Kimberly B. Herman, The Daily Record Newswire
Vernacular memorial art — impromptu memorials created by friends, family and strangers in the wake of a tragedy — has become a poignant and prominent part of the American landscape.
While the art world struggles with the sheer volume of such public displays and attempts to determine whether they are actual works of art or simply shrines of sorrow, the legal world faces corresponding questions relating to copyright protection.
Are memorial creations entitled to the same legal protection as more readily defined works of art?
After the Boston Marathon bombings, nine entities filed applications to register the phrase “Boston Strong” as a trademark with the U.S. Patent and Trademark Office. To date, none has been granted, likely due to the fact that the ubiquitous phrase has morphed into the public domain in the form of billboards, T-shirts, mugs and more, all as expressions of resilience and recovery.
The authors and artists who created drawings, essays, poems, pictures and other works that make up the Boston Marathon memorial probably have a better chance for copyright protection under the law. But exactly how solid an infringement claim they would have has yet to be tested in the courts.
Mass participation art like the Marathon memorial consists of anonymous contributions. No single artist can lay a legitimate claim to the broad canvas or ownership of a copyright in the collective work of many artists. But what of the parts that make up the whole?
Suppose the city of Boston commissioned renderings of nameless drawings left on the public property where the Marathon memorial was located. Would there be a danger of copyright infringement?
It is unlikely that a creator, artistically expressing his or her grief through public mourning, would seek copyright protection. But even assuming that the work was copyright protected, it would still be an uphill battle for a contributor to prove infringement.
To be safe, the city could change or edit the renderings in various ways. Perhaps the author of a poem included a drawing with his words that the city could omit in its version. Perhaps the fonts on the city’s printed renderings could make it noticeably different from the unique handwriting of the original. Those changes might suffice.
But an author still could step forward and claim copyright infringement. A court might agree that an “ordinary observer” would consider the aesthetic appeal to be the same.
Still, the city could argue that it was complying with the copyright under the “fair use” defense in the Copyright Act of 1976: “fair use of a copyrighted work … is not infringement of copyright” if the use satisfies four factors:
• The purpose and character of the use, such as commercial versus non-profit;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used compared to the copyrighted work as a whole; and
• The effect of the use on the market value of the original work.
The defense permits artists and others to use copyrighted material in a reasonable manner without obtaining the owner’s permission.
The unfortunate truth is that as more of these tragedies unfold, so, too, will a legal precedent regarding ownership and distribution of vernacular memorial art.
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Kimberly B. Herman is a partner in the corporate department of the Boston office of Sullivan & Worcester and leader of the firm’s intellectual property group.
