LOOK COOL ANDBE AWSOME - Fair Use, Parody and Collectibles Income

Sandberg and Dawson, looking cool and awesome
From the Baseball Card Vandals website
Vandalizing your own property is a simple, cheap way to get a laugh and no one gets hurt.  Right?  I recently stumbled onto Baseball Card Vandals a Tumblr that posts and sells witty - and usually juvenile - graffiti on sports cards as well as tshirts and other merchandise for sale around $20. The site was started by two brothers, Beau and Bryan Abbott and the content is pretty innocent.  This isn't just an internet meme though, it's a unique arts business and the legal context around is quite thick.  Selling appropriation art is legal under certain conditions.  In the Abbott brothers' case the condition is parody, an important component of freedom of speech.  

But even if the parody is legal, the threat of unnecessary lawsuits or legal pressure can dissuade artists from exercising their rights.  Sports and card companies have to allow artists to make these kinds of appropriation projects without excessive restrictions on freedom of speech.  It's all in good fun right?  Parody is protected and the courts understand that some aspects of the original work will always be included in the parody.  But what about the particulars - should the team logos also be blacked out or just the card company?  Is it fair use to leave the player's full name or should that be altered too?  Fortunately, Topps, Fleer or other card companies probably aren't going to go after $20 purchases for the original "works of art".  And the tshirts for sale at BCV are so dissimilar to any particular card company that a lawsuit would likely (hopefully) die before proceedings. 

But no matter what the law says, money complicates everything.  Richard Prince and Jeff Koons serve as historical examples of how larger profit changes the likelihood and severity of enforcement of fair use.  This isn't the first or last time this will be talked about; other examples would be the Yes Men pretending to be the WTO, Nathan Fielder's expirement with "Dumb Starbucks", when Barney was flavored with Al Qaeda messaging and countless other stories in the internet age restoke the flames of the fair use debate.  Another example is the satirical website, The Onion, which posts convincing altered images from professional sports, real names of players and teams, fake stories, etc.  

Then there is the contention and confusion around the playful use of trademarks and licenses as parody.  McDonald's, Coca-cola and even LEGO fiercely protect their brands.  Witness the various artists like Dave Tolmie who use LEGO products yet they have to refer to their material as "plastic colored brick".  Last year, I caught up with another augmented property blogger named Ryan Hill who ran the King of Crayons website until 2012.  Ryan colored and altered many children's coloring books like The Hulk, Thor and Star Wars into brand-compromising homoerotic, excessively violent or existentially charged adult situations.

"I dunno, a lot of people would like me to keep doing it. But I feel it ran its course. My 15 minutes of internet fame are over (a mention on Entertainment Weekly dot com was probably the high point). I don't wanna hump a dead dream. Then again, people seemed to enjoy the stuff, and I was never sued by Marvel or DC."

Ryan Hill, King of Crayons, March 2010

Should Ryan Hill (or the Abbott Brothers) be worried?  Hill was never selling the appropriated materials but could Marvel, DC, LucasArts and others apply legal pressure and try to shut down the site?  One argument against this legal pressure is that these kinds of sites could be considered "fan art" which actually helps hype a company's products in the form of ticket sales, comic book sales, merchandising, etc. 

Back to the issue of Baseball Card Vandals... should this fair use extend to resale of the merchandise?  In the case of BCV, the vandalized sports cards in question were always assumed to be up for resale since the company originally sold them as trading cards.  One of the major selling points for sports memorabilia is that they can be traded or resold for profit.  Besides a love of the team or player, a de facto advertising message is for card buyers is "buy now, sell later" and hopefully for a higher price.  But as the Abbott brothers note on their site, this is highly unlikely. 

"... as anyone who collected cards in the 80’s and 90’s knows, roughly 99.9% of these once sought-after collectibles are now barely worth the price of the cardboard they’re printed on. What to do then with the remnant boxes, binders and heaping mounds of these worthless, hilarious, irresistibly charming relics?"

This also brings into question whether these vandalized cards are considered works of art, which are also known to appreciate in value in very odd ways.  The IRS places art and collector cards side by side, since money earned off the sale of art and baseball cards are both considered capital asset gain under the broad category of collectibles. Like all collectibles, art has very arbitrary values based on rarity and volatile popularity.  So there's no reason that an altered baseball card couldn't be worth millions in the art world - after all stranger things have happened.  

Phew... hopefully the Abbott brothers can make some supplemental income (or even recoup their card collecting losses) and have some fun.  And hopefully just hearing about these lawsuits won't scare someone away from practicing fair use of images for leisure or profit.

Excessively strict interpretations of fair use can hinder fan art,
freedom of speech and could actually be bad for a company's public image