Friday, April 8, 2011

Is this East Village artist a threat to the sanctity of the MTA’s intellectual property?

East Village artist (and EV Grieve commenter) VH McKenzie has created a series of oil paintings on discarded MetroCards subway cards, which she sells in her Etsy shop.

Which, apparently, didn't go over well with the MTA, who found out about it... and, in response, issued the following letter:

While we at the MTA are flattered that you recognize the value of our brand to consumers, please understand the MTA has a well-established product licensing program which markets authorized versions of such products. While we have no record of your firm requesting or being granted such authorization, we are prepared to initiate discussions with you about acquiring a license from us.

The MTA’s intellectual property is protected by applicable copyright law and trademark law. The manner in which your web site markets these items, such as your reference to New York City subway, implies involvement and/or endorsement of your business and products by the MTA.

The MTA considers its intellectual property to be a valuable asset which we protect from dilution and confusion in the marketplace. The MTA obtained and maintains its registered trademarks, copyrights and intellectual property in the public interest. It is important for the MTA to be able to communicate with the public about its services, as well as operate its established licensed products program, without unauthorized users of its intellectual property creating confusion.

Please reply to me by email or in writing to acknowledge receipt of this notice, and to indicate your intention to remove this item from Etsy and cease any sales of the item...


As she wrote on her Tumblr:

My big bad oil paintings, on the surface of discarded MetroCards subway cards, are apparently a huge threat to the sanctity of the MTA’s intellectual property. Unless, of course, I want to throw down some big cash and pay for the privilege of referencing the MTA in any way.

That ain’t gonna happen.

And she wonders if the MTA is aware of the recent Single Fare 2 show on the Lower East Side, an exhibit of some 1,300 artworks all presented on MetroCards subway cards. (Jeremiah wrote about it here.)

In any event, VH told me that she removed the "before" image of the MetroCards subway cards on her Etsy site, which showed the full gold color with the MTA logo and added a huge paragraph of legalese at the end of each listing supplied by a lawyer friend.

Anyway, I guess this is one way for the MTA to close up a $100 million budget gap — make local artists pay a licensing fee.

[Hat tip to Esquared at Nonetheless]


Ken from Ken's Kitchen said...

And she wonders if the MTA is aware of the recent Single Fare 2 show ...

Guess they are now.

VH McKenzie said...

Ah, do we think the honchos of the MTA Marketing & Adv. Dept. are regular readers of EV Grieve? Let's hope!

I wrote back to the
ass-kissing, ambitious, eager-beaver schlub, aka intern, that authored the letter and gave him the link to Single Fare. He responded by giving me his supervisor's name and email so that I could inquire "about having a license with the MTA to sell your product."

I flooded the supervisor with links to Single Fare and dozens of the other 144,000 items that appear when you google "metro card art."

His response?


Anonymous said...

This story is insane.

I can't stand the MTA as it is already. So corrupt and just getting worse and worse. And yet they have time to focus on THIS!?!?! How about the fact that I live in the East Village and will wait for at least 45 minutes or more for a train on a Saturday IF IM LUCKY, and forget going to Brooklyn. (why? because it's the weekend?)

If anything they should appreciate the fact that someone is bothering to make their image charming at all, because they are sure doing a good job of ruining it themselves.

ps. I also REALLY love that they decided to do an advertising campaign on their own trains about how "great" they are, and how they're bettering themselves all the time. Really? Obviously, they must assume their customers are blind and as stupid as they themselves are. What a good use of money MTA.

blue glass said...

tossed out metro cards are garbage.
recycling is the word of the present.
mta could better spend their time in fixing subway and bus problems rather than harassing artists and folks like billy.
give us all a break.

Anonymous said...

They are begging for graffiti war.

rsietsema said...

She's doing those dumb dickwads at the MTA a favor. Every station is carpeted with discarded metro cards, and she's picking them up and recycling them. Another example of dumb Bloombergism, trying to monetize everything. The lawyers who dreamed this up should be put to work cleaning the subways...

Marty Wombacher said...

And I thought the ICTTS judges were harsh. Sheesh!

VisuaLingual said...

Wow, ridiculous. Here, I've been recently marveling at how many artists use these discarded MetroCards to make something new.

Anonymous said...

My question is how she hoped tattling to the MTA on the Single Fare guys was going to benefit her cause. Did she not consider the possible consequence that the MTA would then go after those guys, the guys her etsy page credits as being her inspiration (i.e., the people she took the idea from in the first place)? She couldn't possibly think it would end with them saying, "Oh. Well, if those people did it then I guess it's okay if you do it, too." You don't rip somebody off, get caught doing it, then say, well I know somebody else who ripped you off too. Is there no honor among thieves?

chickenunderwear said...

This is just a cash grab by the MTA.

The Macho Man Randy Savage said...

Ohhhhhhhh yeahhhhhhhh. This is the most reeeeeediculous thing I have heard in my long and very macho lifetime.

Anonymous said...

I am sure the MTA is well aware of the Single Fare guys already. They've got staffers monitoring this stuff. It just takes a quick Internet search to find the Single Fare guys or anyone else working with discarded MetroCards. I can't believe they are giving her a hard time.

Anonymous said...

For all your complaints about the MTA (mostly ad hominem remarks anyway), trademarks are very important and part of preserving trademarks is making sure other people don't use them without your permission. If people were freely using a trademark for a long enough period of time, it could be argued that the MTA shouldn't be able to hold the trademarks they do.

Why do you think companies like Apple, Ford, Nabisco, etc all vigorously defend their brands/trademarks (besides it being their identity/intellectual property)?

Don Heller said...

Give 'em hell, VH!

Anonymous said...

Irrespective of whether or not we think the MTA had (probably) heard of Single Fare or not, it doesn't explain why she would inundate the MTA with links to Single Fare (particularly since it's perfectly plausible that they had never heard of the event). In what way could she hope her cause could benefit from her making sure they had heard of the show? At best, the MTA would draw the obvious distinction between an art show (i.e., a single event which occurred in the past) and an ongoing entrepreneurial endeavor such as forming an etsy account (a quasi-small business) with the sole purpose of selling MetroCard paintings like so much bootleg I <3 NY memorabilia. At worst, they could decide to object to the show and legally challenge any future iterations. Now, since that was (and still is) an obvious potential consequence to her decision to bring them into this (and since she admittedly took the idea from them), wouldn't it have made more sense (and been far more polite) to approach the Single Fare guys first, to gain their permission and support, rather than letting them find out about this (at best) via a blog post or (at worst) an MTA cease and desist of their own?

VH McKenzie said...

I think some clarification is in order regarding "the Single Fare guys," which some anonymous (of course) writers claim I have "ripped off."

My understanding of that first SF event is that it arose out of the act of a SINGLE art student who had run out of materials while at home sick and in need of materials upon which to complete an assignemtn; she completed said assignment on the only durable items handy for a miniature painting: a metro card.

From that simple act the concept was born and the first resulting Metro Card art show was created. So, who's zooming who?

The first Single Fare exhibit was "AN OPEN CALL TO ALL ARTISTS", according to their marketing literature. Is it possible to "rip off" the idea of the call was open to all to paint on cards?

If I'd known about the show then, I would have painted some cards and submitted them. Sadly, I only heard about the first show many months after the fact while reading art blogs online. Since I had already been painting NYC iconography (in watercolor and oils) I thought painting on the surface of a metrocard, in my own style and subject matter was, well, a cool idea. Again, from whom did I rip off what, exactly?

Oh yeah, I paint on paper, too. Did I rip off somebody by painting on paper?

So I made some paintings on metro cards and put them up on my already-existing Etsy shop. THe SF show was long gone, so where else could I go? And again, who did I "rip off?" The organizers of the show, who had clearly "ripped off" that initial student? Explain it to me, please.

You think I had to "ask permission" of the Single Fare "guys?" Ask them permission for WHAT exactly?

And as to the comment that the MTA would "draw the obvious distinction between an art show (i.e., a single event which occurred in the past) and an ongoing entrepreneurial endeavor such as forming an etsy account" --- I have to LAUGH!!!

Are you joking?

The first Single Fare event, held over several days (ie "ongoing") SOLD the artworks for $50 a piece, and the follow-up show, held after the hugely successful first, hiked the price to $100 per item. Entrepreneurial? Hmmm, mebbe so.

So where's the distinction between an "art show" and an ongoing entrepreneurial endeavor? Five hours? Five days? Five months?

How many living artists do you know exhibit their work in a "show" without the intention or hope of selling their work?

Finally, I "inundated" (really? inundated?) the MTA with links to the Single Fare exhibit? You say that doing so would jeopardize it's "future iterations" but I saw it as a defense of my own assumption that what I was doing was perfectly acceptable. So now you think the MTA is going to go after the artists who created the 2000 pieces in that show? Really. REALLY?

The SF exhibit of 2000+ paintings on Metro Cards at Sloan Fine Art Gallery was covered by no less than the NY Times and Reuters --you really think it was under the MTA's radar?????


Yet, they found my dozen and half paintings on Etsy?

Grow up. The MTA has deep pockets and can quickly shut me down because my pockets are empty and, well, perhaps others are not......


Anonymous said...

Sorry, not everybody has a google account.

And as a matter of fact, nobody accused you of ripping off Single Fare. That language was used to refer to you ripping off the MTA (i.e., you infringed on their copyright) and if you reread, the language was also used in reference to the Single Fare guys (i.e., that you, having been caught, then ratted out other people who were also guilty). My curiosity was to why you would do that, particularly given the fact that you were indebted to them for initial idea. Apparently your assumption is that the MTA would be more likely to look in the NY TImes than etsy for people infringing on their copyright. That doesn't seem like a well-founded assumption. etsy, afterall, is a widely popular site for buying and selling merchandise, the NY Times and it's blog are not. If I am looking for people who are profiting off of my officially licensed material, I will target my searches at places like craigslist, ebay, and etsy. I will not google MetroCard. Lots of news stories would slip right under that radar. That's why they found you and, from reading the various stories I've seen on this, had never heard of Single Fare (even though it received a fair amount of press this year and last year).

Now, I don't think I really need to tell you the difference between something which is ongoing (i.e., currently transpiring) and something that lasted for a week and ended a month ago. Yes, Single Fare was ongoing (however briefly) for one week in March. Your effort is currently ongoing, and your plans seem to be to have it continue to go on indefinitely. Theirs was an art show. Yours is a small business. Yes, their event was probably more profitable than your business (and it IS a business), and you have alerted the MTA to their existence. Bravo. Let's see if they have one next year.

Look, honestly, I hope you're continued to be allowed to run your business without further hassle. My issue comes from the fact that you seemed to respond in a way that couldn't possibly help your cause (from the MTA's perspective) and could only hurt the people and the idea who inspired you to start your business in the first place.

Unknown said...

As a local marketing professional and fine artist, it's to bad the MTA can't see the OPPORTUNITY here.

Atomic Kommie Comics said...

Since the "MetroCard" brand is used by most major transit systems, not just New York's MTA, how is using the name a trademark violation?
It's become generic, like asprin!
Just leave out the "MTA" acronym, and you're clear!

Moshe said...

The many comments ahead of me pretty much say it all, but it's too bad this artist isn't in a position to let the MTA take her to court. (Any lawyers out there who'd take it on pro bono?)

I'm no lawyer myself, but I'm pretty sure they'd lose, on any number of grounds. Judging from the amount of art and craft objects I've seen over the years (a little of which I own) made of recycled items with major brand names on them, there may be applicable precedents. I also doubt the MTA could prove that the artist is depending on their brand for her art's appeal and commercial value, rather than the association merely being incidental. Not to mention that using a discarded item like a Metrocard surely falls under the fair use exemption.

Gee, do you think Campbell's Soup and Coke went after Andy Warhol? Those famous paintings of the can and bottle didn't involve a mere glancing association with a brand via recycling but cited them directly and purposely. Somehow I don't think either trademark holder is regretting that now.

The MTA has better things to do, and I wish they'd earn their fat salaries and do them.