Tuesday, October 30, 2018

Hey, Calder Foundation: This'll Only Take 2 Minutes of Your Time

"Where are you now, Alexander?" 

I used the words "Calder-inspired" to describe the genre of my mobiles on Etsy.
The Calder Foundation claimed trademark infringement.
Etsy deactivated 44 of my listings.

Apparently, the word "CALDER" is a registered trademark of the Calder Foundation.
And the Calder Foundation doesn't appreciate others using its mark.
Even if the use indicates the inspiration another artist (like me) finds in Alexander Calder. And especially if another artist (like me) uses the term on the web to help people find contemporary mobiles in a similar style of those that Alexander Calder made.

So - even though just about every other shop that sells modern mobiles on Etsy uses the word "Calder," "Calder mobiles," and even "Not Calder" in their listing tags - I was compliant.

Within two hours of receiving the deactivation notice from Etsy, I removed any mention of Calder from my shop, except a disclaimer that reads:

"Please note: I am in NO WAY AFFILIATED with Alexander Calder or the Calder Foundation. Calder is a trademark of the Calder Foundation. All artwork found here is © 2018 Mark Leary. All Rights Reserved."

Clear enough and problem solved, right? Wrong. 

Perhaps the Calder Foundation thinks its acceptable to materially damage people who draw inspiration from its namesake? Because, although its legal representatives thanked me for removing the mention of Calder from my shop, it's been a week since that time and they still haven't withdrawn their infringement claim.

See, Etsy won't reinstate my listings - and all the favorites and saves they've accumulated - unless the Calder Foundation officially withdraws its claim.

It must be a long, difficult process to withdraw such a claim, right? Wrong. A Calder Foundation representative needs to send an email that says "We withdraw our claim," and include my shop's name. That's it. You can see how simple it is here:
https://www.etsy.com/legal/ip-withdraw.

Maybe the Calder Foundation representatives don't know how easy the process is? Unfortunately, they do. Because, if they didn't already, I've sent them a number of emails that includes everything they need to submit the withdrawal.

Have they responded since initially thanking me? Not once. Not a single time. Not at all. 

I'm frustrated on a number of levels:

  • That, if there were a problem in the first place, the legal representatives didn't contact me, but instead had all of my listings deactivated.
  • The ongoing lack of response from the Calder Foundation; when did civility die?
  • Selective enforcement of its trademark (which is, by the way, a no-no with the U.S. Patent and Trademark Office who I'll be notifying next).
  • That other shops on Etsy continue to use the terms "Calder," "Calder mobiles," and "Not Calder" in their listing tags without repercussion. They'll be found by art enthusiasts looking for this genre of mobile on Etsy, I will not.
I, of course, will continue to make mobiles. And that brings me joy. Calder was an early inspiration for me, yes, but for over 10 years I've made my own original mobiles. I'll continue to tell anybody and everybody I meet who Alexander Calder is, how amazingly creative he was, how he lived a life filled with collaborations, and how he's inspired me. 

But I'm soured on the legal counsel for the foundation that bears his name. They've acted like bullies picking on the little kid when they had the opportunity to reach out and raise their concerns humanely to someone who celebrates and educates others about Alexander Calder every chance I get. I'm still hopeful they'll make this right, so we can move on.

It'll take less than two minutes to withdraw their claim, and yet somehow over the course of an entire week, they still can't find the time to do it? Sad and disillusioning. I'm sure they do lots of good work, but - in this instance - the Calder Foundation and its Trustees and Advisors (who I will also be notifying next) should be embarrassed by the way its legal counsel has acted here.

To be continued...

[Image © 2018 Mark Leary]

Tuesday, October 23, 2018

The Day The Calder Foundation Shut Me Down Because I Described My Mobiles as "Calder-inspired"




I was looking out my window today, admiring the way the fall leaves drifted down quietly. They have this dance all their own, don't they? It's mesmerizing. The seen (leaf) and unseen (air, gravity) collaborating to create magic.

It's much the same with mobiles, isn't it? A whisper of air moving art in this never-quite-predictable, yet enchanting way. It's one of the reasons I love making and sharing my mobiles as much as I do: knowing how so many others enjoy this simplicity and ephemeral dance.

One of the fathers of the artform is Alexander Calder. A brilliant artist he was, exploring so many different creative expressions throughout his amazing lifetime. He's a genuine inspiration to me.

Of course, kinetic sculptures - art that moves - existed long before Calder spun his first so-named "mobile." But he is, as we know, associated with a particular style of kinetic sculpture. So well-associated is he with what many think of as the modern art mobile, that when people speak about "Calder-style mobiles," it conjures up a particular genre of kinetic sculptures (e.g., typically ones that are metal, abstract, colorful, and so on). 

When "Inspired By" Became a Trademark Crime 
For years, I have indicated that my mobiles are "Calder-inspired" - as in I take inspiration from the genre of kinetic sculpture that Alexander Calder is noted for being the most famous proponent. I have never claimed to be Alexander Calder (he passed when I was seven years old). Nor have I claimed that any of my work is Alexander Calder's. Nor have I made any claim, expressed or otherwise, that I am connected to, authorized by, or a representative of Alexander Calder, his artwork, or the body that continues to represent Alexander Calder's estate, legacy, and intellectual property, the Calder Foundation.

Yet that same foundation, the Calder Foundation, decided today to file a Notice of Intellectual Property Infringement against me and my site at www.etsy.com/shop/marklearymobiles

Their issue: I used the word "Calder-inspired" to describe my mobiles on Etsy, and in so doing I infringed their intellectual property: Not by my designs, not by my mobiles, but because I used the word "Calder".

As a result, all 44 listings of my 100% original artwork on my Etsy site were automatically deactivated. 

Why All Artists Should Be Concerned 
The Calder Foundation holds a variety of trademarks that all basically make the same claim across a number of classes of goods. The description for that trademark states: "The literal element of the mark consists of CALDER. The mark consists of standard characters, without claim to any particular font, style, size, or color."

In other words, using the letters "C A L D E R" in a way the Calder Foundation deems is inappropriate is - in the Calder Foundation's estimation - a trademark violation. In my case, using the term "Calder-inspired" was just such an alleged violation, and thus every listing in my entire Etsy site was deactivated.

Take a moment to think of the ramifications to artists in any medium if an organization can create trademarks as general and wide-reaching as this one. If the very act of identifying something you have created with your own hands as "inspired by xyz" can get you shut down, there's a huge problem here.

Why I'm Disappointed in the Calder Foundation 
The actions of the Calder Foundation in this instance would seem to be in stark contrast to spirit with which Calder himself lived. See, Calder was a great collaborator, drawing inspiration from and working with some of the great artistic minds of the 20th century. His life represents the best of artists working together, sharing ideas, and riffing on one another. Indeed, Calder himself took the colors and shapes of Mondrian's artwork to bring his version of kinetic sculpture into being. Did the Mondrian Foundation slap an IP infringement claim on Calder? Obviously not.

Look, in instances wherein an unaffiliated entity is attempting to represent their work as an original piece of Calder artwork, I can absolutely understand the need for an IP crackdown. Additionally, in instances whereby an unaffiliated entity is attempting to profit from an association with the Calder legacy, I also can understand the need for legal intervention. I was doing neither. 

What Does Calder Have to Do with the Mediterranean Diet 
Calder has come to be synonymous with modern mobiles and kinetic sculptures. Although many other contemporaries of Calder's, including Duchamp, Man Ray, Giacometti, Munari, Lichtenstein, Tinguely, Le Parc were making "mobiles" and kinetic sculptures, his is the name most associated with mobiles. A quick review of Google search keywords proves how dominant he is as a category definer.

So, when I say my mobiles are "Calder-inspired," it's a way of referencing a genre of kinetic sculpture; a categorical distinction rather than any claim that I'm somehow Calder or passing my work off as Calder's. Using that phrase is also a way to help people find contemporary makers of modern mobiles in that style.

To indicate a mobile is "Calder-inspired" is similar to talking about the "Mediterranean diet." When one talks about the Mediterranean diet, we immediately think of a way of eating that includes certain healthy foods. Yet we don't believe any one country in the Mediterranean has specific IP rights to those foods themselves. Greece isn't slapping IP suits on Canadians for eating more legumes and fish, right? 

So What Happened? 
As of this moment, all 44 of my original designs on Etsy are still deactivated. In the spirit of literal compliance, I removed all mention of Calder excepting a disclaimer used across my site:

"Please note: I take great inspiration from Alexander Calder. I am motivated by his love of and mastery with mobiles. I am, however, in NO WAY AFFILIATED with Alexander Calder or the Calder Foundation. All artwork found here is ©Mark Leary."

How long will it take the legal teams at Etsy and the Calder Foundation to reverse the claim and allow me to reactivate my listings? Who knows.

I'm certain it'll all get worked out and soon enough this will be a distant memory. But today, honestly, it's just sad. I've been inspired by Calder for years. It's surreal that the foundation that represents the man whose work I have advocated for, educated about, and drawn positive attention to for over a decade is now attacking me. And doing it all without any personal contact.

As I shared with the legal reps at the CF, this action does a disservice to Calder - who will now not receive his due credit for his inspiration; disappointing given - in even just one small example - how many hundreds of people I’ve introduced to his work that may have never heard of him or his work. Definitely evidence of a once-good intention gone wrong.

The legal representative of the Calder Foundation could've easily contacted me. All of my contact information is on the Etsy site. If there was a legitimate concern, they could've shared it with me and we could've worked together to resolve, quickly and in good will. Instead they chose to file a claim against me that - in the span of a nanosecond - shut down my business at the beginning of the holiday season.

It just doesn't leave a good taste or speak well of those who would attempt to elevate one at the expense of many - a position that I would guess the artist himself would be opposed to. 

Enough of this, I'm off to the studio to make another one of my (now) C@lder-inspired mobiles...

Monday, July 30, 2018

Writing Down the Bones - Hanging Art Mobile Inspired by Natalie Goldberg


As the ninth mobile in my new series, writing down the bones is inspired by the words and book of the same name by author Natalie Goldberg. 

She writes: “In the middle of the world, make one positive step. In the center of chaos, make one definitive act. Just write. Say yes, stay alive, be awake. Just write. Just write. Just write. Just write.”

No matter the medium – pen or paper or metal and wire – say yes, stay alive, be awake, and just write

write your heart, 
write your fears, 
write your love, 
write your breath, 
write your dreams,
write your joy,
write your truth. 

Just write. Just write. Just write. Just write.



How to Make a Mobile - 5 Tips for Cutting Blades


In today's video mobile-making tip, you’ll score 5 tips for cutting metal blades … without ripples, ridges, puckers, bends, or dents.

Each of these tips is easy to follow, but the key to cutting out “wrinkle-free” blades is practice, practice, practice.

Cheers and keep on making art that moves!

Got a mobile-making question?
 Feel free to shoot me a message, then keep tuned to see your questions answered here.

Sunday, July 29, 2018

Fletch - New All-Metal Mobile

“fletch"

fletch is the eighth mobile in my new all-metal series.

Did you know those feathers on old-school arrows are called “fletching”? Fletching is meant to help stabilize an arrow in flight as well as increase accuracy. Without fletching, sometimes even the straightest arrows will not hit their mark, tumbling during flight.

As I made this mobile, the idea emerged that some of life’s biggest targets – goals, intentions, desires – might need more fletching; that one set of feathers is not enough.

Perhaps, for those really important life foci, multiple sets of fletching are required for extra stability, better accuracy, and more staying power in flight. This may be especially true when your trajectory steps outside the norm, when you’re looking for more from yourself and your own flight, when outside forces challenge your progress, and when you know your intention, your way, is worthy.

The mobile’s three bottom blades represent that extra fletching while the top blade symbolizes the worthwhile target.

Interested? I am excited to share this original 1-of-1 mobile with you. Head to Etsy to grab it while it lasts and see other one-of-a-kind mobiles from this 2018 series, first come, first spun.

*25% of the profits from the series will go to Write AroundPortland, one of my favorite organizations here in Portland.