Pandemic art kit didn't infringe artist's rights

 Keck v. Mix Creative Learning Center, LLC, No. 4:21-CV-00430, 2022 WL 19691177 (S.D. Tex. Dec. 19, 2022)

Technically, the trademark analysis here is weird (the parties agreed that the copyright fair use analysis would determine the trademark fair use analysis; the plaintiff’s lawyer is Higbee, FWIW), but the trademark claim is so clearly Dastar-barred and parasitic on the copyright claims that it’s hard to object.

Keck is a mixed-media artist who registered a trademark in her name (the court doesn’t specify for what, which is an indication of the level of attention given the trademark claims). Defendants used a couple of pictures of her Dog Art work as an example of a style that kids using its art kits could emulate. The court found that this was fair use and granted summary judgment to defendants.

During the pandemic, defendants (a local art studio and its principal) began selling art kits online “so that the students could learn about media, styles and techniques that world-renowned and lesser-known artists use, as inspiration for the students to create their own works of art.” According to Defendants, “[t]he artist’s biography and a sample of the artist’s style of work was included in each kit to recognize the artist and to document and teach the particular art style, as well as recognize such works as part of historic scholarship, promote discussion and criticism, and to inspire each student to create their own masterpiece works.” The kits included slides “with publicly available images of the artist’s works along with historical and biographical information about the artist from, for example, the artist’s publicly available website.” Defendants provided zoom art classes to accompany the kits. As part of these lessons, the individual defendant described the artists and their techniques. Several artists featured in the kits applauded and even reposted the children’s work on their Instagram accounts.

One such kit was the “Michel Keck inspired dog masterpiece kit.” The kit consisted of pictures of six pieces of Plaintiff’s art, biographical slides, and materials such as paint, paint brushes, and collage-style puzzle pieces “so that the students would have the necessary materials to create their own masterpieces in the form of mosaics and/or completely new artworks.” The copies of Keck’s work were made by right-clicking Google images. 

defendant's ad for art kit

Defendants sold only six of these kits—including two sold to Keck—for gross revenue of $240. Once they received notice of the lawsuit, they removed all art kits from the website. Plaintiff continued to demand $150,000 per work, which can’t have helped the optics.

The use was commercial but transformative. “While Defendants made no alterations to the works, they included the pictures in a kit with tools to allow students to create their own art. Defendants also prepared slides with biographical information on the artists.” Unlike in Warhol v. Goldsmith, the purpose and character was “not to create commercial visual art but to teach children about different artistic styles…. [T]he use of source material, accompanied by biographical information or other scholarship or lessons, transforms art into an educational tool.”

The court noted that defendants weren’t “in the business of selling artistic reproductions and did not sell these kits as works of art themselves. Defendants did not include Keck’s art in the kit for their inherent decorative value but to demonstrate a specific style of art.” The educational purpose didn’t need to be “as rigorous as that provided in a museum exhibit or university art history course.” Defendants also acted in good faith. “They had no warning before this of Plaintiff’s—or any other artist’s—displeasure.”

Interestingly, this all only tilted factor one “slightly” in favor of defendants.

Nature of the work: favored plaintiff, but least important.

Amount/substantiality: not important; six pieces of art were used (the court doesn’t discuss size or resolution).

Market effect: The proper market is not “licensing of any kind” or “merchandising.” “Conceptualizing a defendant’s conduct too broadly would render any unauthorized as harmful to the market for an artist’s work, calling into question the usefulness of this fourth factor.” The proper market was licensing for art kits that use the art as “an example of a particular art style and inspiration for students.” This didn't show market harm. Moreover, “[t]he widespread use of Plaintiff’s art for educational lessons would likely, if anything, increase her name recognition and commercial value.”