Defending Art
Several months ago, the Scatter team attempted to raise concerns about Web2 IP/DMCA enforcement practices and the threats they pose to art and creativity in Web3. These processes have already proved disastrous for legacy platforms like YouTube, Instagram, and X. Moreover, these platforms completely surrendered the battle to the detriment of their users and creators. Platform operators in Web3 must do better to cultivate a thriving artistic scene.
Recently, the beloved Scatter collection Pixelady faced a trademark claim from McDonald's due to the use of inverse golden arches. Upon investigation, we discovered these claims originated from algorithmic corporate software used to automatically flag perceived copyright material. These flagging companies overstepped using a DMCA and went directly to trademark claims, which disallows artists from responding to protect their art in the same way DMCA enables. Platforms like OpenSea and Magic Eden removed the flagged NFTs, giving the Pixelady team no option to counterclaim or dispute.
Upon receiving word of the claim, both the Scatter and Pixelady teams naturally asked, "How did McDonald's corporate discover pixelated neochibi art in the first place?" Investigation revealed the claim came not from McDonald's directly but from an organization called Coresearch. This company is contracted by major corporations to scrape the Internet for trademark material and flag it. According to Coresearch's website, they use automation and "AI" to accomplish this task—essentially deploying bots and algorithms to take down material en masse. Allegedly, there is no human review, and major secondary marketplaces are forced to take these claims at face value. This means proprietary corporate algorithms are now governing what imagery is permitted in Web3.
The first offending Pixelady trait was a set of inverse golden arches called "Wage Meal"—a red box with a golden W on top. The second, a "Wage Cap" hat trait. The third, a pair of "McLady" eyeglasses. McDonald's is undeniably an institution of Western culture, and their logo has been parodied countless times in both legacy media and online. U.S. IP law establishes that fair use applies to trademarks when there is no potential confusion about who provides the good or service, and no confusion between comparable competing goods. No reasonable person would mistake Pixelady NFTs for McDonald's products, and the Pixelady team is clearly not selling food items (though, maybe it should).
Legal Context and Precedents
The issue at hand is not just about a single NFT collection; it's about the broader implications for artistic freedom and expression in the digital age and how automation has now enabled the mass removal of art. Several key legal cases shed light on the importance of protecting parody and transformative works under the fair use doctrine.
Rogers v. Grimaldi (1989)
In Rogers v. Grimaldi, the court established the "Rogers test" to balance trademark rights against First Amendment protections. The case involved a film titled "Ginger and Fred," which Ginger Rogers claimed infringed her trademark and right of publicity. The court held that the use of a trademark in an artistic work's title is protected unless it has no artistic relevance or explicitly misleads consumers about the source. Applying this to Pixelady's "Wage Meal" trait, the inverse golden arches are artistically relevant and serve as social commentary on consumer culture and labor practices. The usage is not explicitly misleading, as no reasonable person would think McDonald's is affiliated with a pixel art NFT collection.
Louis Vuitton Malletier v. Haute Diggity Dog (2007)
In Louis Vuitton Malletier v. Haute Diggity Dog, LLC, a company produced dog toys named "Chewy Vuiton," parodying the famous luxury brand. The court ruled that this was an obvious parody and did not infringe on Louis Vuitton's trademarks because it was unlikely to cause consumer confusion or dilute the brand's distinctiveness. Similarly, Pixelady's "Wage Meal" is a playful and critical take on McDonald's branding, transformed into a new context that comments on societal issues. The artwork is unlikely to confuse consumers into believing it is associated with McDonald's, aligning with the court's reasoning that protects parodic expression.
Campbell v. Acuff-Rose Music (1994)
The Supreme Court case Campbell v. Acuff-Rose Music, Inc. dealt with 2 Live Crew's parody of Roy Orbison's song "Oh, Pretty Woman." The Court held that a commercial parody can qualify as fair use, emphasizing the transformative nature of the work and its commentary on the original. This precedent supports the notion that even if an artwork is sold commercially—as NFTs are—it can still be protected under fair use if it adds new expression or meaning. Pixelady's artwork transforms the familiar golden arches into a critique of consumerism and labor, which is a core aspect of transformative fair use.
Mattel Inc. v. Walking Mountain Productions (2003)
In Mattel Inc. v. Walking Mountain Productions, artist Thomas Forsythe used Barbie dolls in provocative photographs to critique the objectification of women and consumer culture. The court ruled that his work was protected under fair use, highlighting the importance of artistic freedom and social commentary. This case underscores that using trademarked or copyrighted material for the purpose of criticism or commentary is protected, even when it involves recognizable brand elements. Pixelady's use of inverted golden arches fits within this framework, as it employs familiar symbols to provoke thought and discussion.
Munters Corp. v. Matsui America, Inc. (1989)
The 1989 case Munters Corp. v. Matsui America, Inc. provides relevant precedent where the court ruled that common terms and shapes, when used in distinctly different markets, do not constitute infringement. The letter "W" and a red box are generic elements that exist independently of McDonald's branding. When used in the context of digital art within the NFT space, these elements take on new meaning and do not infringe upon McDonald's trademarks, especially when there's no likelihood of consumer confusion.
The Danger of Algorithmic Enforcement
If major Web3 platforms won't defend fair use and instead give megacorporations carte blanche to remove NFTs, we must question the purpose of decentralization. The permissionless nature of Web3 was meant to free us from the cumbersome, often unfair pitfalls of doing business on Web2. However, if this vision is to become reality, teams and platforms need to be prepared to push back against outdated IP practices and automated enforcement systems that lack human oversight or due process.
Automated algorithms lack the nuance to understand context, satire, and transformative use—all essential components protected under the fair use doctrine. As seen in the cases above, courts have consistently protected artistic works that use trademarks or copyrighted material to convey a new message or critique. By allowing algorithmic takedowns without human review, platforms undermine these legal protections and stifle creativity.
Art Under Attack
Artistic freedom and the right to critique are cornerstones of a vibrant culture. The cases of Rogers v. Grimaldi, Louis Vuitton Malletier v. Haute Diggity Dog, Campbell v. Acuff-Rose Music, and Mattel Inc. v. Walking Mountain Productions all reinforce the legal protections afforded to artists who use existing symbols to create new, transformative works. It's imperative that Web3 platforms recognize and uphold these principles, ensuring that creativity is not suppressed by automated systems serving corporate interests.
The battle for fair use in art is not just a legal issue but a fight for the soul of humanity. To cultivate thriving artistic scenes, we must stand against overreaching IP and trademark enforcement that disregards the nuances of fair use and artistic expression.
These negligent attacks on artists by corporations like McDonald's damage not only the artists but the collectors of their unique art pieces. These attacks are McDonald's shooting themselves in their feet. They apparently do not like being parodied in loving ways, they apparently wish to create chilling efects on those who would include them in their art.
McDonald's corporate must end this attack on art.
It's Not Just McDonald's
Corsearch's automated takedown tools have been used to take down the work of other artists as well. In one case, Corsearch took down art which it claimed infringed on Minions by Universal Pictures and Illumination Entertainment.
Looking through more posts at the Corsearch show many frustrated people whose accounts on various sites have been taken down by Corsearch. People also note that Corsearch does not reply to those impacted. Companies like McDonald's must be the ones to make them listen and be on the side of artists and creators against wrongful takedowns.
WacDonald's
Below is a brief overview of some historical parody of the McDonald's trademarks in creative media.
Will we get an automated takedown notice for listing these?
Cat's Eye (1983), episode 48 (1985)
Bubble Bobble (1986)
City Hunter anime (1987), episode 16
Yumimi Mix (1993)
Please Save My Earth (1993)
Crayon Shin-chan
Virtua Fighter anime (1995), episode 12
Gundam Wing: Endless Waltz the Movie (1998)
Serial Experiments Lain (1998), episode 6
Detective Conan (1996), episode 276 (2002)
Sonic X (2003)
The Melancholy of Haruhi Suzumiya (2006), episode 5
Kaze no Stigma (2007)
Modern Magic Made Simple (2009)
This list is in no way exhausted. It barely even scratches the surface of protected McDonald's parody in the medium of anime alone. McDonald's has even embraced its history of being parodied in anime by releasing a WcDonald's anime ad and "WcDonald's Sauce" earlier this year.
Again, McDonald's corporate must end this attack on art. McDonald's knows that they benefit from being parodied in popular art. It is effectively free advertising for them. McDonald's has historically been the kind of company to embrace art, they should not now use automated tools to suppress artists who love them. Instead, McDonald's should be loving these artists back, showcasing their art, and uplifting them.
Scatter's mission of putting artists first is very important to us. Scatter has reached out to the McDonald's Board of Directors and will continue to make efforts to have this issue be noticed by those high up in the McDonald's corporation until it is resolved.