The third letter from The Smiling Sun

It's been three weeks since the first and second letter from mr Siegfried Christansen, copyright consultant of the OOD Foundation. But today he got back to me again. He is not prepared to drop their claim, but he is not providing me with much basis to believe his arguments. In the last letter I asked for some kind of legal document that supports his case that The Smiling Atom is not a work of parody. He did not provide that this time around either.

Dear Michael Karnerfors,

Re. Infringement of Copyright.

In follow up to our previous correspondence by e-mail the board of the Danish OOA Foundation has discussed the matter. On this basis and in follow up to my e-mail of 01/05/09 I shall inform you as follows:

All intellectual and immaterial rights to the figurative mark featuring a specific smiling sun with the wording “NUCLEAR POWER? NO THANKS” belong to the OOA Foundation, as documented in our previous letter. You have designed a logo using the most significant element of our protected logo, as your logo is drawn with exactly the same smiling face as used by the protected Smiling Sun logo. And you have, using the same font, turned the message “NUCLEAR POWER? NO THANKS” to the opposite, saying “NUCLEAR POWER? YES PLEASE”. The design used by your pro nuclear network Nuclear Power Yes Please constitutes an infringement of our copyrights rights.

Your claim, that your ‘Smiling Atom’ design just is a parody, and accordingly exempted from copyright claims, is not valid. If it had been a parody you would just have used it on a certain occasion in a specific context indicating the intention of parody. The reality is that you are using ‘The Smiling Atom’ as a logo for your campaign and as such offering it to other pro nuclear groups. As such ‘The Smiling Atom’ has been taken over by groups in various corners of the world and is displayed on their repective websites as logo for their campaign. There is no where not even the slightest hint, that the display is carried by the intention of a parody.

As your use and modification of the protected Smiling Sun logo constitutes a clear violation of the rights of the OOA Foundation, we request that you and your network Nuclear Power Yes Please:

* Immediately removes the unlawful logo from your home page and and other forms of promotion .
* Confirms to have informed regular users of your network of the infringement, requested any relevant user to remove your unlawful version from their respective websites and to stop any other possible use of the logo.
* Provides information concerning a postal address.

For the sake of good order we shall again stress, that the OOA Foundation is not objecting to your slogan “Nuclear Power? Yes Please”, not even to your making use of a “Smiling Atom” and of course not to your campaign as such. We only request you to redesign your logo, avoiding any visual similarity with the protected Smiling Sun. This means that you have to use another design of smile. You may fx.use the not protected “Smiley” and you need to use another font.

In case Nuclear Power Yes Please does not comply with the above demands, at the latest on 3rd June 2009, the OOA Foundation reserves the right to take any appropriate legal step in this matter according to Swedish and European law.

Yours sincerely,

Siegfried Christiansen
Copyright Consultant
The OOA Foundation

I read his arguments as best I could and have responded to them. Note that none of his arguments actually refer to any kind of legal documents which mean I could just ignore them all. But that would be kind of rude so I took some time responding to the arguments individually. In my opinion, none of them helped his case.

Hello again Siegfried!

It was so long since I heard from you I was afraid I had missed one of your emails. I am glad that this was not the case and that we can continue working towards a satisfactory conclusion of this.

In the email I sent you on 2009-05-01 I specifically asked you to show me any kind of legal document, such as a paragraph or legal precedent, that corroborated your argument that The Smiling Atom artwork is not a parody. I have read your latest email very carefully and I note that you have not included any such reference.

So must ask you again: what is your legal argument that The Smiling Atom artwork is not a parody?

Unless you can show any kind of legal weight behind your argument, I stand by my claim that The Smiling Atom artwork is a parody and as such considered an independent work according to Swedish copyright and with that I am entitled to use the work however I see fit. The restriction I have placed on the artwork in the form of an Creative Commons 3.0 BY-NC-SA did not need to be there and is a courtesy. Assuming The Smiling Atom is an independent work, I can use it freely. As you are surely aware, parodies all over the world millions in profit. I elected not to make any profit at all, and I'm not letting anyone else do it either, because I felt that would be a bit too much, even if I was entitled to do it. I am not even trying to cover my cost for the web hotel, the domain registration or the purchase of the fonts needed to created the artwork. And as previously mentioned I'm also linking to WISE and OOA from the download pages. As such I have already extended you a courtesy that goes well beyond what I'm obliged to do.

In this latest email you argue that because I use the artwork to "campaign" this would make the Smiling Atom artwork something other than a parody. I find this argument to be contradictory because "campaigning", that is to voice and spread a message critical of that of the original, together with the imitation is what makes a parody just that. Voicing a message and trying to gain sympathy for your standpoint by opposing someone else's standpoint is the exact reason why parodies are exempt from copyright since Freedom of Expression/Freedom of Speech when criticizing or opposing a message is considered more important than your rights as copyright owners to not have your work imitated. So if you are claiming that I am "campaigning", and that there is strong likeness to the Smiling Sun artwork, you are in effect saying I'm using the Smiling Atom artwork in such a way that it fulfills the criteria of being a parody.

In short you are trying to claim that The Smiling Atom artwork is illegal for the very reasons that make it legal.

Also in this latest email, you are arguing that because I have not explicitly stated that The Smiling Atom artwork is a parody, it would not be that. I find that argument to be invalid on account of the fact that I have never seen a parody, anywhere in the world, with the words "This is a parody" or any other statement to that effect attached to it. Being 35 years old I would like to argue that I have seen enough works of parody to conclude that explicitly tagging them as parodies is not a common or even occasional practice. I have never seen it at all. Have you ever seen something like that? Hence a work does not explicitly have to state that it is a parody to constitute such. An implicit implication is more than enough.

You are trying to argue that the implicit statement of the intention of parody is too weak, even going as far as arguing that "[there] is no where even the slightest hint" that The Smiling Atom artwork is a work of parody. I find that argument to be invalid as well because that would strike down your main claim that The Smiling Atom artwork is an infringement in the first place. If people would not recognize The Smiling Atom artwork as a imitation, that would be because it would be too dissimilar to the original, but you are claiming the exact opposite to support your claim of infringement. Second, a great majority of the people I showed The Smiling Atom artwork to before publishing it reacted in exactly the manner you would expect from someone understanding it is a parody, that is to say with amusement and recognition. Not all agreed with the message but they most certainly recognized the intent of parody. And lastly I am, as I pointed out in my first email to you on 2009-04-30, linking to The Smiling Sun and WISE websites.

All in all, I find that the implicit statement that The Smiling Atom artwork is a parody is clear enough to not be misunderstood.

You also make the claim that in order to constitute a parody the work would have to be used "on a certain occasion". I am not entirely sure what you mean by that, but assuming you mean that the work could only be used once or during a limited time, I cannot take that argument seriously either because that would mean every work of parody, like for instance movies such as "Hot Shots" would be copyright infringements if published beyond their initial screenings. Clearly this is not the case since I have the aforementioned movie as a legally purchased DVD on my living room bookshelf without Paramount Pictures or Warner Brothers trying to sue 20th Century Fox for copyright infringement of the movies "Top Gun" and "Superman" respectively.

As always Siegfried I am very willing to listen to legal arguments such as legislation and precedents. If you would show me any such document or documents that support your claim, I am more than willing to remove the artwork if you by these documents can show legal weight behind your arguments.

But so far you have not done that. You have referenced Swedish and European copyright legislation, which I recognize, but I have responded that The Smiling Atom artwork is exempt on account of being a parody and I have referenced legal documents stating that is the case. I have not seen you show me any kind of legal document that contradicts my claim of parody exemption. Do that, and I shall honor your claim, but will not honor it before I am shown you have legal weight behind your arguments.

For now, I am still rejecting your claim that The Smiling Atom artwork constitutes an illegal copyright infringement.

As such I will not remove The Smiling Atom artwork from the website.

I will also not go after other users of The Smiling Atom artwork, because even if it would constitute an illegal infringement of copyright, which I am claiming it isn't, it is not my responsibility to ask them to take it down as people are personally responsible for their own actions. It would be up to you to contact them and ask them to take down The Smiling Atom artwork, referencing their respective countries' legislation in order to put any weight behind your request.

As far as my postal address goes, I'm not in the habit of casually giving it out to email addresses I do not know for sure who is behind. If you need my address, you can find it by [instructions edited out].

with the best of regards
/Michael Karnerfors

P.S: Regarding the links you said in your last letter were not working. I have since checked them with a number of different browsers and found that they are working.

Continued in The last(?) letters from The Smiling Sun.