception: see "fair use"). Copyright is not limited to a specific marketplace. So I couldn't use a U2 song in my commercial without permission -- regardless of what the commercial was for, or whether or not the consumer would be confused about U2's affiliation with my business - I just can't do it without their permission.

 

[Doppelgang]

Man!, I just have a problem with the fact that this whole thread is still going...If the artist feels that he is getting ripped off or unfullfilled or whatever then he should approach the band and deal with it.

We all...I include myself...really don't have a clue about the actual set of circumstances here, but I don't care for the implication that Bono is a theif or at the very least noncaring about another artist's creation. Again no one knows his heart except him and our maker.

Anyway there is a lot of interesting info regarding copyright law.

 

[Klink]

Trademarks and Copyrights are both at issue here:

Trademarks are primarily geared toward the consumer - to identify a product or service with a provider, and yes, it only applies to certain market areas.

So you could might get away with opening a "Nike" computer repair shop, but not a "Nike" running shoes shop. It depends on if the courts would think a consumer would be confused as to whether the computer repair shop was affiliated with the original Nike.

But here's the key: Museum on the Seam is already selling T-shirts. So they are in the same market, and believe me, there IS confusion about this.


Copyright, however is totally different - it protects the artist and his expression of an idea, and gives him ownership of how that expression is used. (with exception: see "fair use"). Copyright is not limited to a specific marketplace. So I couldn't use a U2 song in my commercial without permission -- regardless of what the commercial was for, or whether or not the consumer would be confused about U2's affiliation with my business - I just can't do it without their permission.

Personally, I don't see how this is a trademark issue yet since these artists (U2 and this visual artist) are not competitors. Although visual reproductions, the t-shirts are in my opinion, not for the same market place so it would be difficult to argue that they are competitors either. One is an original or semi-original work to be displayed (i think??), and the other is to be worn and is mass produced. Of course this can be debated. Even if it were a TM debate, for me it's not yet problematic since for all we know the artist may have granted the t-shirt co. permission. Apparently U2 was not given permission.

Fightin Irish makes a good point with the Berne Convention. Here is how I see the argument:


I) The artist is Polish.

II) Poland is a member of the EU as of 2004.

III) The EU recognizes, enforces and in some cases even surpasses the requirements of the Berne Convention and it's copyright statutes. The US and Canada are also members of the Union of the Berne Convention.

IV) The copyright articles of the Bern convention protect a Polish artist's right of reproduction in the places where U2 has toured. See article's 3 and 9 of the Berne Convention:


------------------------------------------------------
Article 3
(1) The protection of this Convention shall apply to:

(a) authors who are nationals of one of the countries of the Union, for their works, whether published or not;
(b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union.
(2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country...


Article 9
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention. "

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IV-B) Thus a Polish artist's rights are protected by the Articles of the Berne Convention in the EU, Canada and USA.

V) U2 has toured and used this image in the EU, USA and Canada.

VI) Therefore (if the accusation is true), U2 is in violation of international copyright Articles as laid out in the Berne Convention.



Regards,
Jon

 

[fightin irish]

If the artist feels that he is getting ripped off or unfullfilled or whatever then he should approach the band and deal with it.

He has approached the band and feels as though he's been blown off, but there's more to it than that.

We all...I include myself...really don't have a clue about the actual set of circumstances here,

I'm not saying this to be a jerk or anything, but, after 3 weeks of researching this, yes I do. I've spoken to Piotr, Coexist, and Museum on the Seam multiple times. (Re-insert shameless plug for my "Can't We All Just CoeXisT?" article over at @U2)

but I don't care for the implication that Bono is a theif or at the very least noncaring about another artist's creation. Again no one knows his heart except him and our maker.

No one is accusing U2 of stealing (except maybe in this forum). But the copyright holder has tried to contact the band, and they still have yet to ask his permission to use his art. It's not malicious on the part of U2, but there is a certain lack of respect, IMO. My guess is if this were a world-famous artist, they might find the time to meet and ask permission.

Not to mention the fact that U2 has taken the time to meet with the US company that has the trademark. One difference between the two is that is US company is suing others for using the sign.

But for the record, I do think that U2 will eventually properly work this all out in manner that everyone will be satisfied with. We may hear something shortly, in fact.

 

[fightin irish]

Personally, I don't see how this is a trademark issue yet since these artists (U2 and this visual artist) are not competitors.

You're right - when it comes to U2 and Mlodozeniec, it's a copyright issue.

However, Coexistonline, the US company, has a trademark on it. Mlodozeniec believes that their trademark should be revoked because you can't trademark a copyrighted image without permission, which is what they did, according to Mlodozeniec.

Although visual reproductions, the t-shirts are in my opinion, not for the same market place so it would be difficult to argue that they are competitors either. One is an original or semi-original work to be displayed (i think??), and the other is to be worn and is mass produced. Of course this can be debated.

There is most certainly confusion in the marketplace. Joe Schmo goes to a U2 show and the next day he decides he wants to buy a CoeXisT shirt. He hops on the web and comes up with coexist t-shirts available from both the US company and the Museum on the Seam exhibiting Mlodozeniec's work. Which does he buy? (Both are manufactured, as well.)

Even if it were a TM debate, for me it's not yet problematic since for all we know the artist may have granted the t-shirt co. permission.

Nope, he suurrre didn't. He was a little upset with them...
I understand the two are in negotiations now, we'll see what comes of that.

 

[ramblin rose]

More intriguing to me is the case between the Polish artist and the guys from the midwest.

 

[prof_peabody]

Here is a link to buy the shirt from the museum:

http://www.coexistence.art.museum/eng/shop/t_shirts.htm

 

[two shots]

Whatever the argument is - well, the best thing is to shed a little light on this great museum. I have actually been there and the house still has some bullet holes in it. If any of you guys happens to travel to Jerusalem, check this place out, it is very inspiring. Or take the virtual tour of the Museum on the Seam - its worth it.

 

[fightin irish]

More intriguing to me is the case between the Polish artist and the guys from the midwest.

Yes, that is indeed where the tension is. Nobody is directly taking on U2 because both parties like what U2 is doing, and it's great publicity. But Mlodozeniec and Coexistonline are really at odds with each other.

Although, like I said, their lawyers are talking...

 

[whitehead]

Just curious....anything more come of this?