Understanding Fair Use in Copyright Laws
Fair Use - Is your work "transformative?"

Cease and desist letters designed to scare artists.

There are occasions when artists use (or should I say "reuse") found materials in their artwork.  This could be the image of a cartoon character, a famous person, tin cans (like me), or even candy wrappers like Charlotte Kruk. The use of copyright-protected materials is legally protected under the concept of Fair Use. (Read more about the concept of Fair Use in previous blog entries.)

Sometimes large companies threaten artists who have used copyright-protected materials in their art by sending a Cease and Desist letter. This is what happened to artist Charlotte Kruk. Kruk-Tide-sm

Miss Charlotte makes sculptural clothing out of discarded product packaging as her artwork. (Check out her website.) Typically, the material is literally public trash that she sorts and assembles into artwork.  The photo to the right shows an amazing outfit constructed from TIDE boxes.

Some of the artwork by Miss Charlotte uses candy packaging such as in a costume titled, Snicker Nickers (below).  After working with candy packaging for several years, Miss Charlotte received a Cease and Desist letter. Very scary indeed. Kruk-snickers_nickers

Cease and Desist letters are designed to scare a person into submission. First, the letter arrived by Certified Mail, Return Receipt Requested. The letter was printed on stationery from a large N.Y. City legal office with the names of 111 lawyers on the letterhead alone.  I am not exaggerating, I counted the number of lawyers.  It is intended to intimidate the receiver from beginning to end.

The text of the letter goes on to describe an alleged legal infraction of using the candy wrappers. The lawyers for the large candy corporation define the use of the candy wrappers as unacceptable, along with numerous details. Page 2 says:

"Therefore, we request that you immediately cease designing clothing made from these wrappers and turn over to our office for destruction by August 13, 2001,  all designs using our client's candy wrappers that you have remaining in inventory."

How would you feel receiving this threatening letter and suggesting that you turn over your artwork for destruction? Most artists don't have a lawyer on retainer, a budget for legal fees, or any money at all to pay for legal defense of copyright infringement.

Ms. Charlotte was paralyzed for years.  Scared into "artist's block", literally.

Well, I am happy to say that Miss Charlotte has no less than the United States Supreme Court on her side.  Fair Use of copyright-protected material is entirely legal, even if a thousand lawyers try to intimidate the artist or maker.  Furthermore, you are not required to take any action or cease any action until a judge declares so.  

In a series of blogs, I will discuss the major factors that provide Fair Use protection for artists and makers.  But my main message is, DON'T BE INTIMIDATED!

Krukmatadorfront Eventually, Miss Charlotte got unfrozen and made a new clothing sculpture out of M & M candy wrappers (again from public trash).  It's a Matador Costume, titled "The Reign of the M & M" perhaps to take on the bull of Cease and Desist letters. 



Have you ever received a Cease and Desist letter or something similar?  It would be interesting to hear your story. Share your experiences by telling ASK Harriete.  




This post was updated on December 20, 2021