As a magazine publisher, we think about stuff like trademark, copyright and intellectual property a little more than most. When Courtney Holmes submitted the “little tree” concept that would eventually become our December/January 2013 cover, we loved it right away:
But we also thought there would be some sort of trademark held over the iconic air freshener. Checking into it, on their website we found a clear and valid explanation for why you can’t use the shape of the air freshener in just about anything.
But then we saw this:
Then again, lawyers make enough money as it is. If you really want to use one of our trademarks, why not ask us first? We have often said yes. Just ask the people behind many of the movies, TV shows and advertising campaigns that have featured our brands.
So we asked whether Courtney’s take on their air freshener smells (things like two-stroke exhaust, fresh bannock, woodstove etc.) could appear on the cover of our magazine in a piece of artwork that borrowed their product image. They agreed, with two reasonable demands:
1. We note in small type the image was used with permission
2. We mail them a copy or two
Though we never asked why they said yes, I can only assume they saw no harm (and probably actually saw value) in having their product featured in a fun, humorous fashion. Through this process, we also found a way to let an artist create while respecting corporate interests.
Things went differently for Nick MacIntosh. A talented painter, Nick’s work is often inspired by scenes and subjects in and around YK. I liked this particular piece so much it became our February/March 2013 cover shortly after I stumbled across it on Facebook:
More recently, Nick painted an image of mice sitting on chairs, eating cheese at the Wildcat with the words “The Wildcat Cafe” near the neck line, and “The Wildcat, where you don’t mouse around” on the back.
Along with smiles to people’s faces, the shirt brought a cease and desist notice from the City over the artist’s infringement on its trademark over the building name.
This decision, along with the seizure of the shirts for possible destruction, is hard to understand. The painting is clearly intended as a cutesy joke, not an inference to a rat-infested log cabin. And in case the image isn’t clear enough, he added the reference to – tee hee – not “mousing” around.
Through this shirt, Nick has arguably created a great souvenir of Yellowknife’s most-popular tourist attraction in an environment where, it’s worth noting, no competing souvenir option currently exists.
Should he have talked to the City before creating his shirts? Yes. Should they be confiscated and possibly destroyed? No. More to the point, can Nick be excused for innocently creating these shirts without knowing he was in violation of the City’s trademark of the name? Absolutely.
Wildcat trademark hard to find
The first page of a Google search for “city of yellowknife wildcat café trademark” reveals exactly one obscure reference from an economic development section on the City’s website with no usage guidelines. And have you ever seen the words Wildcat Café with a TM beside them? I haven’t.
What’s more disturbing is this is the second heavy-handed bureaucratic reaction to a creative act during this short thing we call summer in YK.
The first involved the Government of the Northwest Territories threatening legal action toward hip-hop artist Godson if he didn’t remove his most recent video from the internet after inappropriately using a GNWT logo. He then offered to blur out the logo, but this was deemed unacceptable.
Along with making our city look like some sort of surreal autocratic carnival where we quickly use steel-toed bureaucratic boots to firmly crush artistic ants, so to speak, it also seems unfair. Surely the first time the MacIntosh and Godson incidents happen, when we have a problem where we didn’t know there was one, the two sides can sit down and come to an agreement.
Make the usage policy clear
If policing things like the use of the Wildcat name and the depiction of logos from divisions within territorial government departments by local artists is a priority (which would be disturbing, but hey), let’s broadcast the usage policy clearly by talking openly to the media when the issue comes up. As I said, The Little Tree people had clear guidelines on their website and we followed them.
The broader question is whether we want to attract and retain artists and generally creative people in our community. YK’s surplus of solitude and free time make for a great environment to do creative work, but our small size paired with a high cost of living also make it nearly impossible to survive as a full-time artist.
Both MacIntosh and Godson passionately pursue their art while working at day jobs and also having kids. I’d say we want more people like them in YK. If that’s true, destroying innocent, entertaining t-shirts and scrubbing the internet clean of a clearly satirical music video are steps in the wrong direction.