Dead or Alive: Artists' Rights

I was in Moe's with my kids yesterday, eating a "Close Talker" with tofu when Crowded House's Something So Strong came on, which caused my fork to stop mid-way to my mouth for a second. Then I remembered that the drummer had died a couple of years ago and resumed my bite of salad with a tinge of sadness.

I found it interesting that Moe's was continuing to add music to their collection of dead artists even after the lawsuit that had prompted them to change their decor. When Moe's Southwest Grill opened in Ocala they had fun paintings of dead musicians hung on the walls and menu items like the "Ugly Naked Guy" burrito.

Soon after, Jerry Garcia's estate sued them for use of his image on their walls, claiming that it was advertising. Another restaurant chain also sued them over the use of the word "naked" referring to a burrito, since they had trademarked the "naked burrito" describing the contents without the wrap. Oddly, "Ugly Naked Guy" actually referred to the tv show, Friends, which didn't seem to mind. Moe's conceded in both cases, removing all of the art and the word "naked."

They are still playing music from 6-feet under, though, and if the music isn't seen as advertising, why are the paintings? Do the House of Blues and the Hard Rock Cafe pay for the rights to use all of their photographs and paraphernalia? Dubious.

As a live artist who wants to paint a series of musicians called "The Messengers," I have struggled with how to go about it for quite some time. I don't want to work from commonly-known photographs for various reasons including originality and the photographer's rights. I have thought about contacting some of the live musicians and asking if I could get permission and an original photograph to work from. But what of the dead musicians? Would Rita Marley agree? Jeff Buckley's mother?

I am sensitive to an artists' rights, both as an artist who wants my rights protected and as one who knows how easy it can be to cross over the line with creative expression into copyrighted territory. Did the little old lady with a bony hand reaching out from her hood, as she sits and begs for money on the steps under a Venetian arch need to sign a waiver before I photographed her?

I sure do wish I had a close friend or relative who is an intellectual rights attorney to clarify all of these questions that constantly arise. Then there's the question, if the laws were there to write all over again, would I change them and if so, how?