Our First Cease and Desist Letter

~ by Maria Benner

Well, we kind of expected this to happen sooner or later, because Scott paints portraits of beers with trademarked labels.  After painting over 400 different beers, Scott finally received his first cease and desist letter.  Lawson’s Finest Liquids from Vermont asked us to stop selling images of their flagship beer called Sip of Sunshine IPA (click on the link to see the painting).  Scott painted it because a beer art fan from NJ contacted us and offered to send a can so Scott could taste her favorite IPA and paint it.  We released the painting, and only 52 limited-edition prints on Thirsty Thursday, and received the cease and desist notice a couple weeks later.  We sent a polite response to the brewery’s owners, and immediately removed the painting from our Etsy shop.  We did explain to the owners that Scott’s art is not in direct competition with their beer, in fact, his art promotes brands, and makes beer drinkers thirstier for more beer (our customers have told us so).  Scott doesn’t ask each brewery’s permission to paint portraits of its beer, but we always contact the breweries afterwards and show them the paintings, and include a link to this blog.  Many breweries buy the original paintings, or the prints for their tap rooms, or as gifts for the brewers, or owners.  John Meier’s wife purchased the Beard Beer painting as a gift for her husband, the head brewer at Rogue Brewing.  The Trogner brothers’ father bought a painting for his sons who started Tröegs Brewing.  Several breweries not only purchased the painting, but commissioned new ones of their other beers.  Kenai Peninsula Brewing has bought every painting of their three canned beers, and Anchorage Brewing bought at least four.  Pabst contacted us and not only bought an original, but asked Scott to repaint two other paintings for them that had already sold.  Scott has painted live at more than ten breweries, and  Allagash Brewing in Maine, HooDoo Brewing in Fairbanks, Alaska and Brewery Ommegang even posted photos on their social media accounts of Scott painting in their tap rooms.  The point is, Scott’s beer art is free advertising for breweries, and also a compliment.  He doesn’t just paint any beer, only beer that’s worthy of being immortalized in oil paint.

Andy Warhol’s famous Campbell Soup can paintings come to mind, which set a precedence for artists painting portraits of trademarked logos.  I wondered how Campbell reacted to Warhol’s paintings, and found this letter online from Campbell Soup Company’s Product Marketing Manager to Andy.

Campbell Soup Company letter to Andy Warhol

In contrast, here is the e-mail we received from Lawson’s Finest Liquids.

Cease and desist letter from Lawson's Finest Liquids

They were very polite, but we were a bit upset when we read it.  Wouldn’t it have been great if Lawson’s sent us cases of beer instead, like Campbell’s offer to Andy?  We would never want to harm a brewery’s brand.  Scott’s art does quite the opposite.  Unfortunately, this particular brewery is very protective of its brand, to the point of losing out on free advertising.

What should we do with the painting now that we can’t sell it?  We don’t really want to keep it, because it reminds us of this uncomfortable confrontation.  I’m hoping that Lawson’s will offer to trade beer for it, but that’s probably a long shot.

By the way, we’re offering a 15% Valentine’s Day sale at our Etsy shop.  Enter coupon code VALENTINE2016 at checkout.

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8 thoughts on “Our First Cease and Desist Letter

  1. AbFabSkyLife

    It might be worth it to run it by a intellectual property attorney. You’re generally protected under the first amendment if 1. You’re not trying to sell beer produced by someone other than Lawson’s using their trademark, or 2. You’re not trying to convince the public that the painting was produced by Lawson’s (which you wouldn’t be if you signed it). It’s telling that the owners of the company e-mailed you directly – a “cease and desist” letter typically comes from an attorney and outlines the legal basis for their claim. Campbell’s soup wasn’t being benevolent to Andy Warhol; they simply didn’t have a case (although their sending him soup is certainly charming). In ETW Corp. v. Jireh Publishing, Inc, the agent for Tiger Woods sued an artist who profited by selling paintings of the golfer. The court ruled that a person’s likeness cannot be trademarked, and more importantly, the work contained a creative component that originated with the artist and was unique to his talent. In other words, the image was merely the raw material for the artist’s original artistic expression. The basic rule is in order to sue for infringement you have to be able to prove “injury” – and it’s unlikely that Lawson’s will be able to prove that your selling paintings with the image of one of their beer bottles (regardless of whether they contained a trademarked phrase) materially damaged their ability to profit from their product.

    Reply
  2. akblooper

    Unbelievable. Why a brewery would think your beautiful artwork is a threat to their intellectual property is beyond my comprehension. Apparently they missed the memo regarding the notion that imitation is the sincerest form of flatery.

    Honestly, I wouldn’t waste my time on them. There are too many other great breweries to showcase and who would probably be flattered to have their product immortalized by your artwork. I would send the painting to them with no strings attached. Let it be a constant reminder to them of their selfish need to censor their products.

    You do great work work, Scott. Keep on keep in’ on!

    Wade (proud owner of the original Don De Diu painting from the original ‘100 beers on the wall’ series.

    Reply
  3. Pingback: Thirsty Thursday Beer Painting #53, December 31, 2015 | Real Art Is Better!

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