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...

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