Tag Archives: The Smiling Atom

The last(?) letters from the Smiling Sun.

I actually got this a couple of weeks ago but I've been waiting for a answer to a question. I havn't gotten one so I assume that it's been answered by his silence: the OOA foundation will not be going to court over this for the time being.

Hello Michael Karnerfors,

Thank you very much for you kind and comprehensive mail of 22/05/09 concerning the matter of copyright. To keep it short, I do certainly not agree with your opinion that you are free to infringe on our copyright. According to the Berne Convention for the Protection of Literary and Artistic Works, signed by 164 countries, copyright is automatic and lasts for at least 50 years. By using the specific way af drawing the face, the most vital part of the anti nuclear Smiling Sun Logo, in your pro-nuclear logo you are certainly infringing on our copyright.

I can just recommend once again that you for the purpose of your logo are using a different way of drawing the smiling face and also are using another font. With the talents and creativity you obviously do possess, it would pose a small problem to you to make those changes. Just go ahead.

Due to other commitments I expect to refrain from further communication concerning this matter.

Kind regards

Siegfried Christiansen
Copyright Consultant
OOA Fonden

That he dragged the Berne Convention into this I found amusing because even for a non-expert like me it didn't take long to find that it does not bring him any closer to a winning argument, since the Berne Convention clearly allows exemptions from copyright for things like parody.

Hello Siegfried, and thank you for this last message.

While the Berne Convention does force signatory parties to extend an automatic 50 year copyright and does not explicitly provide exemptions for parody, such legislation is allowed by Article 9(2) of the Convention. Article 9(2) states:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

This article means that the individual signatory countries may allow legislation that exempts from the Berne Convention, provided that the above three conditions are not violated. The article is known as the "Berne three-step test" and it has been included in for instance:

  • The Agreement on Trade Related Aspects of Intellectual Property Rights, articles 13 and 30
  • The World Intellectual Property Organization Copyright Treaty, article 10
  • The European Union Copyright Directive, chapter II, article 5.
  • ...among others. For example the United States of America has such exemptions in the form of their Fair Use doctrine. Sweden, as I have mentioned, also has such exemptions and parody is one of them.

    So unless you can show that the Swedish copyright law fails the Berne three-step test, and succeed in getting the Swedish legislative body to recognize this and change Swedish copyright law to not include exemption from copyright on grounds of parody, I cannot see that the Berne Convention holds enough legal weight to compel me to alter or stop publishing The Smiling Atom artwork.

    Having thus concluded that you have not provided me with anything that shows me I am legally compelled to alter or stop publishing The Smiling Atom artwork, we are left with only your kind request for me to do so. I am sorry to have to tell you this, but I do not intend fulfill that request in the foreseeable future.

    Please understand that altering the artwork would defeat its purpose of being a counterweight and a critical voice towards the anti-nuclear power establishment, such as the OOA Foundation and everyone else that use The Smiling Sun artwork to express their opinion of opposing nuclear power. I went through an effort (and some expense) in order to get a close likeness to the original, and as such I am not willing to give up on that unless I am legally compelled to do so, or that the same effect is achieved with a substitute. I do not see that I can achieve the intended effect quite as efficiently or even at all by altering the look of The Smiling Atom artwork so much that it does no longer look like The Smiling Sun artwork.

    Since you now have stated that you do not intend communicate with me further regarding this particular matter, I will assume that you have let go of your claim and that you will not attempt any legal action towards me for continuing to publish The Smiling Atom artwork in its present form.

    With that Siegfried, I wish you and the OOA Foundation the very best of luck. You are all of course very welcome to our site (http://nuclearpoweryesplease.org) for discussions and debate. Please get in touch if you feel that there is anything we can do together regarding ventures that allow us to discuss the important topic of nuclear power, or in any other way bring the topic to our target audiences.

    with the very best of regards
    /Michael Karnerfors

    Siegfried mailed me again shortly thereafter and re-iterated that he does not agree with me. He did not say they'd go to court if I didn't take The Smiling Atom down though.

    Dear Michael,

    Just to keep the record clear. Your pronuclear logo does, from our point of view, not meet the basic qualifications for beeing a parody of the Smiling Sun logo. You have created a new pronuclear logo, which is a logo in its own right and by organisations in many countries used as such. For the purpose of this logo you have simply copied the specific drawing of a smile form our protected Smiling Sun logo. That is not a parody but, in plain words, simple - and completely unnecessary - theft and infringement on a vital part of our logo. You are strictly requested to change the design of smiling of your logo.

    As mentioned in my previous mail, we have no wish to continue this communication further. We however still reserve the right to take legal action against you and your organisation if and when this may suit appropriate.

    Kind regards

    Siegfried Christiansen
    Copyright Consultant
    OOA Fonden

    I wrote him one last time, asking for clarification...

    Hello Siegfried

    I understand that we are clearly at a difference of opinion on the matter of whether The Smiling Atom is a parody or not and that I think is about as far as we'll go in this discussion, at least for now.

    What I was assuming was that for the time being, you are not intending to take legal action even if I do continue to publish The Smiling Atom artwork in its present form. Am I right or wrong in that assumption Siegfried?

    Further more for the record: there is no "organization". Nuclear Power Yes Please is not a legal person. It's an informal network, i.e. a bunch of people communicating with each other and nothing more. There is no structure, no leadership, no economic activity or anything of the kind that would qualify Nuclear Power Yes Please as a legal person. For all intents and purposes in this particular matter, I am solely responsible for the creation and publication of The Smiling Atom artwork.

    with best regards and wishes for a splendid midsummer
    /Michael

    ...but I never got a reply. So I'm assuming their lack of wanting to talk to us is also a lack of interresting in saying "We're going to court".

    So that is the end of that I assume... for now at least.

    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.

    The second letter from The Smiling Sun

    Mr. Christiansen apparently works on May Day, or he's doing this on his spare time, as I got the second letter from him on friday May 1. It was very nice and respectful. We havn't reached consensus on the matter yet but the discussion is carrying on nicely so far.

    Dear Michael,

    Thank you very much for your comprehensive answer to my letter concerning your infringement of the Smiling Sun logo.

    I aggree that your network is operating on a completely non-commercial basis and I certainly commend you for referring to the Smiling Sun website and to the Wise Smiling Sun shop, although these links, for what ever reason, are not working on my computer.

    This said, I cannot agree with your point that your use of the Smiling Sun logo just is a parody and that the modification just serves the purpose to criticise and discuss the original logo and as such fully acceptable. The use by your network and all those who may have taken your offer and copied your version of the logo have in my view, done so with the intention of creating a friendly pro nuclear logo. To achieve this purpose you have made use of the most vital part of the protected Smilng Sun logo and accordingly violated our copyrights.

    I will of course discuss your argumentation with our board and return to you in due course.

    Best regards
    Siegfried Christiansen
    opyright consultant
    OOA Fonden

    I explained to him that I am very willing to hear his argument further, especially if he can show me any kind of legal paragraph or legal precedent that supports his claim that a work ceases to be an independent if it used for more puposes than just discussion and criticism.

    Hello again Siegfried. I hope you are having as splendid a May Day as I am and that this discussion is not causing you too much work.

    The links are not working for you? Hm, that is odd. If that is the case then I must fix them because I truly want them to be working. If you could provide me with some information as to what operating system and browser you are using, including version number of the browser, I will try to bugfix them as soon as I can.

    About the purpose of the purpose of the artwork... if I have created a work for which I have the copyright I cannot see how I would be limited in using the work in any way as I see fit. This means I have the right to distribute the work freely and grant other rights to use the work. The fact that the work may serve some additional purposes apart from that of discussion and criticism I cannot see would be a factor in this. Why would something cease to be a parody if it is used for more purposes?

    But I admit I'm not an expert on these the finer points of Swedish copytright law, so I could be wrong. Hence, if your investigation into Swedish copyright law shows that parody must be the single and only purpose of the work in order constitute a valid copyright and not be an infringement upon the rights of the original work of which the parody stems, please let me know and I shall then of course concider the matter again. I would very much apprechiate if you could point me to paragraphs or legal precedents that shows your point.

    You should then of course be aware that even if I do limit the use of the artwork to that of discussion and criticism, this does not change much. All I need to do is add the condition that the work is to be used only for this very purpose and then it can still be distributed. In fact I don't see even how today's usage of the artwork, both by me and the peope ethat have downloaded it and displayed it so far, could be anything but this. As you surely are aware, parody was granted this special status for the sake of securing freedom of expression. And this I feel is how we are using it: expressing our opinion by displaying the artwork.

    So I must stress that I cannot see there is much you can gain in trying to impose restrictions on us apart from the ones we have already imposed on ourselves. Instead you risk tarnishing OOA's image for very little gain when all we really seek is a dialogue with people on the subject of nuclear power.

    If you see it differently I am as I said above always prepared to hear your arguments. My mailbox is open for you.

    with best regards and wishes for a continued sunny May Day
    /Michael Karnerfors

    Continued in The third letter from The Smiling Sun.

    A letter from The Smiling Sun

    As most of you are no doubt aware the Smiling Atom, for which the website Nuclear Power Yes Please was created, has an ancestor: The Smiling Sun. The Smiling Sun is a registered trademark of the Danish OOA Foundation. And just a couple of hours ago, an email from their copyright consultant arrived. I am quoting it here in full (pardons if there has been any errors in transcriptions):

    30 April 2009
    Nuclear Power Yes Please
    Att. Michael Karnerfors
    S-xxxx Lund
    Sweden
     
    Dear Mr. Karnerfors,
     
    Re. Infringement of Copyright and Registered Trademark.
     
    The Danish OOA Foundation has become aware that your pro nuclear network Nuclear Power Yes Please has designed and is distributing a logo which clearly is an infringement of our copyrights and trademark rights.
     
    The OOA Foundation belongs to the Danish antinuclear movement and is the owner of all intellectual property rights, copyrights and trademark rights to the world famous antinuclear logo, in general referred to as “The Smiling Sun”. The logo was in1977  registered as a trademark in Denmark and later in Sweden and other European countries as well. These national registrations have been extended with a EU Community Trademark Registration (No 004193091), effective from 14.12.2004. The registerered logo is a figurative mark with the wording “NUCLEAR POWER?  NO THANKS”, published in the European Trademark Bulletin. For easy reference I attach a copy of the original mark as it is registered. For further information we refer to our home page www.smilingsun.org.
     
    On the home page of Nuclear Power Yes Please you are displaying a logo using significant elements of the protected logo, as your logo is drawn with exactly the same smiling face and using the same font and background colour as used by the protected Smiling Sun logo. Yet you have applied the smiling face to some kind of nucleus rather than to a sun. Moreover you have turned the message into the opposite, saying ‘Nuclear Power? Yes please’. You are displaying your variation of the logo in English, French, Swedish and Russian language versions and encouraging whoever interested to download these for use in their respective pro nuclear campaigns. This exploitation of the protected Smiling Sun logo infringes upon the copyrights and trademark rights of the OOA Foundation. 
     
    As your use and modification of the Smiling Sun 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

    ...and no later than 4 (four) days from today in writing:

    Acknowledges that your modification of the Smiling Sun is a violation of the copyrights and trademark rights belonging to the OOA Foundation.

    Confirms to have informed regular users of your network of the infringement and requested any relevant user to remove your unlawful version from their respective websites and to stop any other possible use of the logo.

    Informs the OOA Foundation since when and to which extend you have made use of the logo.

    For the sake of good order we shall stress, that the OOA Foundation is not objecting to your slogan “Nuclear Power?  Yes Please” 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.
     
    In case Nuclear Power Yes Please does not comply with the above conditions, at the latest on 4th May 2009, the OOA Foundation reserves the right to take any appropriate legal step in this matter according to Swedish and European law and possibly as well to claim compensation for damages..
     
    Yours sincerely,
     
    Siegfried Christiansen
    Copyright Consultant
    The OOA Foundation

    It turns out however that Siegfried missed out on the most important aspect of The Smiling Atom: it is a parody. As such, Swedish compyright law exempts it from copyright claims. Here is the reply I sent to Siegfried.

    Hello Siegfried!

    I understand the OOA Foundation's claims, but they have no grounds and The Smiling Atom artwork does not constitute a violation of rights.

    The reason for this is that The Smiling Atom is a parody. As a copyright engineer I am certain you are well aware that works of parody, satire and pastiche commonly are exempt from copyright claims, and the Swedish copyright law is no different.Parody and travesties are not mentioned specifically in Swedish copyright law, but both the works leading up to the law and earlier court cases clearly state that parody and travesties are to be considered independent works and thus not subject to copyright claims of the original.

    Look up the Swedish "Nytt Juridiskt Arkiv" for more information, specifically "NJA II 1961 s. 81", and "NJA 1975 s. 679".

    Further more I'd like to point out that The Smiling Atom is being made available on a strictly non-commercial license (Creative Commons 3.0 BY-NC-SA) which means that any exploitation of The Smiling Atom for profit is prohibited. We (me and my friends that are embers of the network that is Nuclear Power Yes Please) do not make any money out of this at all and we have denied suggestions that The Smiling Atom be used for such ventures. We have no intention of changing this. The only money being moved is the fee I pay the web hotel for their hosting services, and the domain name registrar.

    I would also like to point out that from all download pages we link to both WISE's web shop and The Smiling Sun's homepage. We are clearly stating that if people do not agree with our pro-nuclear message and would prefer the anti-nuclear one instead, they should see you. In effect we are advertising for OOA and you are thereby benefiting from us, not taking damage.

    So to summarize, not only are we clearly giving you credit for the original, we are linking to you and inviting people that do not agree with the message of "Nuclear Power? Yes Please!" to seek you instead. Making profit on the original is by our license strictly prohibited. And, most importantly, the work is a parody in that it is a humorous imitation that reverses the message of the original for the purpose of criticising and discussing it, and it is thus exempt from copyright claims in the better part of the world, Sweden included.

    Therefore Siegfried, I hereby I reject OOA's claims as they have no grounds in Swedish copyright law and do not damage you in any way.

    On a bit more personal note, I would like to point out that we seek no quarrel with you. In fact, if you would like to contribute to an interesting debate about the subject of Nuclear Power, we would in fact be overjoyed! You are more than welcome to register on our forums and participate in discusstions there and state your view as much as you like. There is nothing more boring and uneventful than just talking to people that agree with you. So some antagonists in the mix would liven things up a bit and we welcome you. Participating would most certainly bring even more attention to your work and I cannot how that could do anything but benefit you.

    Trying to force away the artwork however, I cannot see is beneficial for you in any way. Onlookers these day and age tend to react negatively to people trying to bully their way around, especially with vague or, in this case, non-existing claims of copyright.

    If there is anything else we can help you with, please do not hesitate to contact me on [my email address]

    with the very best regards
    /Michael Karnerfors, Lund 2009-04-30

    Continued in The second letter from The Smiling Sun.