The last(?) letters from the Smiling Sun. – Nuclear Power? Yes Please

Last updated on March 1, 2013

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

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

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.