THE TRADEMARK TROLL SAYS: SHEPARD FAIREY PUT DOWN THAT ROCK! YOU KNOW YOU LIVE IN A GLASS HOUSE
Earlier this week I heard Shepard Fairey interviewed by Terry Gross, the well-known host of the Fresh Air radio show. He briefly described his artistic rise and he more fully described the circumstances surrounding his clash with the AP(or perhaps one of its photographers). Anyone who has been paying attention to copyright law for the past few years is well aware of the word transformative.
Fairey was quite certain that his use of the Obama photograph to create his wildly popular Obama HOPE poster was indeed transformative. My overall impression of the guy was that, given his druthers, he would much rather allow anyone to do anything. But he had been dragged into this legal thing so now he was going to fight.
Imagine my surprise when my Google alert delivered me an article from the Pittsburgh City Paper. Someone, presumably with Fairey's knowledge, sent a cease and desist letter to a Pittsburgh native, Larkin Werner, apparently a rabid Steelers fan, who has produced a doll called the Steelerbaby doll.
So what you ask?
Well the physical Steelerbaby doll is derived from a virtual doll that appears at the site www.steelerbaby.com And if you visit that site you can tell the virtual Steelerbaby "Obey Steelerbaby"
When Werner started to sell real versions of his Steelerbaby some of them appeared with the doll standing between the words Obey and Steelerbaby.
So what you still ask?
Well Shepard Fairey, has apparently registered the word Obey for a line of clothing and related items. So, blinded by the fact that anyone would have the nerve to use the word Obey, and honoring the time honored tradition of aggressive brand owners, (especially big aggressive brand owners)
he or someone on his behalf, fired off the letter to Mr. Steelerbaby.
Is the Steelerbaby use trademark use? I doubt it. Do the goods described in Fairey's federal registration encompass a baby doll? Probably not.
Sure folks can waste time and resources finding out. But how much more interesting if Fairey would recognize the Steelerbaby doll and embrace its creativity. Perhaps even transform it into a new baby and include the word HOPE with it. In short, be an artist not a retailer.