Summary Judgment Regarding Use of Art Works Benefits Art Instructors

artist had copyrighted her art works, including the Dog Art series. Keck’s lawsuit argued for statutory damages for willful infringement in an amount up to $150,000 for each of the six copyrighted works at issue under the Copyright Act, as well as injunctive relief and other claims.

As soon as the suit was filed, the art school immediately pulled down the art kit from the website and ceased sales of it, Garcia said. Only six kits had sold, including two bought by Kenneally herself. As a potential settlement on behalf of their client, the attorneys offered to return all gross revenue to Keck and pay more than that amount. They provided evidence of their client’s “innocent infringement and good faith,” and showed that no copyright notice appeared on the images Kenneally downloaded through Google.

The attorneys also provided evidence of several artists who had thanked Kenneally for featuring their art, increasing visibility of their work.

Roland Garcia ’86, shareholder with Greenberg Traurig, LLP, won a summary judgment in December for his client, Mix Creative Learning Center, LLC, in an important copyright and trademark infringement case with positive results for artists and art teachers.

Garcia, lead attorney in the case, argued both fair use and no willful infringement on behalf of his client Jacqueline Kenneally, who owns and operates the Mix Creative art school for children. He cited several authorities for the contention that the use of the source material — accompanied by biographical information or other scholarship or lessons — transforms art into an educational tool.

“I am so grateful to Greenberg Traurig Shareholders Roland Garcia and Mark Chretien for their help, knowledge, and kindness,” Kenneally said. “This result is an enormous relief for me, as well as other art teachers and artists everywhere. Thanks to their good work, I can resume teaching my students about artists from around the world, continuing to give them full credit for their inspiration.”

In November 2020, Kenneally was selling art kits featuring Keck’s Dog Art series, hoping to inspire her students to create their own masterpieces. The art kits included pictures of Keck’s art, biographical slides of the artist, paint, paint brushes, and collage-style puzzle pieces to inspire new art creations by the students. The images of the art works were retrieved from publicly available internet pages.

Keck learned about the art kits and sued the art school in February 2021. The

In Michel Keck v. Mix Creative Learning Center, LLC, et al. — argued before U.S. District Judge Keith Ellison — the court found that, as a matter of law, there was no willful infringement and the doctrine of “fair use” protected Mix Creative’s conduct.

“Mark and I are grateful for the court’s attention on this complex and important matter,” Garcia said. “The case presented unique issues of fair use in a commercial art school setting and gives guidance for future artists and art instructors. Our position is that there is no way to effectively teach art history and art styles without showing historical art pieces to the students. Our client hung in there when faced with an unreasonable settlement, and we hung in there with her.”