Let’s talk about love…LOVE Park that is! Old School Philadelphians might best remember LOVE Park as a celebrated destination for skateboarders who were drawn to the granite ledges and stairs. The park is officially named John F. Kennedy plaza, but is more commonly referred to as LOVE Park in honor of the iconic Love sculpture by Robert Indiana (American b. 1928) which typically stands at the park’s entrance. The sculpture was originally installed in the park in 1976. It was removed two years later, but because of its popularity was purchased by the Philadelphia Art Commission, and returned to the park. The sculpture is a well-known proposal spot, and a popular destination for out of towners.
In recent memory, the sculpture was temporarily removed from LOVE Park during a scheduled 16.5 million dollar renovation that began on February 15, 2016. Funny enough, in early November, the Office of Arts and Culture learned that for years, the sculpture had been painted the wrong color – the blue should actually be purple! The park has since had a soft opening to host the annual Christmas Village during the holiday season, and is scheduled to formally reopen in spring 2018 when the sculpture will be returned, reportedly with some purple accents this time.
In tandem with the reopening, Philly’s Parks and Recreation Department announced they would be selling commemorative granite blocks which were engraved with an imprint of the LOVE sculpture. The granite blocks came from the 150,000 lbs of salvaged stone that formerly made up the park’s ledges and stairs. A limited edition of 250 sculptures were made, and were to be sold for $50 each (with a limit of two per customer). The proceeds of the sale were to go towards continued construction and renovations of LOVE Park, as well as maintenance of other skate parks in Philadelphia. Locals, lovers, and skateboarders alike were excited about the prospect of purchasing the commemorative blocks, and were surprised when sales were postponed. It was reported that the artist had not been consulted about the project, and sales are halted while the rights issues are clarified. It is reported that an application for the rights have already been submitted, and it is hoped permission will be obtained before the close of the holiday season. Many expressed surprise because of the variety of necklaces, t-shirts, and other merchandise available for sale in the city of Philadelphia that feature the iconic sculpture. Many were confused about the artist’s ability to restrict the way reproductions of the sculpture are shared because the sculpture is usually installed in a public place. So what is the legal spin?
U.S. Copyright Law
Under current Copyright laws in the United States, copyright ownership of a work of art generally vests in the artist who created that work of art. Once the work is fixed (i.e. drawn on a piece of paper, painted on a canvas, or sculpted) the copyright belongs to the artist. There are no magic words the artist needs to say, and no paperwork the artist has to file to have a copyright interest in the work that he or she has created. Many artists choose to register their work with the U.S. Copyright Office because you get some benefits under the law if you do so (the opportunity to seek statutory damages for copyright infringement, and potentially the right to seek attorney’s fees). Filing a copyright application and/or obtaining a copyright registration is also a prerequisite to filing a copyright infringement lawsuit.
Now, copyright protection lasts for the life of the artist plus seventy years after the artist’s death. The owner of a copyright in a work of art has several exclusive rights to their work that they can sell all together, or license (grant permission to use) separately. These exclusive rights include the right to reproduce the work (make copies); the right to prepare derivative works based on the original work; the right to distribute copies of the work (this includes the right to sell copies of the work); and the right to display the work publically. Copies of a work of art, and a copyright are two different things. When you purchase a copy of the work, you only own the specific copy you bought. You have not purchased a copyright interest in and to the work unless you and the artist or the artist’s representative separately negotiated for those rights.
Also, just because a work of art appears in a publicly accessible space, does not mean that it is freely available for use without the artist’s permission. Unless you have permission, or an exception applies, it is potentially a violation of copyright law for you to make, share, and sell copies of a work of art that is subject to copyright protection. When copies of the artwork are being used in a commercial way – i.e. to promote a product or service, or the work is being featured on other merchandise, the artist has a greater incentive to try and stop the use, to seek payment for the use, or to seek additional legal recourse such as bringing a copyright infringement lawsuit, or sending a cease and desist letter. In the case of the Philadelphia LOVE Sculpture blocks, it seems that express permission for this project was not sought because it was assumed that general permission from the artist had already been obtained. Provided the work is still subject to copyright protection written permission from the artist should have been confirmed, and if not on file, obtained before creating and selling the commemorative blocks.
Trademark Law in the United States
To add another wrinkle, The Morgan Art Foundation, which is affiliated with the artist, holds two U.S. federal trademarks which are based on foreign trademark registrations. The U.S. marks registered in 2016, and are for the LOVE design, used in connection with a variety of goods and services including: statues and works of art, computer software, jewelry, printed matter (such as greeting cards), works of art of stone, concrete, and marble, clothing, marketing and promotional services, decorations for Christmas trees, art exhibitions, design services, and umbrellas, just to name a few. The Foundation also filed a new trademark application for animal housing and beds, as well as works of art made of china in August. Why is this significant? Under U.S. trademark law, protection attaches to words or symbols used to distinguish a good or service in commerce. Trademark law is designed to protect consumers against confusion. Depending on how negotiations progress, the Foundation may try and argue that the commemorative sculptures would confuse the public as to the origin of the product. Meaning, the public might mistakenly think the commemorative blocks where created by, or licensed by the Foundation because they are emblazoned with an image that looks similar to the LOVE design, for which the Foundation has federal trademark registrations for related goods. It is not yet known if such an argument is contemplated or would be successful on the merits, but trademark infringement carries its own separate set of penalties from copyright infringement, and has the potential to add some additional muscle to a potential legal action.
The moral of the story is that many misconceptions exist about copyright law in the United States. When in doubt, the safest course of action is often to ask permission rather than to seek forgiveness from an unhappy copyright holder or potentially, an unhappy trademark owner! In the interim, let us hope the parties feel the love, and come to a mutually acceptable resolution in time for the holidays.