Original draft written February 2019
This particular blog post has been a living document for me these past few years - changing it here and there as more information and distance offered a new point of view... trying to sort out how Kai could lose a portion of his art to an ex who had no authorship or contribution to the content...
I want to preface this by saying one word: perspective. There are big, big things happening in our world, and the challenges Kai and I have encountered in these circumstances pale in comparison to those who do not have access to clean water and air, fresh food, and a safe, warm place to live. The topic of copyrights is not as hectic as climate change or fighting for equality... and certainly less devastating than a global pandemic.
Nonetheless, I feel our story is worth sharing. When something like this happens, what is revealed is more than the character of the individuals involved, it's something larger about the culture.
ON CREATIVITY & ORIGINAL CONTENT...
I am a teaching artist. For nearly 20 years, I performed and taught an integrative approach to vocal production, text analysis, and full body storytelling. Post this, my study and work evolved into a bio-psycho-social approach to storytelling, wellness and every day living. I love deep dives into the how of doing.
Based on what I've experienced and observed, I believe what separates a creative life (which I would hope for everyone) from a creative career is countless hours developing skill, muscle memory, and myelin. Investing in training and research, experimenting and then putting your work out there for others to critique. Testing theories against time and a wide range of circumstances, continually honing technique according to your aesthetic and the evolution of your self in an ever-changing world.
Maybe it's all those years of having a playwright in the rehearsal room, and watching students struggle with their understanding of plagiarism and the internet - but I'm tuned in to protecting those who do the work.
I gotta say it has been eye-opening these last five years to move from academia to freelance and running a small business... I assumed most of the same rules around integrity and original content would apply, but it turns out they do not.
ORIGINAL CONTENT & DIVORCE...
I entered into Kai's story in 2015 and was privy to only five of the nine years of his messy divorce. The two legally separated in 2009 after several years of being unable to repair a broken marriage. The fissures of dysfunction began long before I met him. As anyone who has walked through a divorce will tell you, it's the result of collective choices by both parties that add up over time, and no one person is ever to blame.
As one who unexpectedly became tangled up in someone else's acrimonious divorce, I can say it is an indescribable experience to witness the lengths family will go for greed and the power of the legal system over an artist's work. I believed the courts would be more discerning and that artists had more legal protection...
In the end, the divorce decree and the Iowa Supreme Court failed to address the very real issues that splitting the work of a living artist would have in the marketplace. They completely disregarded authorship of content. Kai's ex was awarded the company (including his email address, all of the studio equipment and social media accounts), and ownership of 2/3 of Kai's copyrights - even though she had no participation in their creation.
Effectively, this ruling means his ex now owns digital files of Kai's original work and the copyrights attached to those exact images and words. Kai does not create digitally. Everything he writes and draws and paints is done on paper or wood with brushes and ink or graphite. He then, himself, creates digital scans of these originals to be reproduced for production.
Meanwhile Kai was awarded with the entire body of original artwork that the digital files were created from, all of his notebooks, and full ownership of his copyrights from 2012 on forward into the future.
It's important to note here the work sold at StoryPeople was never done as work for hire. It was always licensed separately from Kai to the company, and registered in legal copyright solely in his name. There was even a documented case that proved the art was not owned by the company, but to the artist. Years ago, Audi had taken a story of Kai's to use in a commercial without his permission. Kai not only took them to court in Iowa and won; the case has become case law in copyright that is cited in cases involving indirect profits.
Kai had all the necessary legal contracts in place as an artist. For 25 years, there was never any question as to who ran the company and created the content. As the recognized sole author of the content he created, Kai has always had the legal right to exploit his licenses as he wished because none of the artwork was ever owned by the company.
Though the licenses may be considered a shared marital asset, there is no law that required Kai to license every story he's ever written through StoryPeople.
A former Iowa Supreme Court judge assigned to their mandatory mediation understood this legal arrangement with Kai's licenses and offered a ruling that was signed by both parties, but then the ex reneged. She decided to go after the company and Kai's copyrights and and the case was put back on the calendar. The lower court judge eventually assigned to the divorce case over a year later looked at the same information - though with a different story told by the ex - and disregarded the contracts and intellectual property precedent - even though all profit Kai acquired through his licenses was well documented in bookkeeping and tax statements.
This judge assumed he could just split the copyrights, separate Kai from all future financial interest in the company that was synonymous with his name and art, including the 2/3 of his most popular stories, and that Kai would somehow figure out how to compete with himself in the marketplace, re-associate his reputation with a new company, and financially start over his mid-60s.
The real lingering issue is that the decree did not offer a clean split - not when the marital asset involves someone's reputation, name, and clearly identifiable work. It's like dividing an author's publications or a musician's body of compositions - and then giving the non-creator spouse - with whom there is an unhealthy relationship - not just full financial award from the work, but also permission to rewrite and move the words and notes around, while the original maker is still alive... with the added benefit of capitalizing on the artist's name and reputation in the marketplace.
WHAT INTELLECTUAL PROPERTY SPECIALISTS HAD TO SAY...
Post the decision, I sought the guidance of lawyers that specialize in intellectual property. Partially because I was confused as to how this could happen, but also because I wanted to understand how to protect myself and my own creative content. I deliberately chose a team with offices in New York, Washington D.C., Seattle, and Los Angeles - one with clients like Microsoft... I wanted to know true precedent.
Regarding creative content as a marital asset for a living artist, my lawyers affirmed it is precedent in the courts to grant the non-creator spouse either a financial interest or right of use, never control of the actual copyright.
Their response when they read the decree was that it was an irresponsible and sloppy ruling - because it broke precedent and they saw all sorts of ways either party could find themselves in court in the future. The Iowa Court of Appeals ought to have caught this. Their ruling parroted the lower court judge's decree and didn't even address the issues clearly outlined in the appeal. When we asked how this could happen, it was suggested that it might be a combination of the punitive language used by the lower court judge in the initial decree, and that the Iowa courts were already overburdened as the appeal reached their desks during early COVID.
With this divorce decree, his ex as owner of StoryPeople can now change how Kai’s drawings and stories are put together, cobbling together his art or words with other work in ways he would never agree to - so there is no way of knowing what was actually created by Kai and what was digitally arranged or altered by the company - even though the final product may carry the copied digital signature or authorship of the name Brian Andreas. This is considered morally unethical, but legal.
When we showed the lawyers the work that Kai's sons are doing - some of the stories that are obvious rewrites, along with his ex's statement on social media where she admitted she'd asked the sons to copy his work - publicly lying when she stated that Kai's "style" had always belonged to StoryPeople, that it was never his own - the lawyers shook their heads and said again, unethical. And that we should keep a file of these examples that they will continue to review.
Our next question was, if there are no clear boundaries between two companies sharing the work of one artist, how can we create them so we can move forward...
They suggested, since we get a lot of questions about this from customers and wholesale partners, we keep this page live in order to publicly state our position, and correct people when they erroneously attribute work to the wrong company or artist.
We choose not to work with StoryPeople because it is not in our best interest of wellness. It would be like working alongside a company that does knock-offs of your work and then calls it their own. We don't know any artist worth their salt that would agree to that. And in my opinion, unhealthy relationships with a steady history of violence to the spirit are not ones to continue.
The upside to all this is that we had an incredible amount of information when it came time to begin Flying Edna. Together, we worked with lawyers on all company legal agreements - so that both Kai and I are collectively and individually protected. As much as is possible. As they tell us however, any resolution of a conflict we might have would depend on the judge assigned to the case...
Kai has 25 years of name association as Brian Andreas and StoryPeople, and generations have the expectation of going there and finding him. He has to continually correct things on social media because there is confusion now in the marketplace... and his ex has nothing clearly posted on the StoryPeople website that states Kai is no longer with the company or where to find him and his work.
We would love your help in spreading the word that Kai is still creating (under his new name) and has a new artistic home at Flying Edna.
Purchase whatever you like from whomever you choose, but please be accurate when you respond to something that moves you – especially on social media. Credit the original source or acknowledge a company - know the difference between them.
It's more than attribution, it's an attention to detail that honors the grit, deep intelligence, insatiable curiosity, desire and discipline it takes to choose a career as an artist.
And if you're an artist educator, you're welcome to share our story if it's useful in conversations around navigating copyright and family. Teach young artists how to protect their work - not from a space of scarcity or fear, but in order to ensure they have choice in how their voice goes out into the world.
Our courts are imperfect. Judges are human. I'd like to believe each is akin to such towering spirits as Nelson Mandela and Ruth Bader Ginsburg, but they are not. I'd like to believe consumers would care more about companies that stand behind fair trade and equal pay, livable wages for all and products that when discarded will not harm the generations to come. I'd like it if we all held ourselves and others to much much higher standards. Not because it's "right" but because we can. But it's not for me to say where others focus their hearts.
Like I said at the beginning of this long long post... perspective. We're fine. Wiser for the experience. With a hell of a lot of grit (and not always enough grace), the two of us built Flying Edna from the ground up - and every day we're grateful for another day together and the deep privilege of doing the work we love.
As I write in Creative Anarchy, what we choose to create from imperfect and challenging moments carries along energy. It matters not just that we move through something, but how...
So even if something outrageous like this does happen, know you have the agency to choose how you move through it. Every step of the way. This is what will continue to shape your character... not the loss.
always in motion,
p.s. Everything here in our studio carries Kai's new signature and/or the Flying Edna studio signature - so it's quite clear when you've purchased or received something authentic from the artist(s) that originally created it.