Panel Rules JackAbramoff.com Domain Name May Stay with Democrats

Screenshot of JackAbramoff.com

A three member Uniform Domain Name Dispute Resolution ("UDRP") panel refused to transfer the domain name JackAbramoff.com to Jack Abramoff after he filed a complaint.

Abramoff was involved in a corruption scandal that led to his conviction and to 21 persons either pleading guilty or being found guilty, including former White House officials J. Steven Griles and David Safavian, Representative Bob Ney, and nine other lobbyists and Congressional aides.

The domain name is currently registered by the Democratic Congressional Campaign Committee (DCCC) who has been using it for less than flattering purposes.

The panel found that Abramoff did not prove by a preponderance of relevant, credible, admissible evidence that the domain name is identical or confusingly similar to a trademark in which he has trademark rights.

Further, the Panel found that Abramoff “has not met his burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s domain name has been registered and is being used in bad faith.”

Part of Abramoff's legal problem was that, aside from it being his name, the Panel found that he provided "no evidence of actual use of JACK ABRAMOFF as a trademark in connection with particular goods or services prior to the time 

Respondent registered the disputed domain name."

The Panel noted that “[o]ne cannot claim or enforce trademark rights in a mark that it has not used, and one cannot secure a U.S. Federal Trademark Registration absent “use in commerce.”

The Panel also found that the Respondent has rights or legitimate interests in the domain name because it has made a legitimate noncommercial or fair use pursuant to the Policy.

The Panel further noted that the use being made on the domain name is classic political speech, protected by the First Amendment, and, for trademark purposes constitutes nominative fair use.

Further, Abramoff had claimed to be “famous,” but the Panel found that the record reflects he is, in fact, “infamous."

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules

A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.


The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"

The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.

The Chick-fil-A Gay Marriage Controversy: When Brands and Politics Collide

The Cathy Family / Chick-fil-A Website

Privately-owned, Georgia-based fast food chain Chick-fil-A is apparently not afraid of courting controversy.  

Company President Dan Cathy recently gave an interview to the Baptist Press in which he said he was "guilty as charged" in support of what he called the biblical definition of a family.  

This was not a slip of the tongue.  Indeed, on the Chick-fil-A corporate website, Mr. Cathy's biography confirms that his "personal passion" is "to glorify God by being a faithful steward of all that is entrusted to us."

As evidenced by these statements, Chick-fil-A represents a "red brand," that is, a mainstream consumer brand that appeals to some purchasers by openly espousing principles that tend to fall on the conservative/Republican end of the political spectrum.

According to a recent survey, which confirmed previous findings published by AdAge in 2010, political viewpoints strongly affect consumer loyalty and perceptions.  And there are plenty of brands to go around, regardless of your particular political viewpoint.

Studies consistently show that "Blue brands," or those top companies favored by liberals/Democrats include Google, Sony, Johnson & Johnson, JetBlue and Ben & Jerry's.

Ben & Jerry's "Occupy Wall Street" Banner / Ben & Jerry's Website

Most of the time, these brands' outward expression of philosophical principles that overlap with political views still allow them to prosper by maintaining a strong customer base by remaining loyal to those principles without significantly alienating those who share a different viewpoint.  The simple reality is that Ben & Jerry's viewpoints, no matter how controversial, simply haven't negatively affected overall sales of their popular flavors.

But sometimes, mixing consumerism with politics can turn ugly.  And Chick-fil-A has become a case in point.

Mr. Cathy's interview led to the fast food chain's expansion facing significant, vocal opposition from Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino, who has called the chain a direct insult to gays, and has informed the company that it is simply not welcome in Boston.

Putting aside the First Amendment implications of these threats, it is clear that when a brand wades too deeply into political waters, there can be undesirable economic consequences.

Warner Brothers Studio Faces Legal and Public Relations Nightmare

Amidst the current news reports that The Dark Knight Rises’ actor Christian Bale made a surprise visit to the survivors of the Aurora, Colorado theater massacre, was a curious comment:

“Mr. Bale is there as himself, not representing Warner Brothers,” reportedly said an assistant to Susan Fleishman, the executive vice president for corporate communications at the movie studio.

But why would the studio seemingly want to distance itself from Mr. Bale’s charitable and apparently welcome visit?  

To be sure, the movie studio has already made a substantial donation to the victims, and is obviously not callous or indifferent to the suffering caused by the worst mass shooting in U.S. history.

Carey Rottman with Christian Bale / Facebook

Rather, the answer may have more to do with the unfortunate position that Warner Brothers now faces from both a legal and public relations perspective.

First, the Warner Brothers’ “Dark Knight” franchise is regrettably forever linked as part of the Colorado shooter’s motives, as the suspect appeared in a Colorado courtroom earlier this week with hair dyed red and orange, reportedly claiming to police that he was the Joker character played by the late Heath Ledger.

Warner Brothers’ desire to at least try and keep some distance between itself and the tragedy to avoid civil liability is not based on paranoia.

Indeed, one of the shooting victims has already filed a lawsuit against the studio, alleging that the violence depicted in the Dark Knight films is a legally contributing factor to the shootings. (That same suit has also in turn blamed the lack of security at the movie theater, and the suspect’s doctor for failing to treat him properly).

Plaintiffs’ lawyers may want to take advantage of a reasonable cooling off period before firing off such lawsuits.  The criminal investigation has barely just begun, and will undoubtedly shed much more light on the suspect’s state of mind, motives and conduct in weeks and months to come.

It is worth noting that civil lawsuits blaming content creators for the criminal acts of deranged minds have a tendency to fail.  And, in fact, Colorado has precedent nearly on point:  Nintendo of America, Activision and Sony Computer Entertainment were named as defendants in a civil lawsuit filed by the families of the 13 victims killed in the 1999 massacre at Columbine High School in Littleton, Colorado.

That lawsuit was aimed at 25 entertainment companies in total and sought $5 billion in damages.  Ultimately, the case was dismissed by a Colorado federal court in March 2002, with the Court finding that the media and videogame companies could not have reasonably foreseen that their products would cause the horrific events that occurred in the Columbine massacre or other acts of violence.

"Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence," District Court Judge Babcock wrote in his opinion.

The "Trashing" of Coke: Product Disparagement or Free Speech?

By Panhard [GFDL  CC-BY-SA-3.0] / Wikimedia Commons

Are you legally permitted to depict your competitor's products in a heap of trash to make an environmental comparison? Coca-Cola doesn't think so.

The megabrand's trademark lawyers recently sent a cease and desist letter to a soft drink competitor called Sodastream, about its new, aggressive international advertising campaign.

Sodastream sells a variety of flavoring and carbonating devices that allow consumers to essentially create and bottle their own soft drinks.  Part of Sodastream's pitch is that it claims to be more environmentally-friendly than its pre-packaged soft drink competitors.

In 2010, after a successful IPO, Sodastream launched an international campaign purportedly aimed at raising awareness of bottle and can consumption. The campaign involves the display of 9-cubic meter cages in various countries, each containing 10,657 bottles and cans gathered by Sodastream from landfills. 

Begun in Belgium, the "Cage campaign" has since visited 30 countries with the message that the waste produced by one family over the course of five years from beverage containers – 10,657 bottles and cans – can be replaced by a single Sodastream bottle.

On its website, Sodastream makes the following environmental and competitive claims about its products:

Eirik Newth / Creative Commons

"One SodaStream carbonator makes 60 or 110 liters, equivalent to 170 or 310 aluminum cans! When empty, the carbonator is refilled and reused, ready to make more fizzy and tasty soda whenever you want it."

While Coca-Cola's demand letter is focused on allegations under South Africa's unfair competition law, the broader legal question is relevant within the U.S., as well.

Indeed, this question is particularly germane given Sodastream is apparently bringing its marketing campaign right to Coca-Cola's doorstep in Atlanta, Georgia.

Despite arguments that such advertising is protected free speech under the First Amendment, the use of a competitor's branded product in such a commercial manner may nonetheless be actionable under U.S. intellectual property law.

First, federal trademark law contains an anti-dilution provision, which prohibits the use of commercial advertisements which dilute a brand by "tarnishment." Dilution can be actionable even if the consumer is not confused as to the source of the goods being advertised.

Second, by creating a heaping pile of trash made up (at least in part) of Coca-Cola branded products, Coca-Cola could argue that there is an implied and unfair product and brand disparagement that harms its goodwill among consumers without justification or substantiation.

Sodastream would presumably counter by claiming that the Coca-Cola product is not being disparaged.  Rather, Sodastream could contend that it is merely engaging in a form of truthful, protected free speech that accurately demonstrates the environmental impact that canned soda has.

In the end, if ever litigated, the final outcome in the U.S. would turn on whether a Court would consider the Sodastream campaign a form of constitutionally protected free speech about the environmental impact of a competitor, or nothing more than trademark dilution and product disparagement by an overly aggressive upstart.

Who Owns Police "Mug Shots"?

Unless you are John Gotti or Robert Downey, Jr., if you have ever been arrested and had your police "mugshot" taken during routine booking procedures, you may find yourself staying up at night worrying about where that mugshot may someday end up. 

Depending on your level of notoriety, websites such as MugShots.com and TheSmokingGun.com are giving some people good reason to worry about just that.

MugShots.com calls itself a “search engine for Official Law Enforcement records, specifically booking photographs." While TheSmokingGun.com focuses on historical and "high profile" figures, some websites have been accused of "extortion" and "blackmail" for publishing mugshots of wholly private individuals who were -- at some point in their lives -- accused of crimes ranging from disorderly conduct to armed robbery.  Some of these sites will offer to remove your mugshot, for a fee of course.

Putting aside the thorny privacy issues involved, an intellectual property question has been raised:  "Are these mugshots in the public domain?"

The answer from an intellectual property practitioner's perspective is that mug shots are not necessarily in the public domain, and third party websites do not possess an automatic exemption from infringing otherwise validly owned federal copyrights.

According to the MugShots.com website, "originally collected and distributed by Law Enforcement agencies, Booking records are considered and legally recognized as public records, in the public domain." That site claims that it "republishes these Official Records in their original form ("as is") under the First Amendment to the United States Constitution, the freedom to publish true and factual information. Our intent is to provide a legitimate and useful service for both the private and public sectors."

MugShots.com goes on to say that "all information on the mugshot pages on Mugshots.com was originated [sic] with law enforcement agencies.  We publish the information "as is" and do not edit it."

There are several serious flaws with these legal arguments.

After 1976, the Copyright Act provided that copyright attaches automatically upon the creation of an original work that is fixed in a tangible medium of expression. After 1976, copyright protection is automatic and vests instantly in the photographer.

Therefore, after 1976, when a police officer or civilian photographer stood behind a camera and snapped a mugshot, it is that photographer who technically owned the copyright in the image the very instant it was created in tangible form.  Before that, much stricter copyright notice requirements applied, forcing many photographs published without notice into the public domain.

Elvis Presley in a 1956 mugshot/
Wikimedia Commons / Public Domain

If the photographer was an employee of the U.S. federal government, then the legal analysis ends.  The U.S. federal government has openly disclaimed any and all copyright ownership in its documents, including mugshots.  Therefore, such mugshots, once released, are freely in the public domain for copyright purposes, and can be reproduced, altered or used in any form without violating federal copyright laws.  (It is worth noting that a federal appeals court recently ruled that there is no Freedom of Information Act obligation for the feds to release mugshots).

However, thousands of the mugshots that appear on these sites appear to have been taken by photographers that were employed by state and local police and sheriff’s departments, and who took the photographs in the course of their duties.

In those cases, the individual photographers who took the mugshots presumably entered into an employment agreement assigning ownership of the photographic work product to their employers.  So whatever copyright inhered in the mugshots when they were first taken by the photographer would be assigned to the police department or municipality.

Further, each local municipality and police department has its own laws, policies, regulations dictating who now owns copyrights to the mugshots, and who can use or distribute them, and for what purpose.

Some local jurisdictions take the approach that mugshots are valuable to law enforcement only during ongoing investigations, and restrict access to them until the case is resolved.  Others take a more open approach similar to the federal government, and waive any copyrights they might otherwise have owned in these images, regardless of how they are subsequently used or exploited.  Others go even farther, and encourage the public viewing of these images as a deterrent.

So, if a local police department has not otherwise waived its copyrights to the mugshots, as a technical matter, for a website to display, reproduce them or alter them for commercial gain would likely constitute a prima facie case of copyright infringement.

Indeed, it is worth noting that such a site would arguably infringe upon every single aspect of the copyright statute – the right to display, reproduce and even modify/alter the images. For example, despite its own claim that the images are reproduced verbatim from government files, it appears that every single mugshot on MugShots.com contains an embedded watermark, which was obviously added later.  Such conduct could violate the federally-recognized copyrights of local police departments which have not otherwise disclaimed their copyrights in and to control how these images are altered or used to create derivative works.

What about Fair Use?

Fair use is a defense to infringement, not an automatic exemption.  Indeed, the Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  This means that, in litigation involving allegations of copyright infringement, the defendant squarely bears the burden of raising and proving that his use was "fair" and not an unauthorized infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.  If the work was not copyrightable, if the term had expired, or the defendant's work borrowed only a very small amount, for instance, then the plaintiff cannot even make out a prima facie case of infringement, and the defendant need not even raise a fair use defense. However, as discussed above, a prima facie case of copyright infringement could theoretically be asserted by a municipality or police department that had not otherwise waived its copyright to control the commercial exploitation of these images.  Whether or not such a case will ever be filed is currently unknown.

Unfortunately, for those arrested for disorderly conduct outside a bar twenty years ago, and who were mortified to discover their faces displayed on a commercial website and want to demand legal action under intellectual property laws, you will have to wait.  Under current federal copyright law, you probably don't have standing to sue on behalf of the copyright holders.

Off-Broadway Show Accused of Infringing Three's Company Copyrights

Public Domain / Wikimedia Commons

Playwright David Adjmi's off-Broadway play “3C” has been accused of being nothing more than blatant copyright infringement by DLT Entertainment, the company that owns the copyright to the popular 1970's television series.

According to a report in the New York Times, Adjmi received a detailed cease-and-desist letter from DLT Entertainment's lawyers, accusing him of copyright infringement, and listing numerous points of similarity between the play and the sitcom.  A stage adaptation of "Three's Company" is apparently in the works and DLT alleges that Adjmi's play was damaging to it.

According to the New York Times, Donald Taffner Jr., president of DLT Entertainment, said the company was “very protective of the overall brand” because the show continued to earn substantial revenues from syndication on TV Land and on home video.

3C used a scenario similar to that of "Three's Company," but explored darker implications of American culture in that period.  The now-closed production ran June 6-July 14 at the Rattlestick Playwrights Theater.

A representative for the Dramatists Guild was quoted in Playbill.com as saying: "the right of authors to make fair comment on pre-existing work (whether through parody or other forms of fair use) is a First Amendment safety valve in the copyright law, and one we wholeheartedly support, as do the courts. If the author contacts us, we will discuss the issue with him and see how we can help."

Adjmi's plight apparently caught the attention of those within the New York theater community, who cited the actions of DLT Entertainment as bullying (a common thread), stating that they believe that Adjmi's play clearly fell under the umbrella of parody — which is protected by the First Amendment.

Other playwrights have explored similar territory, including Bert V. Royal's Dog Sees God, which centers on the teen years of the Peanuts gang.

Tony Award-nominated playwright Jon Robin Baitz penned an open letter explaining why it was important that members of the New York theater community rally behind Adjmi's work and First Amendment rights, calling 3C "clearly and patently and unremittingly parody."

Playbill notes that Rattlestick's marketing materials never drew any direct links to 3C and "Three's Company," describing the play as being "inspired by 1970's sitcoms, 1950's existentialist comedy, Chekhov, and disco anthems," adding that it was a "terrifying yet amusing look at a culture that likes to amuse itself, even as it teeters on the brink of ruin."

"I am not a lawyer, but David may need one, and I am currently investigating the willingness of a respected First Amendment firm to take this case on pro-bono," Baitz stated in his open letter.

"That an Off-Broadway playwright should be bullied by a Wall Street law firm over a long-gone TV show, is, in and of itself, worthy of parody, but in fact, this should be taken seriously enough to merit raising our voices in support of Adjmi and his play, which Kenyon & Kenyon is insisting be placed in a drawer and never published or performed again.  Whether one appreciates the work or not is immaterial; the principle at stake here is a basic one. Specious and spurious legal bullying of artists should be vigorously opposed, and that opposition must begin first and foremost with all of us in the New York Theatre community."

Among the notable individuals to add their names in support were Stephen Sondheim, Tony Kushner, Andre Bishop, Joe Mantello, Terrence McNally, Kenneth Lonergan, John Guare, Terry Kinney, Stephen Adley Guirgis and John Patrick Shanley.

Can Religious Symbols Be Trademarked?

At the intersection of intellectual property, culture and the First Amendment lies the interesting question:  Can religious symbols be trademarked under U.S. law?

In short, the answer is yes.


There is no inherent or statutory bar for a symbol that has acquired religious connotations and spiritual meaning to a group of believers to become protected as a federally registered commercial trademark, provided that certain legal conditions are met.


For example, the mark must be "used in commerce" and become associated with a "single source."


These legal requirements demand that some form of commercial goods or services are offered in connection with the mark by a single entity, either a church, not-for-profit organization or corporation.  Therefore, a "generic" religious symbol such as a crucifix would not be protectable because it represents a system of beliefs that is not associated with a single identifiable "source."  That is, the Roman Catholic Church could lay a claim to it, but so could Orthodox, Protestant denominations, and thousands of other Christian organizations.


Additionally, even the name of a church or religion can be trademarked.  For example, "THE EPISCOPAL CHURCH" is a federally registered trademark for religious instruction services (see right).


In one federal lawsuit testing the bounds of these concepts, the Te-Ta-Ma Truth Foundation-Family (the “Foundation”) sued the World Church of the Creator (the “World Church”), alleging that the World Church infringed its registered trademark for “Church of the Creator.”

The World Church was one of three primary divisions of the white supremacist movement. The mission of the Defendant was twofold: (1) to ensure the survival, expansion and advancement of the white race and (2) to eliminate Jews, blacks and “mud- races.”  The Foundation, on the other hand, was a denomination professing universal love and respect, and actively included everyone who wished to join.  In order words, the beliefs ensconced by the World Church were diametrically opposed to the beliefs practiced by the Foundation and therefore fundamentally incompatible.

On appeal, the Seventh Circuit  Court of Appeals held that the World Church infringed the Foundation’s trademark. The court held that the Foundation’s name did not preclude others from distinguishing themselves and implied that the name encapsulated the Foundation’s identity: “[U]sing ‘Church of the Creator’ as a denominational name leaves ample options for other sects to distinguish themselves and achieve separate identities.”

The issue affects all organized religions.  For example, a Lubavitch Jewish religious group that uses a symbol of the Torah and Hebrew letters on a shield has litigated whether or not this symbol can legitimately function as a trademark. The Trademark Trial and Appeal Board held that it could.

In an article titled "Register Trademarks and Keep the Faith:  Trademarks, Religion and Identity," Professor David A. Simon writes about some of the issues confronted when religious organizations wage secular court battles over the unauthorized use of religious trademarks.

Professor Simon notes that such litigation is not a traditional trademark dispute.  Such cases are focused on protecting rights to compete in commerce.  Here, the dispute is driven by a unique cultural struggle to protect religious identity, but the parties are forced to use the secular litigation system to resolve essentially cultural, "identity" disputes.

He suggests a novel approach to resolving such disputes that is modeled on the Uniform Dispute Resolution Procedure ("UDRP") triggered when there are disputes surrounding the legitimacy of Internet domain names.

In any event, even if permitted under intellectual property law, applying secular trademark concepts to legal disputes involving religious identity and cultural control remains an uneasy fit.

Pop Art: Free Expression or Trademark Infringement?

A frequently-asked question of Intellectual Property lawyers relates to pop artists' use of famous, trademarked products in the context of artistic expression, and whether such uses are protected free speech, or are really nothing more than infringement and dilution cloaked in the guise of art.  Examples include Andy Warhol's famous paintings of Campbell's soup cans (above), as well as the juxtaposition of famous brand logos on guns and weapons of war such as Peter Gronquists' controversial uses (see below).  The legal analysis is not simple, and depends largely on the factual circumstances surrounding the use of the trademarked products.

A trademark is a word, symbol or design used to identify the source of a product. In order for a court to determine if the unauthorized use of a trademark constitutes unlawful infringement, at least eight (8) non-exhaustive factors are considered, including: (a) the strength of the mark; (b) degree of similarity between marks; (c) proximity of the products; (d) likelihood that senior user will bridge the gap between the goods; (e) actual confusion; (f) junior user's bad faith; (g) quality of the junior user's product; and (h) sophistication of the relevant consumers. Polaroid Corporation v. Polarad Electronics Corp., 287 F. 2d 492 (2nd Cir. 1961).  Additionally, the Court will consider if the use is "likely to dilute" the fame of a famous trademark through either blurring or tarnishment. 15 U.S.C. § 1125.

Even when grounds for a potential infringement or dilution claim exist, certain defenses are available to an artist depicting the trademarks in an artistic creation. Primarily, the artist may be able to defend the claim on the grounds of "fair use" of the trademark. However, fair use is an affirmative defense, which means that it is only asserted once the artist has been sued in court.

An illustrative case involving the use of trademarked products as part of an artistic creation is Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003). In that case, photographer Thomas Forsythe developed a photographic series entitled "Food Chain Barbie," which depicted Barbie dolls in various disturbing and provocative positions, such as being roasted in an oven or in a blender and fondue pot (see below):

Copyright Thomas Forsythe

After being sued by Mattel, Forsythe argued that his creative images attempted to "critique [ ] the objectification of women associated with [Barbie]," and to "lambast [ ] the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies." Id.

The Ninth Circuit Court of Appeals found that Forsythe's use of the Barbie dolls in this manner constituted fair use, as it was transformative, defining this requirement as: "add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id.

The Ninth Circuit explained that "when [trade]marks 'transcend their identifying purpose' and 'enter public discourse and become an integral part of our vocabulary,' they 'assume[ ] a role outside the bounds of trademark law.' Where a mark assumes such cultural significance, First Amendment protections come into play: '[T]he trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.'" Id.

To try to address concerns about exposure to claims for trademark infringement, some artists incorporate disclaimers in their catalogs or on websites that advise the consumer that the use of the trademarks is not licensed or authorized by the trademark owner. While a disclaimer can help address possible confusion, it does not guarantee freedom from liability.

Ultimately, to prevail in convincing a Court that a particular use of a trademark in a painting or photograph is sufficiently transformative to shield that use behind the First Amendment, will depend on the facts of the given case.

The legal outcome, much as the appreciation of the pop art itself, may very well depend on the viewpoint of the beholder.