Solo Cup Company Got Artist’s Instagram Nuked for Using Famous Jazz Pattern

Instagram deleted the account of an artist producing work critical of Solo Cup Company, maker of the iconic, disposable red cup. 

“My intent was just to talk about paper plates,” artist Christopher Locke told Motherboard. Now his account, his followers, and years of conversations with fellow artists are gone. (disclosure: Motherboard has commissioned two pieces from Locke in 2019.

Locke is an artist and ceramics teacher in Austin, Texas. His work focuses on American overconsumption and the disposability of material goods. Recently, Locke was making and selling ceramic cups infused with the famous Jazz design Solo cups used in the 1990s.

“My work since 2005 has a lot of references to wastefulness, overconsumption, planned obsolescence of electronics, and this desire that we all have to consume. Everything’s disposable,” Locke said.

As an older millennial, Locke grew up drinking from cups emblazoned with the Jazz design. He remembered the look fondly but didn’t want to buy wasteful disposable cups. So he fired up his kiln and started making his own ceramic versions. On some, he tweaked the purple and teal splash of color to form the words “corporate bullshit.”

He posted them on his Instagram account and began selling them on his Etsy store. “This hit that real sweet spot between the nostalgia for our age range and also feeling better about the wastestfullness by buying something that’s handmade,” he said. “It reflects on the wastefulness without buying into it. My thought is, if you give somebody a handmade ceramic thing that looks like a paper cup then maybe they’re less likely to buy paper cups.”

On April 23, Instagram deleted some of his recent posts about the ceramic cups and explained that Solo, which has a trademark for the Jazz design, had flagged the posts for trademark violations. According to Locke, he didn’t want to lose his account so he carefully went through his posts and scrubbed pictures of the ceramic cups. But he missed one from three years ago and three days later, Instagram called him a “repeat infringer” and deleted his account.

Locke reached out to both Instagram and Solo to try to resolve the situation. He pointed out that there are hundreds of Etsy stores and listings on Amazon emblazoned with the Jazz pattern. 

“I have been sorely mistaken in thinking it was so ubiquitous that I wasn’t doing any harm in making some pottery,” Locke said in an email to Solo’s lawyers. “Can we call a truce? I can’t undo what I’ve done, and don’t want to lose my entire account over it.”

Dart Container, which acquired Solo Cup Company in 2012, responded to Locke by telling him he wasn’t being singled out. “Dart Container appreciates its passionate community of fans,” the company said. “We can assure you that we are in the process of remedying the other infringing items and that your items are not being singled out.”

Locke also appealed to Instagram to no avail. “We previously warned you that if you continued to infringe the rights of third parties, we would terminate your account,” Instagram told Locke in an email. “Accordingly, your account has been deactivated and you are no longer permitted to use Instagram. Thanks for your cooperation.”

While Solo sells Jazz pattern-themed merchandise on its own store, and Locke’s ceramic pieces could theoretically be mistaken for official company products, according to a copyright expert, the ceramic cups probably fall under fair use. They’re a parody and comment on Solo’s brand and it may be hard for Solo to prove otherwise in court. 

“I’m a little surprised that they were able to get a successful takedown of this kind of artistic work using trademark,” Louis Tompros, a copyright and trademark lawyer at the law firm Wilmer Cutler Pickering Hale and Dorr LLP, told Motherboard. “I don’t think there’s any realistic copyright claim that they could make that wouldn’t get subsumed in fair use.”

According to Tompros, a trademark is supposed to protect consumers, not the brand. It’s meant to protect a consumer from buying a branded object that isn’t actually made by the IP’s owner. “You can’t stop someone from using your trademark just because they’re disparaging you. That’s not the point,” he said.

Tompros said that Solo might have a case for trademark dilution, but it would have to prove that Locke’s work had damaged the brand and confused consumers. 

“The thing is, the ability to protect against that is very limited because we have the first amendment,” Tompros said. “We want people to be able to criticize brands. We want people to publish ‘this brand sucks’ bumper stickers and for that to be okay.”

Locke just wants his account back and he’s unsure if he’ll make another one. For him, losing the source of revenue doesn’t hurt as much as losing the history he’d built online. “The thing that really bothered me was every comment I had left on another artist's page, every conversation that I’ve ever had with another artist on Instagram, all the messages back and forth, all of these relationships...it’s just vaporized,” he said. “If I start another account I’ve got to build that back up from zero.”

Solo did not immediately return Motherboard's request for comment.