The soupy IP legacy of Andy Warhol

Andy Warhol, we hardly knew you.  Then again, we knew more about you in some respects than we might have wanted to.  But on the other other hand, who knew you’d make such a mess of intellectual property concepts?

Familiarity with at least some of the general topic is assumed. Let’s start in the middle, kind of:
brillo-sneaker-warhold
What’s going on here?

Let’s put Brillo — usually the last thing you deal with after a tasty meal — aside for a moment, and start with some soup.  Campbell’s soup, that is — the most famous, and evidently most ubiquitous, subject of Andy Warhol’s pop art and, as shown at left, also, since 2015, available in a tasty variety of Converse sneakers.

Hot and a lot
Hot and a lot

Here’s some basic background from my friend Sergio Muñoz Sarmiento:

I get asked quite often if I know how Campbell’s Soup reacted to Andy Warhol’s numerous renditions of their famed soup cans. Were there copyright lawsuits? Did they settle? Were there cease and desist letters?

Myths and realities abound, but I have heard from lawyers that Campbell’s was in fact quite happy to see their product mass produced and on the walls of museums and collectors’ homes. In fact, if one considers the historical time frame of Warhol’s production, it makes sense that the period immediately after the first commercial television broadcast (early 1950s) was ripe for companies like Campbell’s Soup to gain free publicity from Warhol’s work. What better way to advertise than to see your product celebrated and talked on news casts and cultural television programming.

Well, thanks to the blog Letters of Note, we have a letter from a Campbell’s Soup executive to Warhol, expressing his admiration for Warhol’s Campbell’s Soup work. Check it out!

The Dear Rich blog ladles out some more, expanding the treatment beyond Campbell’s (though not to Brillo):

Patricia Caulfield, the photographer whose work was used as the basis of Warhol’s flower prints (above) sued in November 1966 and settled for cash and artwork. Warhol’s 1964 work, 16 Jackies, was the subject of a lawsuit brought against the Warhol Foundation in 1996 by the photographer of the original Jackie photos. That led the Foundation to sue Warhol’s insurer. Warhol was never sued over his Marilyns, which were based on a publicity still of Monroe. We’re not sure how Warhol managed the rights for his Mickey Mouse but apparently he didn’t run into the same kind of litigation in which 60’s cartoonist Dan O’Neill became embroiled. Perhaps because Dan was naughty (parental advisory), and Andy was nice? Campbell’s Soup Company didn’t litigate; they exploited the efforts of their most famous chicken-noodle fan. The company even offers an Art of Soup contest in collaboration with the Warhol Museum. . . .

So there’s your background. Now for the questions.  One thing there’s no question about is, as Ed Timberlake noted in the original Twitter conversation above, the fact that on the Warhol-to-Converse side, everything is locked down nice and businessy-like.

The thing here, however, is that while everyone knows that Andy Warhol painted soup cans (though I had not realized just how many until I began preparing this piece), it’s not so obvious that every image of a Campbell’s label that isn’t a on a can of soup is Andy Warhol’s intellectual property (i.e., his estate’s).

So, let’s take another step back.  A Wikipedia entry on “Appropriation” in art (which I highly recommend – here’s a PDF of the article as of date of this post) states as follows:

Andy Warhol faced a series of lawsuits from photographers whose work he appropriated and silk-screened. Patricia Caulfield, one such photographer, had taken a picture of flowers for a photography demonstration for a photography magazine. Warhol had covered the walls of Leo Castelli‘s New York gallery in 1964 with the silk-screened reproductions of Caulfield’s photograph. After seeing a poster of their work in a bookstore, Caulfield claimed ownership of the image and while Warhol was the author of the successful silk screens, he made a cash settlement out of court.

On the other hand, Warhol’s famous Campbell’s Soup Cans are generally held to be non-infringing, despite being clearly appropriated, because “the public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products”, according to expert trademark lawyer Jerome Gilson.

the-business-of-being-an-artist-daniel-grantAh, but it’s never that simple, is it?  (As I said, see the article — it really isn’t!)  I took a look, courtesy of Amazon, at the quotation of Gilson in Daniel Grant‘s The Business of Being an Artist, and darn it if, right there on page 182 of the paperback version of the first edition, Grant doesn’t go exactly where I was hoping he would in presenting that Gilson quote:

Lawyers hold differing opinions on these questions, and the issues are complicated by the way in which the finished artwork may be used and distributed and in what form.  An original painting, for instance, has much greater first amendment protection of free expression than a large edition of prints or images scanned onto limitless numbers of calendars or T-shirts.  Artist Andy Warhol did not seek — nor was he required to seek — permission from the Campbell’s Soup Company for his famous 1962 painting of a can of Campbell’s soup because it was a non-infringing use of a trademarked [sic] label, created by Warhol in an artistic medium and displayed in an art setting.  “The public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products.”

Freedom of commercial speech, on the other hand, is more restricted than artistic speech.  “If Warhol had put the soup can image on T-shirts or greeting cards, he would have had more of a problem in defending a trademark infringement lawsuit because they aren’t traditional artistic media,” said J. Thomas McCarthy, trademark expert at the University of San Francisco School of Law.

He added that, by virtue of the volume and distribution of the T-shirts and greeting cards, Campbell’s might have argued, “[Is] what’s really selling the product is the product name rather than the artist’s name or image?  Therefore, people might have assumed that Campbell’s authorized Warhol” to make  T-shirts and greeting cards.

Or… sneakers?

Or sneakers.  As the one-and-only lawyer from hell Fritz Clapp said in the dialogue above:


So, what’s going on here?

I have no idea.

And now it’s cleanup time — i.e., the Brillo question that started this.

Bright guy Milton Loeb
Bright guy Milton Loeb

Brillo is a “brand of” a company called Armaly Brands, which sells all kinds of sponges and cleaning stuff.  And the Brillo story is one that will warm the cockles of any IP lawyer’s heart!:

In the early 1900s, a breakthrough in home cookware was taking hold in America. . .   [A] cookware peddler and a jeweler (his brother-in-law), were working on a solution [to the problem of getting the newfangled aluminum cookware clean]. Using jeweler’s rouge, soap and fine steel wool from Germany, they found a method to scour the pots and pans when they began to blacken. The idea worked, and the peddler soon added this new product to his line of goods.

Demand for the steel wool and the cake of soap with the jeweler’s rouge rose quickly and before long, the peddler and the jeweler realized that the idea was worth patenting. They sought advice from New York attorney Milton Loeb. They lacked the money to pay for legal services, so they offered the attorney an interest in their “scouring pad” business instead. Loeb accepted the offer and in 1913 secured a patent for the product under the name Brillo® (derived from the Latin word meaning “bright.”).

The partnership formed between the peddler, the jeweler and the attorney became known as the Brillo Manufacturing Company, with headquarters and production operations in Brooklyn, New York. . . .

Brillo® went on to become one of America’s most recognizable brands, featured in modern art, songs, movies—and of course, households nationwide. In 2010 Brillo® was acquired by Armaly Brands, maker of industry leading Estracell® sponges, the choice of more than two thirds of consumer and professional buyers who prefer polyester sponges.

Milton my man!  He did well by Brillo and, evidently, by the Loebs and just about everyone else.

So, is it art?  Not my beat.  Besides, even Andy Warhol, it seems, wasn’t so clear on the question:

In black-and-white film footage from a 1964 interview, Andy Warhol stands in front of two of his stacked-box sculptures, speaking to a reporter. The boxes in the pile on the left feature the Kellogg’s logo. On the right is an eye-catching stack of Brillo boxes printed with slogans such as “3¢ OFF PACK” and “Shine-O-matic Detergent.”

As Warhol responds to the journalist’s questions in his faux-naif manner, dealer Ivan Karp stands beside him, grinning as though he and the artist were sharing an inside joke. Karp, then the assistant director of the Leo Castelli Gallery, helped Warhol get his first show, at the Stable Gallery in 1964.

“Andy,” says the interviewer, “a Canadian government spokesman said that your art could not be described as original sculpture. Would you agree with that?”

“Uhhh, yes,” Warhol says.

“Why do you agree?” asks the woman.

“Well, because it’s not original,” responds Warhol.

Our question, however, is this: Everybody talks about Campbell’s and the brand protection question that ends in some kind of acquiescene by Campbell’s — I don’t know about the sneakers part, but, hey, I don’t know about the sneakers part.

But how about Brillo?

andy-warhol-brillo-box
Warhol’s Brillo boxes: Soft soap?

Milton Loeb, according to that Times obituary two links back, remained active in running Brillo until shortly before his death in 1972.  Andy Warhol had begun painting and “sculpting” Brillo boxes about a decade earlier. Milt was an IP lawyer, and obviously knew what was going on.  There’s no indication, however, that Milt got particularly excited about any of this.  He probably recognized, as Professors Gilson and McCarthy point out, that there’s a difference between art and merchandising.  At that time, it probably seemed that whatever Warhol was doing, it was closer to the former than the latter.

“Seemed.”  It’s really not so clear at all, and all the steel wool and soap in the world isn’t going to clean up this mess in one blog post.  It’s really complicated; that last link is from a story about the scandal that arose over purported Warhol Brillo boxes exhibited in a museum that turned out to be…

Just Brillo boxes.

And were they less art, then?  From that article:

Ironically, the Brillo box that Warhol appropriated was designed in 1961 by an Abstract Expressionist painter named James Harvey (1929–65), who earned his living as a commercial artist. According to Andy Warhol (Yale University Press), a new book by critic Arthur Danto, Harvey attended Warhol’s opening at the Stable Gallery. “Harvey was stunned… realizing that he had designed the very boxes that the Stable Gallery was selling for several hundred dollars, while his boxes were worth nothing. But Harvey certainly did not consider his boxes art,” writes Danto.

Good for Danto.  More about him and his view on Brillo boxes here.

How about Brillo’s view about Warhol’s Brillo boxes?  About Converse’s Brillo sneakers?

The answer is probably out there.  But I didn’t find it.  Presumably, regarding the first question, Brillo took the cue from Campbell and let Warhol run with the Brillo-box-as-art-like-thing concept, realizing it was probably what they used to call “good advertising” that hardly did the brand any harm.

There was certainly no infringement and, in those days, no trademark dilution either.  Even dilution would probably be a stretch for the Warhol Brillo project, because he never made trademark use of the Brillo marks.  Was copyright protection available for the Brillo label?  Probably.  Was Warhol’s use “transformative” or “commentary,” or both, and perhaps a fair use?

My superficial take — abstracting from the fact that Warhol never held himself out as a “starving artist” and in fact did merchandise and commercialize whatever he could get his hands on — is that it probably was.

Converse “Brillo” sneakers, on the other hand …

Well, no one really asked me.  I’m no Milton Loeb, but certainly Brillo didn’t.

Ron Coleman

I write this blog.