A federal judge in New Mexico has granted and dismissed some of the claims made by the art company Meow Wolf in response to a copyright infringement lawsuit from artist Lauren Oliver.
The case centers around Oliver’s 13-foot tall, furry, horned sculpture Space Owl. The sculpture was first created in 2006, but the artist made a new version of it for a climate-change themed environment called Ice Station Quellette (ISQ) in Meow Wolf’s House of Eternal Return (HoER).
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The highly Instagrammable immersive art attraction in Santa Fe, New Mexico opened inside a former bowling alley in 2016 when Meow Wolf was still an artists’ collective before its incorporation.
According to court documents, Judge Kirtan Khalsa of the New Mexico District Court found that Meow Wolf “holds an implied, irrevocable, nonexclusive license to use images of ISQ to market and promote the HoER for the first ten years of its operation.” However, Judge Khalsa also found “there is a genuine issue of material fact regarding whether the license allows such uses under narrative titles other than “Ice Station Quellette” .
In March 2020, Oliver filed her original complaint against the company, accusing Meow Wolf of copyright infringement and violation of the Visual Artists Rights Act (VARA), along with other claims, for using images of Space Owl to market and promote HoER. This included the art collective’s “self-made puff-piece documentary” and an image used to represent Meow Wolf in the Artnet story “The 100 Defining Works of the Decade” which featured the company as No. 25.
An initial email said Oliver would retain all intellectual property (IP) rights, but Meow Wolf would own the final work made by the artist. According to The Art Newspaper, the company also offered Oliver a $10,000 “revenue share stipend”, which founder Sean Di Ianni later described as “essentially a verbal commitment to artists to pay out a portion of our revenue to artists after we reach a certain revenue trigger,” according to court documents. That number was later revised to $7,000.
The accusation from Oliver that Meow Wolf violated her IP rights was sparked by the artist observing images of Space Owl in books sold at the HoER’s gift shop and in the documentary. According to the Art Newspaper, “Kadlubek gave Oliver the option of selling all the rights to the Space Owl or removing the entire ISQ installation without additional compensation.”
Oliver’s lawsuit alleged Meow Wolf’s artist revenue share shifted to a ‘bonus program’, “amounting to Kadlubek making personal, arbitrary decisions about who got what.”
That left Oliver out of the financial success of the “wildly successful” HoER, which had become a “multimillion-dollar enterprise”. According to Albuquerque Business First, HoER’s first year of revenues were $6.8 million, it welcomed its one-millionth visitor in 2018 and generated $90,000 on its highest-grossing day.
In Oliver’s lawsuit, the artist sued Meow Wolf for $1 million, insisting that she never received any “compensation” for installing ISQ at the HoER.
However, Oliver admitted in court that she received “consideration of monetary value in exchange for the
installation” and testified that Meow Wolf “bought much of the materials” she used to create Space Owl, and that the company supplied the funds she used to pay an art assistant for helping with its installation.
In the judgement filed on June 16, Judge Khalsa also wrote that Meow Wolf carried the burden of showing with certainty that Oliver intended for the operators of HoER to use images of ISQ for marketing and promotion purposes, and therefore granted these operators an implied license for such use. This included Oliver offering her skills in marketing and graphic design to a member of an early-stage development and operating company VCMSE Art City, Oliver’s positive reactions to images of Space Owl posted on social media platforms, and the inclusion of images of ISQ that had been used to market and promote HoER on Oliver’s websites.
However, Judge Khalsa also wrote “there are genuine factual disputes regarding whether Plaintiff limited the scope of the implied license at issue.” The judgement notes that after Oliver finished installing ISQ, she sent Kadlubek an email that her installation could not be under a different name, which “creates a genuine issue of material fact regarding whether Plaintiff timely expressed an intent to limit the scope of the implied license at issue to exclude the use of images of ISQ under narrative titles other than ‘Ice Station Quellette.’”
Source: artnews.com