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
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..
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.
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
Continued in The second letter from The Smiling Sun.