Like taking flowers from babies

July 28, 2009 5:17 PM

Albuquerque’s Georgia O’Keeffe Elementary School, opened in 1988, has come under written attack from the Georgia O'Keefe museum in Santa Fe for copyright infringement — even though the museum’s acquisition of the artist’s name came years after the school was named. E-mails from the museum warned of possible trademark infringement and suggested that fees may be required for some uses of the name. Even though the school has never used the artist's work or images, the museum believes that just using the name means that the school should give them a cut of any fund raising done to benefit the kids of the school. This isn't the first academic attack launched by the museum since taking control of the O'Keefe IP.
posted by dejah420 (61 comments total)

This is just begging for a 'precious little flower' joke.
posted by Paragon at 5:21 PM on July 28, 2009 [1 favorite]

Wow, it's a public school even.

Also, they claimed trademark infringement, not copyright infringement. The two are different things (the FPP mentions both, but the article only references trademark infringement)
posted by delmoi at 5:21 PM on July 28, 2009

Pussies.
posted by dersins at 5:22 PM on July 28, 2009 [7 favorites]

That is totally messed up.
posted by jayder at 5:27 PM on July 28, 2009

Huh. Who'd've thought the Georgia O'Keefe Museum would look like a bunch of assholes?
posted by Sys Rq at 5:27 PM on July 28, 2009 [44 favorites]

Do they intend to sue anyone actually named Georgia O'Keeffe too?


Because if they set that precedent, your days are numbered, Subway sandwich dude.
posted by JaredSeth at 5:29 PM on July 28, 2009 [1 favorite]

You can't trademark a name, period.
posted by empath at 5:30 PM on July 28, 2009

rename the school after Ilse Bing then -- she was greater than O'Keeffe as an artist and I'm sure the Germans will be thrilled
posted by matteo at 5:32 PM on July 28, 2009

Wait until the Kennedy Center finds out about the Airport and the Harvard School!
posted by Pollomacho at 5:33 PM on July 28, 2009 [4 favorites]

This pretty much guarantees I won't be going to the Georgia O'Keeffe Museum ever.

(I like Georgia O'Keeffe -- she was one of my favorites as a young art lover. I like Santa Fe, too -- I have family near there.)

I understand that there are complicated issues involved with intellectual property and trademarks and all of that, but really? Going after an elementary school? Even if they have a case, that's just bad PR.
posted by darksong at 5:34 PM on July 28, 2009 [2 favorites]

You can't trademark a name, period.

Anyone know the truth of this statement (with cite)? I don't think it's that cut and dry at all.
posted by IvoShandor at 5:36 PM on July 28, 2009

Was gonna say - people usually pay to get their names on schools. I guess it is no longer an honor to have a public educational institution named after you.

O'Keefe's museum only serves to minimize O'Keefe's stature as an American icon worthy of reverence. And such a shame, too, since there are so few women, and women artists, for us to look up to.
posted by jabberjaw at 5:37 PM on July 28, 2009

I like Georgia O'Keeffe too but this is effing ridiculous. Triply so in that according to Wikipedia O'Keeffe was an elementary school art teacher in Amarillo during some point when she was in her twenties.
posted by blucevalo at 5:38 PM on July 28, 2009 [4 favorites]

Just wait until they find out that Georgia is also the name of a state and a country!
posted by found missing at 5:43 PM on July 28, 2009

Please don't take my keifer away, Mr. Sutherland.
posted by Stonestock Relentless at 5:48 PM on July 28, 2009

Why are estates always such fucking assholes? Jesus christ, whose in charge over there? Satan?
posted by GilloD at 5:50 PM on July 28, 2009 [2 favorites]

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all? Not a few bad PR lawsuits are about simply retaining a claim. Imagine some huckster starts printing GOK t-shirts; the museum sues him for trademark infringement; huckster points to elementary school and says "they've been selling GOK t-shirts, keychains, and coffee mugs for years, and you didn't challenge them, therefore you've forfeited the right to the trademark."
posted by fatbird at 5:51 PM on July 28, 2009 [1 favorite]

Sounds like an overly ambitious, ill informed junior lawyer joined staff. What a joke and waste of time and money.
posted by haunted by Leonard Cohen at 5:51 PM on July 28, 2009

O'RLY?
posted by weapons-grade pandemonium at 5:54 PM on July 28, 2009

Anyone know the truth of this statement (with cite)? I don't think it's that cut and dry at all.

Word Mark GEORGIA O'KEEFFE
Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: works of art and pictorial art prints, namely, paintings, portraits, drawings, sketches, murals, graphic art prints, printed art representations and reproductions, lithographs and lithographic prints, mounted and unmounted posters, watercolor pictures, and books featuring visual art, sculpture, painting, art prints, graphic prints, representations and reproductions; books and informational brochures featuring drawings, namely, sketches, art reproductions drawings, and graphic prints; paintings and photographic reproductions on post cards, greeting cards, all occasion cards, calendars, daily planners, stationery, note pads, paperboard and diaries. FIRST USE: 18970600. FIRST USE IN COMMERCE: 19160600

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all?

guess so but I don't see the conflict since O'Keeffe wasn't in the business of elementary schools and the TM doesn't list that.
posted by @troy at 5:59 PM on July 28, 2009 [4 favorites]

Ah, I guess you CAN trademark your given name if it's developed a reputation, but not before.
posted by empath at 6:09 PM on July 28, 2009

Thanks @troy. My reading of the Lanham Act pretty much confirmed that the comment I was referring to was totally wrong, your good information confirmed it, thanks.
posted by IvoShandor at 6:11 PM on July 28, 2009

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all?

I'm pretty sure not. Nobody would confuse a public school with the Georgia O'Keeffe Museum.

There are boatloads of public schools in the US named after Walt Disney. Being more aggressive about your IP than the Disney Corporation is not something to shoot for.
posted by Sidhedevil at 6:12 PM on July 28, 2009 [8 favorites]

Sorry empath, not a personal shot, I the law I read basically said that if the name is primarily known as a "surname" it can't be trademarked. I also read some assorted internet ramblings that seemed to imply that the courts and trademark issuers usually side, with pretty loose standards, with those seeking trademark protection. don't really know the validity of that as I just did some cursory glancing on the intertoobz and am no lawyer.
posted by IvoShandor at 6:15 PM on July 28, 2009

You can't trademark a name, period.

Wrong.
posted by applemeat at 6:19 PM on July 28, 2009 [1 favorite]

Name trademark, copyright etc. answers here courtesy of the great Cecil Adams.

Money quote:

As an individual, you have no proprietary right to your name--no "copyright," so to speak. Names are in the public domain; you can name your kid whatever you want to. However, when it comes to naming a building, a company, or any other enterprise that smacks of commercial exploitation, we enter a very murky area of the kind so beloved by hustling lawyers.
posted by smoke at 6:24 PM on July 28, 2009

Yeah, my confusion was because the last time I looked into this, I was looking into it for a friend who was not famous, and the conclusion was that he couldn't trademark his name. If you're already famous or have a reputation for producing something, you can.
posted by empath at 6:28 PM on July 28, 2009

What fatbird said. My adnittedly limited understanding of trademark law is that trademark owners are required to bring these lawsuits even against starving orphans if they want to keep the trademark at all.

There were similar cases a while ago where Starbucks was villainized for suing a small coffee shop with a similar name (warning: John Stossel) and an order of monks for having the same name for a coffee blend. But, if I remember correctly, Starbucks wasn't being the total dick that they were made out to be.
posted by squarehead at 6:28 PM on July 28, 2009

I need to chime in as an alumni of Georgia O'Keeffe Elementary.

GO RAMS!

Or something to that effect.

The school has an interesting history. Basically city planers realized in 87, that there were a whole bunch of families with young children moving into the rapidly expanding North East heights neighborhood of Albuquerque and no elementary school nearby. It was constructed in a very short period of time and it's made entirely of trailers, set on concrete slabs. Sounds depressing? Well it sure could have been, but the trailers formed quads for each grade level with a garden in the middle. O'Keeffe's paintings were reproduced on outside poles, and each quad was named for one of her paintings. I learned a lot about art, and as a young girl found a famous female artist to be inspiring. How many schools do you know of named for an artist? How about female artist? Yeah, not a whole lot. Today I am visual artist, and while attending Georgia O'Keeffe Elementary wasn't the only reason why, I'd like to think it could inspire other young artists.
posted by fontophilic at 6:30 PM on July 28, 2009 [41 favorites]

But like I said, I'm no expert here, and I'm willing to eat my words. Also but, I'm not seeing in the "school should give them a cut" link where there's any claim that they want "a cut".
posted by squarehead at 6:32 PM on July 28, 2009

Kinda sorta similar when the Canadian Wildlife Federation was threatened with legal action by the Minnesota Wild to stop publishing their children magazine Wild.
posted by philfromhavelock at 6:40 PM on July 28, 2009

Many people (including the original poster here) misspell O'Keeffe, and few people notice. So they could simply change the name of the school to Georgia O'Keefe. But the museum people really have poisoned the well here, haven't they?
posted by weapons-grade pandemonium at 6:47 PM on July 28, 2009

A friend of mine who runs an online kid's stuff store with the name Munchkin in it was sent a cease&desist warning letter from Munchkin corp, who make kids sippy cups.

I'm wondering if the bastards also sent a letter to Steve Jackson's Munchkin game and all the other websites with munchkin in their names.

(Friend's store is way higher in google rankings than munchkin corp; I think they're after her ranking.)
posted by wenat at 6:52 PM on July 28, 2009

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all?


This has always seemed strange to me. I understand that you can abandon a trademark through inaction, but is it really the case that the only sort of action recognized by the court is a lawsuit?

Why not have the museum license the use of the trademark to the school for $1 for a term of 99 years?
posted by Richard Daly at 6:54 PM on July 28, 2009

philfromhavelock, in the ap article is the following paragraph:

A second e-mail from Lopez, in July, objected to a kindergartener's T-shirt.

The e-mail said the museum wants to be told about any use of the artist's name before products are produced. The museum will be "generous in granting permission" and will waive fees "for approved internal use." The museum may have to charge fees for commercial usage, Lopez said.

WGP - you're right. I'm embarrassed about the spelling error.
posted by dejah420 at 6:56 PM on July 28, 2009

The museum people are scum bags who only serve to shame the name and legacy of Ms. O'keeffe. Pathetic.
posted by chance at 6:58 PM on July 28, 2009 [1 favorite]

You can totally trademark a name. I looked into it after someone else registered my name as domain. I won't go into the details, but lets say while I could do it, the repercussions alone would be larger than it's worth.
posted by pwnguin at 7:28 PM on July 28, 2009

chance: "The museum people are scum bags who only serve to shame the name and legacy of Ms. O'keeffe. Pathetic."

No, really, really, these people are in all likelihood not at all scum bags but rather people who are acting in behalf of people who want to protect Ms. O'keeffe's name. Okay, those persons might be doing it for their own benefit, and the lawyers may or may not have gone too far in this particular case, but I don't buy the picture of "the museum people" as elementary-school-child-hating, legacy-of-Ms-O'Keeffe's-name-shaming worms.
posted by squarehead at 7:49 PM on July 28, 2009

What, no action against Georgia O'Keeffe Middle School in Madison?

Slackers.
posted by Floydd at 7:54 PM on July 28, 2009

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all?

I'm pretty sure not. Nobody would confuse a public school with the Georgia O'Keeffe Museum.

The issue isn't the name of the school, it's apparently the schools plan to fundraise by selling GOK branded gear. That would seem to trigger the trademark defense issue.

I understand that you can abandon a trademark through inaction, but is it really the case that the only sort of action recognized by the court is a lawsuit?

It's not that a lawsuit is required, but that a failure to defend against infringement of the mark (even if it's orphans doing it) constitutes abandonment. If the school won't pay, then a lawsuit is the logical result when then alternative is abandonment.

In other words, if they let the school do it, they have to let everyone do it.
posted by fatbird at 7:58 PM on July 28, 2009

Can't the museum protect their trademark AND avoid dickishness simultaneously by simply granting a perpetual license to the school for $1.00?
posted by ZenMasterThis at 8:13 PM on July 28, 2009 [2 favorites]

My son just graduated from Georgia O'Keeffe Middle School in Madison.

He'll be pleased to hear about this.
posted by Pogo_Fuzzybutt at 8:27 PM on July 28, 2009

Did O'Keeffe have a nemesis? Any real enemies? Was there a contemporary successful New Mexican painter whose work she absolutely hated? The school staff should research this and change its name, as indicated.
posted by Devils Rancher at 8:31 PM on July 28, 2009

Somewhere in his dark lair, Stephen Joyce is smiling, and he knows not why.
posted by Pope Guilty at 10:04 PM on July 28, 2009

Can't the museum protect their trademark AND avoid dickishness simultaneously by simply granting a perpetual license to the school for $1.00?

Yes.
posted by fshgrl at 10:08 PM on July 28, 2009

Seems like there would be a graceful out for this situation that would simultaneously protect the trademark and have beneficial PR for the museum.

If having the school sell O'Keeffe items puts the trademark at risk, then just simply ask the school to send in a token 1 dollar check for each time they hold a fundraiser and put a (TM) in small print somewhere on the shirt.

In exchange, the museum could sponsor an art class or provide art materials to the school. Could even take photos of said art class and put them up somewhere in the museum on the "Look how great O'Keeffe's legacy is" wall, thus giving warm fuzzies to everyone and probably guaranteeing future support from their visitors / customers.

The school gets needed art supplies and the museum gets something nice to feature in their newsletters, and the sacred trademark is protected till the end of days. Everyone wins, except for the lawyers.
posted by pandaharma at 10:10 PM on July 28, 2009 [1 favorite]

"fine, we'll rename the school after thomas kincade"
posted by pyramid termite at 10:23 PM on July 28, 2009 [4 favorites]

But see, the thing is, the school doesn't sell her images or copies of her work. They just named the school after her. And when they have field trips, all the kids are put in color matching t-shirts with the name of their school and the school mascot. But it's not like the kids are running around with big vaginas orchids on their chests. And they have keychains or magnets and other little give-away stuff to give out as prizes that have the name of the school on it.

The museum is being ridiculous here. Ridiculous. They are saying that because the school was named after Ms. O'Keeffe, that the museum should have architectural rights when it comes to the school because they don't like the logo of GOK. That this museum, which acquired the rights to Ms. O'Keeffe's estate long after this school was named and established, should be able to take a percentage of any sale of any product where the school uses that name.

Just like this same museum tried to force Fisk into giving them 60 million dollars worth of paintings, despite the fact that O'Keeffe herself gave them to the school, and while there may be some probate issues with Fisk considering selling some of them, none of those issues mean that the museum should get all the art without compensating Fisk for them. And the only reason that Fisk was considering selling them was because they were out of money, and the museum tried to bankrupt them...probably hoping to get the art that way.

It's absurd. They are a prime example everything wrong with private galleries that get away with the non-profit tax exemption for being called a museum.
posted by dejah420 at 11:01 PM on July 28, 2009 [4 favorites]

It's not that a lawsuit is required, but that a failure to defend against infringement of the mark (even if it's orphans doing it) constitutes abandonment.

Hmm. Not that long ago, I was very remotely connected to a case where someone was worried that they'd get into trouble by letting others use their trademark, and their lawyers told them that the "if you don't act against anyone using it, you've abandoned it" stuff was just a silly myth. So I guess it all depends on what lawyers you're using.
posted by effbot at 12:06 AM on July 29, 2009

Is this possible a case where the museum has to challenge the school legally over the trademark in order to retain the trademark at all?

You can require acceptance of a trademark without being a jerk about it. Linux is a trademarked name, and the license to use it is, I believe, something along the lines of apply for a free sublicense.

It was trademarked because some jerk registered the trademark a few years back and strted to threaten everyone using his "valuable intellectual property". The solution allows the Linux name to be protected without fucking people over.
posted by rodgerd at 12:59 AM on July 29, 2009

They should change the name to Georgia O'keeffe Museum Elementary School.
posted by ActingTheGoat at 1:12 AM on July 29, 2009 [1 favorite]

People usually pay to get their names on schools.

Not sure what the case is in NM, but in Chicago at any rate there's a statute that you can only name schools (or parks or public buildings I suppose) after dead people. (They tried to name a school in my nabe after Michael Jordan, but ended up settling for naming it for his father because of this statute.) I don't know if you have to get permission from the family or the estate. It's an interesting issue, because what if someone wants to name something for your grandmother and you don't think she would have approved? Not that this is what is going on here, this museum just seems to be looking for asshat creative ways to drum up revenue, but what rights does a person or their heirs have to this sort of thing?

It reminds me of the scene in Deep Impact where the astronauts are about to crash into the comet and the captain says, "look on the bright side. We'll all have high schools named for us."
posted by nax at 4:06 AM on July 29, 2009

This doesn't look good for the future of Anne Geddes Nursery School.
posted by Shohn at 4:59 AM on July 29, 2009

This must be why so many people hire bonehead illiterate signwriters with no understanding of apostrophes or spelling.

If it had been the Goergia OKeeffe Elementary School they'd have been fine.
posted by MuffinMan at 7:52 AM on July 29, 2009

So I guess it all depends on what lawyers you're using.

Every trademark dispute is unique in that the primary trait all of them share is that all trademark disputes depend on a number of issues, most of which have not been addressed in this thread.

The museum people are scum bags who only serve to shame the name and legacy of Ms. O'keeffe. Pathetic.

Underinformed, knee-jerk responses like this to intellectual property controversies are rather typical here on the blue. It is interesting, though, that Mefites often see things differently on the green when the protection of their claimed intellectual property rights is at issue.
posted by applemeat at 8:01 AM on July 29, 2009

In other words, if they let the school do it, they have to let everyone do it.

Presumably (and it's hard to tell from the article), the school is selling "Georgia O'Keeffe Elementary School"-branded merch, not "Georgia O'Keeffe"-branded merch.

Again, I refer you to the dozens of Walt Disney-monikered public schools in the US.
posted by Sidhedevil at 8:09 AM on July 29, 2009

Again, I refer you to the dozens of Walt Disney-monikered public schools in the US.

Well, for one thing, under a Likelihood of Confusion analysis, schools and museums share more in common than do schools and amusement parks or movies.
posted by applemeat at 8:23 AM on July 29, 2009

Why are people so douchy?
posted by serazin at 10:26 AM on July 29, 2009

"Underinformed, knee-jerk responses like this to intellectual property controversies are rather typical here on the blue. It is interesting, though, that Mefites often see things differently on the green when the protection of their claimed intellectual property rights is at issue."

10s of 1000s of users have differing opinions on contentious issue. Film at 11.
posted by Mitheral at 10:28 AM on July 29, 2009

Well, for one thing, under a Likelihood of Confusion analysis, schools and museums share more in common than do schools and amusement parks or movies.

Yes, but the purpose is entirely different as far as services. I would be surprised if they won on that basis.
posted by krinklyfig at 10:33 AM on July 29, 2009

It's old news for us here, but this smacks of Tillamook County Creamery suing people using the name Tillamook. Tillamook is both a city and a county, so half the stuff in town is named "Tillamook."
posted by fiercekitten at 12:38 PM on July 29, 2009