A shot of Old School’s Kelly Mark fake via Instagram user @richiethaddeus. (Credit: Instagram)
Turns out Yelp isn’t only useful as a go-to website for dining destination consensus. For Kelly Mark, it’s an effective way to pressure a restaurant to remove its unauthorized copy of an artwork.
Last August, the Canadian artist served notice to the owners of Old School, a Toronto restaurant, demanding the immediate removal and destruction of a neon sign that bears a striking resemblance to her 2006 work, “I Called Shotgun Infinity When I Was Twelve”. The neon copy is exactly the same in text, layout, and color. Only the font and size of the piece differs.
The established artist is collected by the Art Gallery of Ontario and National Gallery of Canada, and has a touring solo show now at Ikon Gallery in Birmingham, UK. Her ongoing series of neon works are well-known, and she became aware of the restaurant’s appropriation after coming across images via Instagram and Pinterest with her name being mentioned in comments by fans. Further, she discovered that another neon sign hanging in the restaurant — a pig with wings — bore close resemblance to a work by Daniel A. Bruce, a New York-based artist represented by Miami’s Dean Project.
Bluenotes, a cheap and cheerful Canadian “lifestyle” clothing brand, is now selling a graphic “boyfriend” t-shirt appropriating the work. (Credit: Bluenotes)
When the incident was first reported in the Toronto Star, Old School’s partners, Brad Moore and Ian Kapitan had yet to respond to the written notice, delivered by her lawyer’s firm. When the Star’s Murray Whyte followed up directly with Moore, he responded via email that he’d be “attending to (the complaints at the fullest extent as soon as I am able,” but then concluded that “both of these signs were made from scratch, both relating directly to our Old School story. No has has (sic) stolen anything thank you.”
Most interpretations of the law would dispute Moore’s conclusions. If Old School reproduced the sign in a different medium or even neon color, Mark wouldn’t have a case. Copyright doesn’t also cover “short phrases”. But because the restaurant made absolutely no adjustments or changes to their fake, Mark is able to argue that they are infringing on the copyright of the artwork in itself: the red neon, the phrase, the use of all caps, even the line breaks. And, as noted in the Star story, since two of the three editions for the real work were sold to collectors, Mark and her dealer, Diaz Contemporary, have ever right control who they sell their work to, because it affects its value. When a copy of your art shows up in a restaurant, it suggests that its value reflects that of what is typically hung in bars. This isn’t a $30 artwork.
Six months has passed, and nothing has happened. Since then, Old School’s neon fakes continue to proliferate via social media channels. This month, Mark discovered that Bluenotes, a cheap and cheerful Canadian “lifestyle” clothing brand, was now selling a graphic “boyfriend” t-shirt appropriating the work. Additionally, a version of the text that altered the year, “I Called Shotgun Infinity When I Was Thirteen” emerged on Etsy. “[Old School] refuse to take it down, they refuse to apologize, they refuse to pay legal fees,” stated Mark in a public Facebook update posted on Sunday. According to Mark, Old School’s lawyers refuse to settle, and haven’t even provided a defence. “They keep stalling and stalling and won’t take the piece down,” says Mark, who acknowledged she had avoided discussing the matter publicly until the negotiations broke down. And as the uncredited work continues to proliferate via social media channels, its frequent appearance creates a virtual game of Whack-A-Mole, where each time the artist resolves a case of copyright violation, another one pops up. The copies by Bluenotes and Etsy also create the false impression that Marks had nothing to do with the popularity of this sentiment.
Screen shot of Old School’s Yelp page.
Over the last couple of days, a handful of frustrated friends and fans took action, by trolling Old School-tagged Instagram images featuring the work and leaving comments on its Yelp page. (The restaurant currently rates at three stars on Yelp, but that number may decline.)
On a picture of the sign with a food pic of a plate of Chicken Waffles, artist Jen Leis wrote “YUM! WAFFLES, CAESARS, STOLEN ART!” and used the hashtags #payartists #kellymarkisanartist #oldschoolisaplagiarist. At the time of this writing, their Yelp page has accrued four one star ratings in less than two days. “I will not support a business that thinks it can get away with stealing art and refusing to do anything to rectify the situation,” writes Bailey M. “You should be ashamed of yourself.”
It seems the ratings have had their intended effect. Late yesterday, Mark announced she was “working on a settlement this very minute.” We have not been able to reach Mark, and efforts to reach her via her gallerist Benjamin Diaz were unsuccessful.
Correction: January 27, 2016
An earlier version of this article used a misleading headline “Artist Uses Yelp to Shame Plagiarizing Restaurant and Wins”. Multiple artists, not Mark, used Yelp to shame the Toronto restaurant Old School and the outcome of this action has not yet been determined.
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