Thursday, April 5, 2012

Blue Dog and Intellectual Property (Guest Blog Entry)


Guest blog entry by Jacques Rodrigue, George Rodrigue’s son.  He currently serves as House Counsel for Rodrigue Studio and Executive Director of the George Rodrigue Foundation of the Arts.  He is a graduate of Tulane Law School in New Orleans. 

Greetings everyone!  Jacques Rodrigue here.  Wendy is taking a much-deserved break this week from blogging while on vacation.  So, I volunteered to fill in and do a guest blog entry!

Last Wednesday, the Louisiana State University Law School’s Intellectual Property Law Association invited me to give a guest lecture.  I spoke to about 100 law students about how we use U.S. Copyright Law to stop people from illegally copying my dad’s artwork. 

Additionally, in conjunction with my lecture, LSU Law Students raffled off a Blue Dog print to help buy art supplies for a project that they did with a local Baton Rouge school through the George Rodrigue Foundation of the Arts.  Thank you to all of the students for their support and helping to keep the arts in education!  (click photos to enlarge)


(pictured, Jacques Rodrigue lecturing at LSU Law School wearing his "Blue Dog Shoes" that were seized for violating George Rodrigue's copyrights.)

So, what am I going to blog about today?  Well, Wendy always does such a great job giving a great “artistic” perspective of what we do.  Now, this seems like the perfect time to recap my lecture and let you know about one of the “legal” sides of our business.  Protecting copyrights is a very important task that we all deal with on a daily basis.

Don’t worry guys, I am not going to drown you all in legalese, however my dad’s artwork does bring up many unique and interesting legal issues that everyone should enjoy.

First, I made it a point to trace my dad’s entire life in my lecture from growing up in New Iberia, going to art school in Los Angeles, then coming back to Louisiana to visually interpret the history of the Cajuns and finally the origins of the Blue Dog and where the Blue Dog is today.


(George Rodrigue c. 1970 with a typical landscape from his early years as a professional artist)

I wanted these aspiring intellectual property lawyers to understand that all of their future clients (artists, musicians, writers and filmmakers) have an equally important and interesting story.  They all have a “life’s work” that they don’t want others to copy because artists don’t want anyone else to wrongfully profit from their creations or harm the integrity of what they originally made.

However, oftentimes artists are intimidated by a confusing legal system and they don’t know what their rights are.  Therefore, it is the attorney that must vigilantly protect the artist’s rights so that the artist has a “peace of mind” knowing that the fruits of their labor are safe.

In fact, that is why we have all intellectual property law.  It is to provide the right incentives for creative people to put their new ideas on paper so that all of society can benefit from what no one has ever seen and what has never existed before.

So, that is what I do.  I protect my dad’s intellectual property rights so he doesn't have to worry about the past.  He is able to fully focus on the future in order to take the Blue Dog on an artistic journey that has never been done before. 


(pictured, "Swamp Dog #4" a series printed on metal new for 2012)

Additionally, I have a duty to protect the investments that all of our clients have made in our artwork that we sell.  They have to know that the market value of their silkscreens and paintings will not be diminished by the illegal acts of others.

For example, if we would let anyone make t-shirts and fake paintings the market would be flooded with cheap Blue Dog images.  Consequently, clients would no longer see the value in the rare prints and one-of-a-kind paintings bought directly from George Rodrigue.  

As you may know, Wendy has said that we don’t license the Blue Dog image.  There are no Blue Dog t-shirts, products, lunch boxes, or cartoons.  Our only true mass produced item are our nearly 15 books that serve to spread my dad’s artwork to a wider audience in what we think is the “right” way (like our newest revised and updated “The Art of George Rodrigue” new in paperback for 2012).



People from around the world email or call every week for a licensing deal.  Oftentimes, they think that with their idea they will be doing us a favor by licensing the Blue Dog for use on their product.  They think the extra publicity of the Blue Dog being associated with their brands will make our artwork more valuable.

However, our view is quite the contrary.  Though perhaps one day when his artistic legacy is solidified we may entertain other licensing agreements, for now, my dad’s images and artwork are unmistakably his own.   If we jumped at every partnership that came along we would run the risk of cheapening what my dad has spent his entire career creating.  That is why we rarely partner with other entities unless the project really feels right (like with Xerox and Absolut Vodka). 


(pictured, "Absolut Rodrigue" by George Rodrigue)

But, what can we really protect?

Unfortunately, we don’t have exclusive ownership to the idea of a Blue Dog*.  Copyrights only give authors protection to their ideas once they have been “fixed in a tangible medium of expression.”

Basically, anyone can paint their own blue dog and we can only stop people from making a "Blue Dog" that looks “substantially similar” to George Rodrigue's Blue Dog.  In other words, would the average person think that another person’s blue (or green or yellow) dog looks like it is a copy of ours?  To do that, you would look at the specific outline of the shape of the dog, the eyes, the nose, the mouth, the interior of the ears, the color etc.

In practice, this is actually a pretty easy test for us.  We know almost immediately if something is an illegal copy or not.  So, when we see an illegal copy out there, we seize it, destroy it, and if it was sold, we collect whatever profits that were made. 


(pictured, an illegal Blue Dog papier mache copy seized from a store in the French Quarter, New Orleans.)

Also, important to note is that we actually find out about most copyright infringement from our clients and fans.  They are an army of eyes scanning the market that want to either protect their own investments in our work or are just big supporters of artists' rights.  We can’t thank all them enough for being our eyes and ears out there!

That finally brings us to the fun part that people are interested in seeing.  We then looked at a few examples of infringement over the years.


(pictured, seized "Blue Dog" cell phone cases that were made in China.)

One issue that we deal with constantly are pages cut out of our books** and framed to look like prints that we sell in the gallery.  For now, this is our most important issue that we stop anytime that we see in flea markets and on eBay. 

We are on pretty solid legal ground to seize these items as "derivative works" because of the very similar facts in the case Mirage Editions, Inc. v. Albuquerque A.R.T. Co.***

These pieces are essentially worthless, yet people pay $30 to over $100 for them because they think they are real hand-signed prints that look big when matted and/or framed.  In actuality, they are just printed pictures of signed paintings that have no value.  We have taken down literally hundreds of eBay listings and seized thousands of these matted pages over the years. 


(pictured, a typical box of one-hundred matted pages cut from books that we seized. These particular cutouts were listed at $30 each)

Thankfully, when we seek to seize these items, whoever made them hands them over without a fight and eBay is also great to take down illegal listings almost immediately. 

Next, I touched on the high profile case of when miniature cows were illegally made depicting the Blue Dog image.  Originally, my dad made a life-size cow for the Chicago Cow parade and some of their organizers sold miniature cows across the country in Hallmark stores without permission.  My dad eventually seized the illegal cows and used them in a display at the New Orleans Museum of Art (full story here).


Also, there are plenty of outright fake paintings that we find around the country.  Rarely, a person is actually painting their own Blue Dog copies and trying to make a profit themselves.  More commonly, someone unknowingly buys one of these paintings at a thrift store or estate sale and tries to resell them (two of many examples below). 



Plus, I can’t tell you how many times I've heard from an unsuspecting heir, 
“My Grandma had this painting in her house and we want to know how much it is worth.  How rich are we?”  
Unfortunately, most times, I have to tell them that Grandma had an illegal painting (like the fake "Blue Suede Shoes" below) and what you have has no value.  In addition, you can’t sell it and I need to take it from you because we can't allow fakes to exist in the marketplace.  


Finally, the last thing I touched on in my lecture was some very scary infringement.  A few years ago, we found a Chinese website that claimed they could paint any Blue Dog painting ever made for about $100.   After doing some research, we learned that there are in fact a few villages in China that are full of artists who can copy any painting to sell across the world.

This is scary because oftentimes the Chinese government does not usually recognize foreign intellectual property rights.  Luckily, in this case, the website was hosted by an internet service provider owned by Google and we were able to get Google to shut the site down.  However, it is pretty scary to not have any idea how many fakes are circulating in China.  


(pictured, a fake Blue Dog painting painted in China that we ordered to see how good of a copy they could make.  As you can see, the copy is pretty good.)

All in all, I think the lecture went very well.  The students seemed really engaged by the things I had to say and show them.  Plus, this lecture got me to organize my thoughts for what I had to do the next day.
 
On Thursday, I served as resident “expert” for the History Channel’s reality show “Cajun Pawn Stars” filmed in Alexandria, Louisiana.  I can’t reveal too much about the show that airs this summer, but I had to evaluate a Blue Dog print that someone was trying to sell in the shop. 

In my appearance I got to say something that most of these experts on similar reality shows both can’t say and don’t have the authority to say when they evaluate a piece’s authenticity.  The producers there really liked having this extra wrinkle in the story.   

“Jimmie, I really hope that what I am about to see today is real.  Because if it is a fake and it was not made by George Rodrigue . . . I will have no choice but to SEIZE it and DESTROY it!” 


(pictured, Jacques Rodrigue with Jimmie “Big Daddy” DeRamus from the Silver Dollar Pawn and Jewelry Center and "Cajun Pawn Stars")

Just another day in the life of a copyright enforcer . . .

Thanks for letting me be your guest blogger this week!  I hope now everyone has a new appreciation for the importance of copyright enforcement.  Because ultimately, if we did not diligently enforce our rights we would be at risk of losing the protections granted to us by Copyright Law.  

Wendy will be back soon!  She did blog from Jackson, Wyoming this week for the New Orleans paper Gambit Weekly, in a funny account, linked here-

Jacques

*Nor do we own the generic words “Blue” and “Dog” under Trademark Law which is outside of the scope of this blog entry even though we do have other protections granted to us through our registered Trademarks

**Please note the difference between a framed page from a book and a framed note card.  Unfortunately, the law does not allow us to seize framed note cards.

**Mirage, 856 F.2d 1341 (9th Cir. 1988)


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19 comments:

  1. Great job 'filling in' for Wendy. I really found this interesting too, because I have seen obviously fake Blue Dog items in the past and I have also seen the occasional framed notecard on eBay and wondered what, if anything, could be done.

    I live in a University town and we often have items (mainly t-shirts) come up for sale on Game Days that are not authentic and are illegal, so I have a passing familiarity with the problems faced by the owner of the property. I really enjoyed reading the POV of 'the Enforcer'! Thanks Jacques.

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  2. Excellent article on copyright infringement. I enjoyed the "behind the canvas" insight into the "seize and destroy" practice. I shared this on my facebook page for other artists to gleen from. thank you!

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  3. Dana Holland-BeickertApril 5, 2012 at 1:19 PM

    Excellent blog Jacques! Enjoyed to to the very end! Hope Wendy is having a nice vacation.

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  4. I've loved Blue Dog for a long time and this post was very informative. I have two Blue Dog prints, "A Number One Tiger Fan" and "We Will Rise Again", both of which I absolutely adore. I have a question though if you don't mind my asking. I am on the mailing list and frequently receive post cards of new releases and such. I have of course kept all of them in a folder and have often contemplated framing them to hang in a grouping (not to be sold, in my home). Would I be violating any of the above mentioned laws? Thanks for any information.

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  5. Jacques RodrigueApril 5, 2012 at 3:54 PM

    Thanks for the encouragement guys! It was fun filling in for a week. But, it was hard work! I don't see how Wendy does it!

    Jennifer, thanks for your comments! The post cards that we mail are in fact treated differently from the pages cut from our books.

    Not to get too technical, but Copyright owners have the exclusive right to prepare "derivative works." So, to frame a note card is not altering the character of the original enough in order to be considered a "derivative work" but the act of cutting a page from a book and framing is.

    Hope that helps!

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  6. Hi, I lived next door to George in New Iberia in the middle 1950s. He used to play with my brother and I and color on our front porch. Wish my mother had kept those colorings! I do still have a postcard George sent to my brother and I from Mexico while vacationing with his aunt. around 1953- 55. Would be glad to share this with George and/or family members if interested. My email glenn.moreau@gmail.com

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  7. How do you treat "fan art"? If someone is a fan and paints their own blue dog, not for sale but just for themselves, would that be seized and destroyed as well?

    Are you allowed to paint your own copy if you sign it with your own name and don't sell it?

    My grandmother had a lovely copy of a Renoir that someone had hand painted - is that illegal as well? Or is Renoir public domain now that he's been dead for so long?

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  8. Jacques RodrigueApril 6, 2012 at 1:14 PM

    Anonymous, thanks for your question about "fan art."

    In practice, we don't seize copies that people make for themselves. Not only would it be too complicated and burdensome for us to keep track of, but, most of these copies are probably allowed legally.

    This kind of gets very technical in legal terms, but, most of these are allowed because of the first amendment and the "fair use" defense to copyright infringement. The primary purpose for people making them is not a "commercial purpose."

    However, even if someone originally made one for themselves, if they or one of their heirs or someone they gave it to tries to sell it then that is when we come in to take it out of the marketplace for the reasons listed in my blog entry.

    More about fair use here:

    http://en.wikipedia.org/wiki/Fair_use

    As for Renoir, his copyrights have expired because he died over 70 years ago. Copyrights are only valid for the life of the artist +70 years. So, you are correct, any copies of his work are not illegal because all of his art is now in the public domain.

    Hope that clears things up!

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  9. Great post and so informative! I love Blue Dog and hope to someday own a real one. Thanks for all the info.

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  10. You’ll be pleased to know that your doing an excellent job protecting George’s property. I have my paintings in a shop on the 600 block of Royal and I wanted to give my “Lucky Blue Hot Dog” a day in court on the free market. But the when the owners saw it they were completely terrified and insisted it disappear forever. I told them that I gave George an original of it and he didn’t seem offended so I thought it would be alright. Apparently before I was with them they had an altercation with your lawyers. One of their artists painted a French Quarter scene, the corner of Royal and Orleans and had an unabashed representation of a Blue Dog in your old gallery.

    You said, “In practice, this is [determining a copy] actually a pretty easy test for us.” I’ve thought about copyrights quite a bit and have always thought that it would be rather difficult for the majority of hand made work, especially for landscapes and portraits. As an academic artist painting from life, I copy what I see in reality, therefor if another person stands in the same place to paint their painting would obviously be similar to mine. I’ve listened to my plein air painting friend, who likes to go by the name “The phantom artist”, speak about some of “his” compositions with a sense of propriety. He actually believes that he taught me how to paint, even though there’s a conspicuous lack of any lessons. Sure our paintings are going to have similarities in color, shape and the fact that we both love the pallet knife. There are only so many things to paint in the French Quarter so there’s bound to be some repetition in the plein air arena in such a small area.

    My Lucky Blue Hot Dog was obviously and intentionally derived from the Blue Dog. The idea behind it was a comment on my feeling towards the little guy. In my painting the tubed meat was blue, the mustard and ketchup that oozed from the bun conformed to the shape of his legs and the bite mark made a nice seat for it. His pickle eyes and onion lips had the same gaze as the blue dog, but I felt rather confident that in the world of ideas it was unique and therefore should stand any attack from lawyers.

    Copyright about paintings made by hand seem subjective, standing on rather mushy ground. However, the simpler the subject, the easier it is to determine if a work is a “copy”. A rabbit or mouse containing simplified lines, curves and only a couple solid colors might be easy to determine but beyond that, my feeling is that what is a copy or not is significantly in the world of opinion.

    A zerox copy is black and white and doesn’t need much discussion, even if the zerox machine is an army of cheap Chinese labor. Taking a jpg. of another artist’s work and making a print is obviously theft. I put hi resolution images of my work on the web with the only protection being an easily scrubbed watermark. I stand beside musicians in this digital world knowing that cut paste is going to happen. I find solace in the confidence that my strokes can not be duplicated, making the original of infinity more value and that if I find prints of my work out there I won’t have to go broke with lawyer fees. Some day hopefully musicians will get what they deserve for their live performances.

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    1. Hi Robert- I have no idea if your piece was a copyright violation or not. By your own admission, you weren't challenged by George Rodrigue, but rather by the gallery where you brought your painting. I leave it to Jacques Rodrigue to answer further or not. I wish you all the best on your personal artistic path, as I always have. Best- Wendy

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  11. Yeah, I know it's more a post than a comment. I hope you don't think I'm a troll. I understand if it gets cut on your sight. I've been needing to post something on my blog suttonart.com/word for a while and this seemed to fit.

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  12. Thanks for the comment Robert. Here are a few more thoughts:

    You are right, in many of the intellectual property cases a large part of the discussion is about whether or not something has been copied. Plus, many things (like nature, architecture, etc.) are in the public domain and can be copied by anyone. Plus, a "style" or the "idea of a style" can't be protected either. So, it is usually tough for any artist to keep ownership of the things they have painted.

    For us though, my Dad's work is well-defined and does give him ownership of the image of his Blue Dog. It is always a tight rope to decide which projects to seize. Most of the time, my Dad could care less if someone copied his work. He keeps true to his own artistic vision and can't be worried about how others treat the work he puts out.

    So, often, the real test is whether or not one of our clients (who has paid money to invested in our artwork) feels like their investment is cheapened by what other people have copied.

    We get calls and emails every week of angry collectors alerting us to infringing activity out there.

    This is why I mainly did the blog post. The nature of my Dad's artistic output presents both some interesting legal issues and some clear cut legal answers to others that most artists don't have.

    In fact, I once wrote a thirty page paper examining whether or not two particular copies that we found were illegal or "fair use" derivatives because of the first amendment and the right of people to make commentary on the work of others through parody. And, in the end, I could only give my legal opinion and did not arrive at a definitive answer. A true answer would only be given by a particular judge or jury.

    So, it is unclear whether your work would be something that we would allow. As you have probably seen, there are other multi-colored animals in the quarter that exist. There are always very intricate and complicated factors to examine and you have to look at them all in the context of the thousands and thousands of intellectual property cases that have been litigated before to decide whether or not you want to stop something from being in the market.

    I hope this extra bit of comment adds something to the topics that you brought up. Thanks for reading and commenting!

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  13. How do painting studios allow paint your own "Blue Dog" Events?

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    1. Hi Anon- They request permission first through our House Counsel. For details email info@georgerodrigue.com.

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  14. I loved reading this piece! Well written! :)

    jason
    pension crisis

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  15. Does Painting with a Twist have exclusive rithts to paint George Rodrique's "Blue Dog"? What about Pinot's Palette?

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    1. Hi Anon--- I'm not sure how to answer you on this. For questions regarding copyright, please contact Jacques Rodrigue directly at jacques@georgerodrigue.com.

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