The past three years of Phish have been nothing short of amazing. We got our band back, healthy, happy and playing well. Things continued to get better with each show, each tour, and each year. Few complaints were heard from fans with the shows and the scene alike, leading to a vibrant community akin to what once was in the 1.0 and 2.0 eras of Phish.
Music aside, in the past year or so, fans have been making an increasing amount of art inspired by Phish, something that has been a positive sign of our growing community. Since Hampton, the phan made lot art has been increasing steadily to provide some truly unique and interesting pieces of art as well as designs that appeal to a niche interest. You may have seen a great deal of this art on PhanArt.net where the art is showcased, for free, to benefit The Mockingbird Foundation. There is even more art out there and fans walk around the lots selling their design in order to make it to the next show or trade for a ticket. Phish’s audience is expanding. The band is trying to gain a new audience in playing festivals like Austin City Limits, Outside Lands Festival and even Bonnaroo, when they could easily play their own festival for 30,000 fans and be the only band on the bill. As Phish grows, so does the scope of the band and the community becomes diluted with newer fans. This is welcome because the Phish community is nothing short of inclusive and welcoming to outsiders. With this growth comes the perception that the art we make is done without boundaries and new fans, both typical and atypical, can view this as carte blanche to make their own creations without limitations.
An example of infringing art - funny, but still infringing
There are however certain limitations that we have on the art we make, whether we recognize this or not. I wrote in the past on why fans should not use the logo and what constitutes infringement based on my experience assembling PhanArt: The Art of the Fans of Phish and getting a lesson in the legality of intellectual property all the while. I write today to discuss the reemergence of a fair amount of work that is at the same time potentially infringing and off-putting for fans, because it does not represent what we are capable of creating with our unlimited creativity, provided we follow some simple rules. Namely:
- Do not use the Phish logo or any offshoot of it (i.e. filling in the logo with a word)
- Do not use the word ‘Phish’, ‘Gamehendge’, ‘Gamehenge’ (the latter is the common misspelling but still not OK) or names of any side projects.
- Do not use the band member’s likenesses or names. By likeness, this includes photos, drawings, photoshops and uses of the familiar likeness of the band members.
Logos, names, and likenesses are a band’s intellectual property and thus, are things that they need to protect in order to make a living. The band is entitled to protect these things and like virtually every other band out there, they have and they will go to lengths to protect them, including using legal means to do so. The injunction the band uses to seize merch that infringes upon their intellectual property is one means and Phish fans should be thankful it is not more rampant. We do our best to keep on the legitimate side of things, in terms of lot art, but at times fans will make something that goes over the edge of what is allowable under the law. The interpretation of what a likeness is depends on who is potentially seizing the merchandise. Avoiding this and the other rules will help you to avoid confrontation.
An example from 1994 of infringing art - manipulating the logo is not allowed
Simply put – be creative! Some of the best Phish lot art follows these three rules. Some of the worst lot art ignores the rules and takes the path of least resistance. A lot of the Phish phan art made recently is 100% original and does not reference the band directly – it makes you think about the design in order to get the connection, an inside joke of sorts. There is a stark difference between piracy, where in the band’s intellectual property is ripped off and exploited for personal gain, and making an artistic homage to the band and their music. The latter art is stronger and more creative as a result of the restrictions. In a way, these restrictions benefit the Phish Art community’s creativity and increases the potential for even greater art.
Think of that episode of Top Chef when they can only use items found in a convenience store in their meal. They are restricted from all the good stuff, the easy stuff to make a meal. Instead, being limited draws out the true creative nature of the artist. In fact, these could not even be considered ‘limits’ but rather ‘boundaries’ which keeps the creativity moving forward instead of derailing and falling into a side-ditch where the intellectual property is used and exploited.
This is creative, but it's still infringing
Phish Lot art and phan art are one thing, but infringing art is another. Making a poster or shirt or pin so unrecognizable that it’s unclear that it is even related to Phish is a goal many artists have in the back of their minds when making lot art, rather than taking the easy way out and using the logo or the band’s name in a piece of art, a shirt, a sticker or a pin. Anything that can be looked upon as infringing on the band and their image can lead to the band putting the kibosh on lot art. This isn’t a far fetched idea, it is quite the opposite; it is the reality we face if the infringing art that circulates on Ebay and in groups on Facebook isn’t quelled to the point where the ‘rules’ are followed and Phish fans abide by parameters that we have been unofficially granted. Infringing art sold online is part of the problem. A handful of bad apples that ignore the rules are risking the scene for all of us. Phish does have people buying the infringing art on lot which makes their case that more stringent rules on lot are needed.
The band and their management tolerates non infringing lot art, but when you use the logo, when you use the likenesses of the band members or the words ‘Phish’ or ‘Gamehendge’, it is not tolerated and this can wind up hurting the entire lot scene for everyone. It is in everyone’s best interest to speak up when you see art that includes the aforementioned infringing items. We do not want to bring unwanted attention to a thriving lot scene because a handful of fans felt it was ok to use Trey’s face on a shirt or Phish’s name on a poster, because if a few fans do it, more will take notice and follow suit and before long, the problem is out of hand.
This example of art using the band's name = you are violating their copyrights
Remember, the Phish lot and art scene thrives as a privilege, not a right. NO other band allows fans to have this kind of lot scene in any form, not with the Shakedown area, the shirts, posters and pins
We as a community need fans to speak up and prevent this from becoming a grander issue. There will always be traditional bootleggers with logo infringing shirts for 10 bucks post show, but that should be the extent of the infringement, not the seed of more.
Get creative! Cool, smart art like this is way better than using the band's name or logo
As a group, we can say that we do not condone the use of infringing items incorporated into the art fans make. This includes, but is not limited to: Posters, Shirts, Pins, Stickers, Drink Coozies, Lighters, Hats, Merit Badges and patches and other items as they are created and become popular on lot.
It’s a simple solution really. Stop making art that infringes and start making smart art. If you see someone sell art that is potentially infringing or are in the design process and mention the idea, tell them they might get it taken away which impacts us all. Report problems and share consequences and most importantly – spread the solution. And of course, don’t buy the infringing piece of lot art; in doing so, you don’t support those who don’t support the scene as we have been allowed to do so.
Song lyrics, song names, all that is allowable, based upon the legal standard applied to the nature of the art. “And we love to take a bath” as a sticker is OK; “Bathtub Gin” as a sticker is OK, “Phish brand Bathtub Gin” is not. It uses the word Phish and by using Bathtub Gin alone, fans know what you mean. Fans are smart – make us think about it. If you make it too easy, it’s not as cool.
This is non-infringing and an example of being creative with Phish related art
Got questions or thoughts on this? An experience seeing the infringing art? Got ideas on how to stem the flow of this art? Leave a comment below.
We are interested in preserving what we have, rather than losing it after 20 years of building up the phish lot community. If the piracy continues, the whole Phish lot scene and all of the truly wonderful art that goes with it will be threatened.