The following is my very lengthy response to the press release put out by the Greenburg Traurig form regarding The case is Michel Keck v. Mix Creative Learning Center, LLC, et al., case number 4:21-cv-0430, before U.S. District Judge Keith Ellison. 

Mix Creative Learning Center (Artmix) is owned by Jacqueline Kenneally

Warning if you are not someone who makes your living selling your art you probably won't read this to the end so the short of this story for those of you who are not fighting every day to protect your copyrights and trademarks you can read the short of it all here.

Those six dog images shown above are my copyrighted artworks. The are registered with the U.S. copyright office.  That picture shows part of what was inside a 'Michel Keck dog art' kit that was sold for profit on Jacqueline Kenneally's website online.  The following picture shows the rest of the context of the box that shipped out as Michel Keck Art Kits.

A shoddy, cardboard box of cheap paints, a wee bit of modge podge, a sponge brush/paintbrush, some paper scraps, & a tiny canvas board accompanied 6 images of my copyrighted dog collage works. The above two pictures are the contents of the 'Michel Keck dog art' kits that were being sold for $40 each by Jacqueline Kenneally on her Artmix website, without ever asking my permission to do so.  I am extremely easy to get a hold of, art teachers from schools around the world have easily contacted me, I would have had the ability to tell her no I am not okay with my brand being attached to that.  My permission was not asked, and my permission was not granted.

I would never allow my permission for my registered trademark Michel Keck to be attached to what I consider to be a box of junk.  Period.

The following picture shows you how the kits were sold on her Artmix website.

The two dog photos, which are derivatives of my dog collage works, were used to show others that if they bought the kit they would be showed how to create art works like Michel Keck.  Just to restate it, all of this was done without my permission and for profit.  As a copyright holder I am the only one that has the right to profit of the sale of Michel Keck art kits, unless I have given permission for someone to license my name and images.  This did not happen.  

I wholeheartedly believe that using substantially similar derivatives of my work, along with my registered trademark, to sell a product commercially causes great confusion in the marketplace.  Why would anyone that sees a product being sold with an image that is substantially similar to a style I've created and one that has my trademark attached to it, NOT think that not only authorized these sales but that I am being paid for these sales?  They wouldn't.  I would never approve my name and mark for that use but I don't get a chance to say no?  Hmmmm

Let me begin...

A question for artists: Can I take an artist’s images off their website or Google, use that artist’s copyrighted images along with the artist’s trademark or name to create an art kit /class to sell for profit and ship it out through the mail without having to ask the artist’s permission to do so?

If you are an artist and you find yourself screaming “NO!!” at your phone or computer screen right now, please keep reading because according to one judge, that above scenario has been considered fair use and any artist could easily find themselves in that same above situation.  Artists beware. 

Quite some time ago I became aware of a website that was selling Michel Keck dog art and Michel Keck cat art kits for $40 each.  I was in shock to see this because I had never granted this company permission to use my name to do so.  My nephew placed an order from Jacqueline Kenneally's Artmix website to see what these Michel Keck kits contained.  When he opened the box he found that there were 6 of my copyrighted images shoved in a box with some tiny plastic cups filled with cheap paint, a miniature plastic cup with about two tablespoons of modge-podge, a cheap paint brush, 1 sponge brush, some paper scraps with some patterns, a paper silhouette of a dog head, and some photocopied pictures of dogs eyes (similar to how I create eyes on my dog collage works).

After being made aware of the what I believed to be willful copyright and trademark infringements against my intellectual property, I reached out to one of the law firms that assisted me with previous copyright infringement matters. Their opinion was also it was copyright and trademark infringement and said they would file a lawsuit on my behalf.  Other attorneys I spoke with concurred their belief was this case was copyright and trademark infringement as well.  I gave the attorneys my permission to proceed with legal action.

I want to point out that over the years numerous art teachers in public & private art schools have contacted me to ask my permission if it would be okay to create lesson plans around my artwork styles to share with their students. (scroll to the bottom of this article to see just a few of the photos that have been sent to me by teachers over the years of their student's works created in Michel Keck style.)  In each and every one of those cases I gladly granted those school's art teachers permission to share my artworks and information and create lesson plans so they could create their own artworks using the style I created to make my art.  These art teachers were teaching children face-to-face, in a classroom setting in schools for instructional purposes only, and not for profit.  Those closest to me know that I have often stated, both publicly and privately, that teachers sharing my art with the children in their school's classrooms is one of the things I am most proud of about my art career.

It was very easy for all of those teachers to not only contact me, but to get a prompt response from me.  My phone number and my email addresses can easily be found on my websites.  One tiny search of my name and you will immediately find my websites and how to get in contact with me.   Ms. Kenneally never bothered to contact me to ask permission to use my trademarked name or my copyrighted images.  If she had asked my permission to use my trademark and my copyright images in the manner she wanted to, I would have never granted her permission to do so.

Very recently I was contacted by my attorneys to tell me that they had unfortunate news, and that the judge in my case threw my willful infringement case against Jacqueline Kenneally and Artmix out claiming she had ‘fair use’ to take my copyrighted images without my permission and to put them in a box along with my trademark name, sell it for money on her website, and ship it out to her customers through the mail.  My attorney stated the judge could very well have gotten this wrong and that I can appeal.  Two other attorneys who are well versed in this case have encouraged me to appeal this case as well.  My attorney also informed that in addition to the fair use ruling, the opposing party also requested leave to file a motion for attorney’s fees and the judge granted them permission to file that motion.  That means Jacqueline Kenneally can force me to be held legally responsible for her attorney fees of just slightly under $150,000.00.  Ouch! 

If you are an artist your jaw is probably on the floor right now. I have not yet spoken to one artist or art teacher/art professor that has heard the details of this case and agreed with a ‘fair use’ ruling in this situation.  Not one.  I truly believe that any ‘artist’ or ‘art teacher’ that feels that the above scenario should be legally considered fair use has either already profited off the sales of another artist’s images & name without permission or plans to do so in the future.  The artist's I know are terrified at what a horribly, unfavorable precedent this sets for all U.S. artists.   Any artist could wake up tomorrow morning facing unfair business competition in a market that is already flooded with illegal copies and derivatives of their works.  Not only do artists not agree with this ruling, teachers and art professors reaching out to me do not agree with this should be considered fair use.

ARTIST COMMENTS

I posed the question I started this article with in a private art group I belong to online to get honest feedback from other artists.   Every artist that has responded to date is in strong disagreement with the judge’s fair use ruling on this case.  The following are real comments from real artist's who do their best to earn a living selling their art.

• "Absolutely not. Prior to using anyone’s work or name, you must have permission, particularly if you are planning to profit from their work – then you need to pay them. If it is not yours, you cannot use it." - Marian Nixon
• Who is this judge that made this ruling?  Where do they reside so that I may mail their office to point out how their ruling is unjust?  I am so sorry this happened to you.  The judge is in the wrong as well as the people that are profiting off of your work without your consent. - Jayde Hilliard-Simpson
• "I think the judge better go back to law school. Pretty sure this isn’t legal. You can’t profit from someone else’s work legally. Just like Disney doesn’t allow people to reproduce and sell Mickey Mouse!"
• "This is exactly what we are fighting against as artists. People stealing our work, our style our years of hard work." - Lisa Johnson
• "Doubtful!"
• "Do the right thing, get permission first."
• "It is hard enough on artists as it is."
• "Whatever judge said that, has no idea about copyright law. For me art is all I can physically do.  Unless I get permission to use a friend’s photo, I take all the photos I use as reference, normally, my horses, cats, flowers, etc.  Then I create from that.  My art is copyrighted.  Yet people think it is okay to steal and resell my art. That is not kosher on any level.  Think about it, as someone taking your hard-earned paycheck, you get for being say a car mechanic, because they think they need it more. You are left with nothing.  How would you like it?  The judge should know better."
• "Using their images and names without permission? No way!" - Cheryl Andrade
• "Can we write letters to the judge?"
• "Hard pass and I find it insulting." - So M Klesen
• “I think you should start a Name and Shame campaign on social media, and reach out to a reporter who can cast a spotlight on your situation.
• "No way!"
• "That’s a very bad idea!" - Renée L. Lavoie 
• "The judge is in the wrong as well as the people that are profiting off of your work without consent."
• "Get a copyright attorney! Unreal!"
• "The judge needs to be voted out of office and REPLACED by someone who feels stealing is wrong.  omg this is such a simple thing and the legal system has complicated it. Stealing is wrong and against the law."
• "You’re being unfairly squashed by the big guy with $$$. Turns my stomach."
• "This is a miscarriage of justice. The judge is wrong."
• "No, people can’t just take other people’s artwork and make a profit by infringing"
• "Really bad judge IMO. Even in the context of actual education, (an accredited school w/real teacher), this would likely be iffy as fair use, let alone anyone who's not a real teacher, or who is selling the kits. I understand about biased judges and powerful/influential people getting away with breaking the law, but if it were me, I'd appeal. This ruling does not seem to follow the majority of fair use rulings. Maybe the judge was basing it on an outlier case like the one Richard Prince won by slightly altering a photographer's images, but even in that case, the court did not say they were all fair use; in fact it settled for an undisclosed amount. Sounds to me like the judge was just plain wrong, and I'd also be interested in reading the case if it's publicly viewable."
• "What the actual **** who paid off that judge???? I’d appeal!!!" - Casey Cheuvront
• "A judge is not an artist. They are not in our/my/your shoes. What right does anyone have to say what is fair use except the creator? The only authority that should make that decision is the artist being stolen from. The very basic thing we have been taught in school is to not copy someone else's paper or answers for a test...that is cheating and in school you would be penalized for it. What makes this any different? I'll tell you there is no difference. Copying is cheating and stealing. Stealing is wrong...OMG this is in every culture in the world. Lastly the legal system was set up to protect people like me (and myself) as a MORAL and PRICIPALED guideline for HOW to BEHAVE in society. It was not set up for people to use as a loophole to get away with shit and hurt other people who are actually working hard to earn a living. If I park my car in the street just because it is out in the open does not give anyone the right to take it...that is stealing and for me some things are black and white when it comes to this." - Liza Lambertini
• I would completely understand fair use in a teaching capacity where zero sales of the artwork produced by the students are involved. But… They are making money off of these stolen artwork kits, correct? And are they an accredited teaching facility? Is it non-profit? It sure doesn't look like it!
  This worries me greatly because of those fly by night paint and sip parties.  IMO, these so-called legal experts and that judge need a refresher course. https://www.copyright.gov/fair-use/ - Cheryl Andrade

 I realize that some of you that may be reading this right now are not sure what constitutes copyright infringement or fair use.  Below I’ll provide some information that I feel will help shed some light on both of these topics and also help explain why so many artists and art teachers are disturbed by a fair use ruling in this case.

 The Fair Use provisions of the Copyright Act allow an individual to copy and use copyrighted material for specific purposes — including criticism, comment, news reporting, teaching, scholarship, or research — that serve the public interest as determined by four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

I wholehearted believe the four factors that determine 'fair use' weigh in favor of my business and not the favor of Ms. Kenneally's company.  While the fair use statute lists 'teaching' as a purpose for fair use, I only seem to see that coupled with for 'not for profit' purposes.  

• 1) Purpose and Character of the Use.: Commercial or Not For Profit? Jacqueline Kenneally was selling ‘Michel Keck’ art kits for commercial purposes.  The school teachers I've given permission to use my copyrights and trademark for Michel Keck classes have always done so in not for profit situations.   Ms. Kenneally's 'Michel Keck' kits were sold on a website that was accessible by anyone 24/7 - 365.   

*taken from the Columbia University website https://copyright.columbia.edu/basics/fair-use.html

• 2) Creative or Factual.  Most argue that because copyright laws do not protect facts and data, but protect creative works, that it is difficult for a fair use ruling to be applied when the work in question is creative.  Most artists works are creative and not factual. 

• 3) Amount and Substantiality: My exact images were included in the kit. So the amount of my work used is 100%.  According to the copyright office using the 'heart of the work' is considered less likely to be fair. (https://copyright.psu.edu/copyright-basics/fair-use/)  

• 4) Potential Market Value:  If other's are allowed to use an artist's copyrighted images and trademarks, for their own profit and without the artist's consent, (under the guise of 'educational purposes'), then what happens to the artist's potential market value to teach their own art classes of their own works? If tomorrow I find 10 companies now doing what Ms. Kenneally is doing because it is considered fair use please explain how that does not harm my potential market value of selling my own art kits?

-----DERIVATIVES 

With the eruption of all of these paint and sip parties, and for profit art class centers opening now everywhere, anothe rhuge can of worms have been opened for U.S. artists.  These derivatives too also weigh in heavily as to just how damaging this is to the artist's potential market value.   When these kits and classes are sold, wanna-be artists believe it is okay to also profit from the sale of the creator's images and name.  Not one artist, art teacher or art professor I know agrees with this fair use ruling. Not one. 

FAIR USE JUDGMENT SETS UNFAVORABLE PRECEDENT

A fair use judgement in this case is harmful not just for myself and my art business but for all other artists out there that rely on their original creations to earn their income.  Our creations are our paychecks!  Calling what happened in this case fair use means that I can go to Google or to any artist’s website steal any or all of their images and use them along with the artist’s name to create art kits to sell for profit on my own website without ever asking the artist’s permission to do so.  Think of the serious ramifications that would have on all artists, especially those that work in the form of 2-d artworks such as paintings, drawings and collage work.  Think about it.

I’ve worked as a full-time, professional artist since 2003 and I believe I have enjoyed the level of success that I have in large part simply because my artistic stylings stand out as very unique & distinctively different.  By saying it is fair use for someone to profit off of showing other people how to duplicate our artworks is just plain wrong.  Again these kits were being sold on a website that anyone could access 24/7, this is not the situation of a public school teacher sitting with her students face-to-face and teaching them about me and an artist and how I create my art.  Jacqueline Kenneally's 'Michel Keck' art kits were sold commercially for profit and the kits were advertised to each and every website visitor that came to that site, regardless of whether they purchased or not.  Period. Whether 1 kit had been sold or 1 million kits had been sold, it does not matter to the artist, our market value is harmed in the other ways I've mentioned above and NOT only by 'number of sales'.  

TWO LEVELS OF COPYRIGHT PROTECTION:

I believe that some reading this article may not understand that there are two different levels of copyright protection you can receive as an artist depending on whether or not you register your art with the U.S. copyright office.

As artists, if we are blessed enough to be able to afford the fees to do so, we pay the government a lot of money to ‘register’ our copyrights and trademarks with the US copyright office and USPTO.   We do this because we are supposed to be awarded special legal protection up and above just the standard copyright protection all creators receive at the very moment they create a work of art.

I have invested thousands upon thousands of dollars with the US government to register my works and my legal name so I could protect myself from this exact type of thing from being able to happen to me.  Right now, I can’t help to think what an incredible waste of my money registering my works has been.  I know more and more artists are starting to share this sentiment, and it is the rulings like this that have us sour to pay for protection we feel we never receive.

AWARDS OF STATUTORY DAMAGES:

*the following is taken from the website nolo.com (legal-encyclopedia)

“In many copyright cases, both actual damages and profits are difficult to prove.  How do you really know how many t-shirts you would have sold, or how much money you’ve lost, as a result of someone’s infringement?  At best, the numbers are murky.

For that reason, the Copyright Act, provides a third category, known as statutory damages --- that is, specific monetary damages set by law.  However, only a person who is registered a work with the U.S. copyright office before the infringement (or within 3 months of publication) my receive statutory damages. 

Such a plaintiff in an infringement action may opt for either actual damages (and the infringer’s profits, if appropriate) or statutory damages, but not both.   It is often said that copyright plaintiffs "elect their remedy.”

Statutory damages are explained in 17 U.S.C 504c. For infringements that cannot clearly be proven as either innocent or willful, statutory damages may be from $750 to $30,000.00 per infringement.  The exact amount depends on the seriousness of the infringing act and the financial worth of the infringer.

On the other hand, an innocent infringer may have to pay as little as $200, while an intentional infringer may have to pay as much as $150,000 for a single infringement of one work.

In short, statutory damages, provide a clearly defined remedy for victims of infringement without the murkiness and uncertainty of the first two categories of damages.

The basics of the case were

• Kenneally went online and downloaded my copyrighted images without my permission to be put into art kits and sold without my permission for profit. Ms. Kenneally could have easily contacted me via phone or email to ask my permission but she did not.  Art teachers around the world have easily contacted me to ask my permission to create art classes to teach my styles to the students in their classrooms.
• Kenneally used my trademark – Michel Keck – without my permission.
• Kenneally did not use my images and name in purely not-for-profit instructional purposes with children.  Ms. Kenneally charged a fee to profit off the sale of these ‘art kits’ which were sold to anyone who came to her website to purchase.
• Kenneally shipped my copyrighted images and trademark through the mail in art kits that did not include any statements or warnings in the kit to the end user that creating derivatives of another artists works for sale purposes might infringe on the original creators rights.

It is my opinion that because of this very skewed ruling of fair use in this case, now literally anyone can pop onto Google or any artist’s website, download any of their images without ever asking the artist’s permission and create art kits/classes to teach anyone how to make derivatives of an artist’s work and sell those kits for their own personal profit.

With a fair use decision on the facts of this case, I do not believe there is any reason at all that any artist should every pay another penny to the U.S. government to register copyrights on their works in the hopes that they will be protected by statutory damages.  None.

I am very curious to know what would happen to me personally if I would wake up tomorrow and do the exact same thing that happened to me in this case.  Let’s say I started selling art kits from my website with the copyrighted images and trademark names of other artists for my own profit. Do you think I would be able to? Do you think a judge would rule ‘fair use’?  I absolutely believe that I would be sued for willful copyright and trademark infringement (and rightfully so).  Hmmmm.

It is my legal right as an artist and copyright holder to choose what products my registered images and trademark name get attached to.  Period.

After the fair use ruling was issued by the judge a press release was put out by Jacqueline Kenneally’s firm, Greenberg Traurig, in which Kenneally was quoted as saying the following…

"I am so grateful to Greenberg Traurig Shareholders Roland Garcia and Mark Chretien for all of their help, knowledge, and kindness," said Jacqueline Kenneally, owner of Mix Creative. "This result is an enormous relief for ArtMix and me, as well as other art teachers and artists everywhere. Thanks to their good work, I can resume teaching my students about artists from around the world, continuing to give them full credit for their inspiration with more joy again after this nearly two-year-long journey."

Greenberg Traurig's full press release can be read at the following link

https://www.lelezard.com/en/news-20716765.html?fbclid=IwAR2kt0ShXUSUL9wnSmZIOB__gKGoVRxZ2dgmVSp_h149rmu3-EUbYqs2F1A

I would like everyone reading this article to know that I have many friends who have dedicated their lives to working as art teachers in the public school system. When I shared with them Jacqueline Kenneally’s comments from the press release her attorneys released, each and every one of them said they did not agree with her.  

A fair use ruling in this case is not an enormous relief for artists and art teachers everywhere.  Every artist and art teacher that I’ve personally spoke with this about this fair use ruling, is extremely fearful of what this type of ruling means for every artist.  Now, any artist can fall prey to this exact same type of situation happening to them and have no legal recourse. This is a shame. 

Artists work extremely hard to earn a living through the creation and sale of their artworks.  To see a judge’s ruling that anyone is capable of using our copyrighted images and trademarks without our permission to sell for profit on their websites under the guise of ‘educational use’ is an extreme worry to all of I’ve spoken with.  An artist’s job is difficult enough without having the added pressures knowing that the law is not on our side, but on the side of those who use our intellectual property without our permission to do so.  Lest we forget, the artist has the additional stress that they can also be legally liable for paying the legal fees of the person/entity that profited off their registered copyrights. 

In my opinion, and the opinion of many other hard-working artists and art teachers, the judge in this case got this ruling wrong.  Artists beware.

MICHEL KECK ART IN THE TEACHER'S CLASSROOM

Included below are some of the photographs that have been sent to me over the years by art teachers who have asked my permission to create lesson plans to be taught face-to-face with their students for instructional purposes only and not for profit.  It should be noted that each of the teachers reached out to me for permission to do so and I readily granted it to them.  Anyone who is close to me knows that I have privately and publicly spoken about how teachers reaching out to me to teach and inspire their children in their classrooms is one of the things I am most proud of as an artist.  These teachers truly instruct children on my style of art, how to create in the style I created, and they do so in face-to-face classroom settings in their schools for instructional purposes only and NOT for profit.  I have always gladly granted my permission for these purposes. 

I do not and will not give anyone permission to use my copyrighted images and my registered trademark to create any product to be sold for profit, on websites, at farmer's markets, fairs, etc. Period. 

the artworks below are by Sackville School Students in the UK creating artwork based on the styles of Michel Keck dog art collages 

the photo below was sent to me by Trudy Taylor a teacher who had reached out to me for permission to share my artwork with her students to inspire them to create dog art collages in Michel Keck style

the photos below are artworks created by Mr. Vic Hazeldine (UK) from lesson plan to teach collage style of Michel Keck 

the artworks below were created by Bronwyn Lewis (australia) students creations based on their interpretations of the Michel Keck collage style

The last photo I would like to share is a screenshot that was taken by the wayback machine website.  It is an archive website that captures pages of websites from their inception to date on various dates.  This type of a site is helpful in case for some reason information is taken down from a website, or websites are removed all together and you need to know what their content was.

The screenshot I am sharing above is a screen capture provided by the wayback machine website that was taken in December 2018.  This particular screenshot shows two points that should be discussed on behalf of my case.

1. Paint and wine adult parties, as long as many other adult kits and classes, were available through the Artmix website and studio as you can see from the screenshot above.  
2. Notably, Jacqueline Kenneally utilizes a copyright disclaimer on her own website: “© Artmix Creative Learning center. All Rights Reserved.” – indicating that Defendant understands the importance of copyright protection. 

My websites clearly have copyright disclaimers and my name shows the registered trademark.

Saying you steal an artist's images from Google instead of an artist's website does not protect you against copyright / trademark infringement. 

There is an amazing illustrator by the name of Marloes Devries that wrote an absolutely brilliant article on copyright infringement that is a must read! 

https://marloesdevries.com/en/blog/copyright-using-images-found-online/

 ©Michel Keck. All Rights Reserved.