If you are an artist, I guarantee you are still reading this, and I’m guessing your jaw is probably on the floor right now. I have yet to speak to a single artist, art teacher, or art professor who has heard the details of this case and agreed with the ‘fair use’ ruling in this situation. Not one. The artists, art teachers, and art professors I know are terrified at the horrible precedent this sets for all U.S. artists. Any artist could wake up tomorrow facing unfair business competition in a market already flooded with illegal copies and derivatives of their work. Not only do artists disagree with this ruling, but teachers and art professors who have reached out to me also strongly believe this should not be considered fair use.

Artists’ Comments on the Fair Use Ruling

I posed a question in a private online art group: 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 without permission? Every artist who responded was in strong disagreement with the judge’s ruling. Here are their words, real comments from real artists who work hard to earn a living from their craft:

• "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

• "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 with a 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 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 PRINCIPLED 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

 ATTORNEYS ENCOURAGED ME TO APPEAL

Fair Use Judgment Sets Unfavorable Precedent

This ruling is harmful not just for myself and my art business, but for all artists who rely on their original creations to earn income. Our creations are our paychecks. Calling what happened in this case “fair use” means anyone could go to Google or any artist’s website, steal any or all of their images, and use them along with the artist’s name to create kits to sell for profit without permission.

Think of the serious ramifications for artists working in 2D forms like painting, drawing, and collage. These kits were being sold on an open-access website 24/7, not in a classroom with limited distribution and instruction. Jacqueline Kenneally was selling 'Michel Keck' art kits commercially for profit and advertising these kits to every visitor of her site.

Whether one kit or one million kits were sold, the artist’s market value is harmed in ways beyond just sales numbers.

The reason I appealed this case is because numerous attorneys told me the many reasons this case needed to be appealed.  I put my good faith reliance in the attorney's encouragement and advice.  I have provided all of the encouragement I received from them at the end of this document.  One of the attorneys in the original case even told Judge Ellison in court that the ruling was a 'nefarious decision'. (court record provided below).

A Dangerous Floodgate Has Opened

In the opinion of many, this skewed ruling has opened the floodgates for anyone to freely download artists' images and create kits or classes teaching derivatives for profit. This decision, if left unchallenged, sets a dangerous precedent that allows exploitation of artists’ intellectual property with impunity.

The Diminishing Value of Copyright Registration

Because of this ruling, I no longer believe artists should continue paying fees for copyright registration hoping it provides meaningful protection. The value of registration appears dubious at best.

Unequal Justice in the Courts: Corporate Protection vs. Small Creators

I am deeply curious about the consequences if I did the same thing with Disney art kits — using copyrighted images and trademarked names for profit, claiming “educational” use. Would a judge allow it? I absolutely believe I would be sued for willful copyright and trademark infringement, and rightly so.

As an artist and copyright holder, I have the legal right to decide what products bear my registered images and trademark. I was denied that opportunity.

First Amendment Rights and Free Speech

Following the ruling, a press release quoted Jacqueline Kenneally expressing relief at the decision, claiming it allowed her to resume teaching about artists worldwide with full credit. However, I have written extensively to defend myself and will continue to share facts omitted from court records.

I stand by my right to defend myself under the First Amendment. Sharing truthful information and opinions on this ruling is not disparagement.  We can't be silenced for our opinions.

Plaintiff Won't Stop Defending Rights

Despite false assertions that I have disparaged Ms. Kenneally and the courts, I only share factual, truthful information and my opinions. 

Artists, Art Teachers, and Professors Who Disagree with the Ruling

Many respected art educators and professors I know strongly disagree with this ruling. They understand the importance of protecting artists’ works, and none support the actions permitted by this judgment.

I had hoped letters from art professors opposing the ruling would be submitted to appellate judges, as I were asked to gather them and told they would be, but to the best none of this type of information was ever presented to the appellate judges. This crucial perspective was lost.

Final Thoughts

Artists pour immense effort and creativity into earning a livelihood through their original work. This ruling introduces uncertainty and risks by permitting unauthorized use of our images and trademarks for profit, sidestepping creators' rights.

Our profession is already challenging enough. The law must protect artists, not allow exploitation. This ruling is fundamentally wrong, and the artists, teachers, and professors I have spoken with unanimously agree.   The reason this case was appealed was because of the repeated advice and encouragement of legal counsel. (provided below).

If you are an artist, educator, or creative professional, know that your voice matters. This ruling affects all of us, and the fight to protect artistic integrity and fair compensation is far from over.  

The last time I checked, I live in the United States of America, and our First Amendment rights protect all of us to freedom of speech. Moreover, our own government explicitly refers to unauthorized use of creative works as intellectual property theft; if anyone takes issue with the term “theft,” they should direct their concerns to the U.S. government for labeling it as such.

all emails to be added this afternoon

Unpacking the Controversial Fair Use Ruling: Artists & Attorneys Speak Out