by Alexis Swanzy and Nicholas Roide
The works of Vincent Van Gogh are sweeping across major cities in the United States and have come to rest in Dallas, Texas. Digital exhibits featuring projected animations of Van Gogh’s most famous works have enticed art consumers and dilettantes alike, who are flocking to these experiences in droves. But the proliferating wave of multiple, vastly different Van Gogh exhibits has left many consumers in disarray and confusion when purchasing tickets. This article provides an overview of the consumer confusion surrounding the Van Gogh exhibits and endeavors to address associated questions involving intellectual property (“IP”) in order to highlight the imperative importance of IP protection and portfolio management.
There are currently at least five different corporate entities operating some type of Van Gogh immersive digital exhibit within the United States, and two are operating exhibits in Dallas. The first, Immersive Van Gogh Exhibit, is presently housed at Lighthouse Dallas and features 40 of Van Gogh’s artworks through 60,600 frames of video, 90 million pixels, and over 500,000 cubic feet of projections. The second, Van Gogh: The Immersive Experience, is located at Choctaw Stadium and features 8 artworks in a 20,000 square foot projection space along with a ten-minute VR experience. The two exhibits may seem like similar experiences on the surface, but a deeper dive reveals a specious reality. On one hand, Immersive Van Gogh Exhibit is the #1 selling show worldwide and is prominently featured in various news publications. But on the other hand, Fever, the organizer of Van Gogh: The Immersive Experience, has received an F rating from the Better Business Bureau (“BBB”), a nonprofit organization promoting marketplace trust. BBB issued a consumer alert in March 2021 regarding exhibit confusion after receiving 55 complaints concerning Fever’s customer service practices, refund processing, and advertising. That number has ballooned to over 1,000 complaints, and Fever is no longer BBB-accredited. The two exhibits have eerily similar names and websites, ticket prices are both around $40, and they are often advertised next to each other in online search engines. The consumer confusion is clearly warranted and raises several questions pertinent to IP protection and function.
How are the two exhibits able to display the same Van Gogh paintings?
All works first published or released before 1926 are in the public domain and have lost copyright protection, including Van Gogh’s works. His last two paintings, Tree Roots and Wheat Field with Crows, were created in the preceding months before his death on July 29, 1890. Yet, we still see copyright notices for Van Gogh’s works (and other public domain works) on pictures, postcards, calendars, and other similar mediums. Museums who have these works in their collections claim copyright not in the work itself, but in the museum’s reproduction of that work—namely, the photographic images of the work. While the copyrightability of these reproductions has been questioned (see Bridgeman Art Library, Ltd. v. Corel Corp), museums nonetheless retain rights to their collections as tangible assets. Thus, museums have turned to licensing agreements to govern access to their works. Have you ever been to a museum with a “no photography” sign? Museums are controlling who can view various works, who can photograph them, and what those photographs can be used for. Applied here, museums are licensing non-exclusive rights in their reproductions of Van Gogh’s works to the two exhibits, thereby using intangible IP assets to contractually safeguard and monetize their tangible assets. As a result, each exhibit in Dallas has no remedy to stop the other from using the same Van Gogh works.
Why are the two exhibits able to use similar names?
There are currently 47 live trademark registrations/applications using the words “Van Gogh” or a similar variation. The classes of goods and services for these different marks vary widely but include cheese, vinyl floor coverings, handbags, and even gin. Of particular concern to any potential trademark applicant in the Van Gogh art exhibit industry is the registered word mark “VAN GOGH ALIVE,” owned by an Australian multimedia company. Any word mark application using “Van Gogh” for art exhibit services would likely experience opposition from the USPTO. In fact, even the “VAN GOGH ALIVE” applicant ran into a likelihood of confusion refusal with the mark “VINO VAN GOGH,” subsequently resulting in an ex parte appeal and a coexistence agreement. As a result of these issues, many Van Gogh exhibits, including Immersive Van Gogh Exhibit, have recently applied for registration of their design marks (logos). While a design mark registration offers valuable protection, owners can only police their mark on the basis of visual similarity. Thus, the owners of Van Gogh exhibits have no clear avenue to stop others from capitalizing or profiting on the goodwill associated with their brand.
Immersive Van Gogh Exhibit and Van Gogh: The Immersive Experience will soon leave Dallas for other major cities, and the same consumer confusion will most likely follow. However, these immersive experiences have just begun. As a result, the consumer needs to ensure that they are purchasing tickets from the correct vendor.
These experiences have also highlighted the importance of IP protection and portfolio management. IP can function as a strategic asset class to help any organization create value. The licensing market for IP continues to grow globally, resulting in entirely novel organizational revenue streams. And the brand value in names and logos is increasingly worthwhile as jurisdictional borders dissolve in the wake of progressing globalization. The issues displayed by the warring Van Gogh exhibits accentuate the following notion: proactive protection and subsequent use of IP is warranted, if not necessary, in our current societal landscape.
Alexis Swanzy is a commercial attorney at Kessler Collins, P.C. where she handles a variety of litigation and transactional matters. Ms. Swanzy aims to create long-lasting relationships that will aid in providing personalized advice and solutions for her clients’ needs and goals. Nicholas Roide is a 3L at Texas A&M University School of Law and is interested in business and intellectual property law.
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