Posted by Tara Reed on Aug 19, 2010 in Art Licensing
Once again, great questions were asked and helpful answers were given by Attorney Cheryl Hodgson. Last night Cheryl was my guest for the third time as part of the Art Licensing Info Monthly Ask Call Series - we had some technical excitement (something about Comcast and the conference call service switches maybe?) but I edited out as much of that as possible.
Here is what we covered:
Should I make my company an LLC?
How do business DBA's work if I already have an LLC?
How can I protect a product design concept that I might submit to a company with art?
How to respond to Trademark infringement concerns.
How do we determine if we can use what seem to be common sayings in our art, without having trademark issues?
How do you protect your tagline?
If we register copyrights in groups, does it limit our protection?
What recourse do I have if I see something created commercially that looks a lot like an image I posted to my website?
What are the rules about using paintings of private homes for commercial use?
Should we add copyright watermarks to everything we post to the internet?
Do I have to re-copyright art if a company slightly modifies previously registered work? Say color or layout changes?
Can I still copyright my designs if I've posted them on my blog or printed them on cards?
What should you do if you find out your images have been copied?
Do you recommend artists audit licensee accounting records regularly?
If you want a copy of the audio replay, it is $15 through 8/28 and $25 thereafter. We appreciate your support in purchasing these calls - it helps us continue to attract and create the great content artists have come to love and expect each and every month!
What's coming up next...
Wednesday, September 15, 2010 - NEW EXPERT Dena Fishbein will be answering your questions. Head to www.AskDenaDesigns.com to learn why I'm so excited to have Dena join the ranks of Ask Call Expert.
Wednesday, October 20, 2010: www.AskPaulBrent.com
In addition to answering questions from artists, Paul Brent will discuss how to plan your art collections for a trade show. Planning your collections, pacing yourself to get the work done and designing for trends for the new year.
Here's to your creative success!
– Tara Reed
P.S. Learn more about Cheryl Hodgson on her blog at www.BrandAideBlog.com - be sure to sign up for her ezine to continue to build your legal savvy muscle!
Posted by Tara Reed on Aug 18, 2010 in Art Licensing
Just a quick reminder that attorney Cheryl Hodgson will be answering the questions submitted by artists like you tonight. If you've signed up for a call before, you should have received the dial-in details by email.
If you've never participated, head over to www.AskCherylHodgson.com and sign up. Since we have already organized the questions, you can just put "no question" in the box then fill in your name and email and you will get the dial-in details.
The call is at 5:30 pm Pacific / 8:30 pm Eastern and will last for an hour. It's free to listen live. The audio replay will be available Thursday and cost $15 through 8/28 and $25 thereafter.
We will be covering copyright registration and enforcement questions, pros and cons of business forms (LLC, Corp, etc), trademark questions, contract questions and more.
I look forward to chatting with you tonight!
– Tara Reed
P.S. Don't forget! Let's get social on Twitter (use #ask when tweeting so we can find you!) and Facebook during the call. CLICK HERE to download all the details.
Yesterday I got organized and registered a batch of art with the Library of Congress. As I logged in, I saw a big red warning about system upgrades and downtime and thought I'd pass it along to all of you.
The Copyright Office is engaged in a major project to upgrade the software application that drives eService. System testing and implementation of the new software will occur over three upcoming weekends, resulting in periods during which eService will be offline. The testing and upgrade schedule is as follows:
1. Test Run 1: Friday, July 30, from 5:00 p.m. until Sunday, August 1, at 6:00 a.m.
2. Test Run 2: Friday, August 6, from 5:00 p.m. until Sunday, August 8, at 6:00 a.m.
3. Upgrade: Thursday, August 12, at 5:00 p.m. until Sunday, August 15, at 6:00 p.m.
All times listed are Eastern Standard Time. We apologize for the inconvenience. I hope you have some system in place to regularly submit your art to the Library of Congress. Without registering your work, you are limiting your ability to defend your work against theft and unlawful use. Submitting your art to online sites that say they will confirm your deposit if there is a problem isn't good enough. The only way to protect your work is through the US Library of Congress.
If you register online, the cost is $35 per registration and you will get your paperwork back much faster than mailing in your submissions - which costs $45 - so slower and more expensive. Do you think they want artists to embrace technology?
Cheryl will be answering more of your legal questions, copyright or otherwise, on Wednesday, August 18, 2010.
To submit your question for consideration, go to www.AskCherylHodgson.com today.
The call is free if you listen live and the replay will be available for a small fee after the call.
Protect your creative genius - register copyrights and learn the legal aspects of licensing. Here's to your creative success!
Posted by Tara Reed on Jul 22, 2010 in Art Licensing
My sister, Christine, who many of you have met over the years at SURTEX or who you may have heard on the Trade Show Tactics Teleseminar, helped me on the July Ask Tara Reed call. We always have a lot of fun together - including her pre-call threats to do one of the following:
forget the call completely and leave me stranded
be asleep and if she woke up, she'd be groggy and hard to understand
swear and embarrass me in any way she could come up with
use different accents for each question
She didn't forget and behaved very well. The only problem reported was that we sound so similar that sometimes people had a hard time figuring out who was talking. (We get that - especially over the phone. Lots of fun to tell our dad it's "His favorite daughter" and listen to him pause - trying to figure out who it really is and then say the others name!)
Here is what we covered on the July 21st call:
What are the first steps you should take before you try to license your art?
Do you need an agent to license your art?
Is it better to email or snail mail submissions to agents?
Is there a "set" advance price for artwork?
What types and sizes of files should you submit to agents or manufacturers?
Should you follow online submission guidelines to the letter or make follow-up calls?
How do I make calls to companies without sounding like a newbie?
What are the pros & cons of a contract with a "worldwide" territory?
How can I build marketable character-based art without having a Saturday morning tv show?
Trade show preparation strategies / tips
How do you use social media (Twitter, Blogs, LinkedIn) in your art licensing business.
Thank you so much to Laura for her fabulous question about cold calling and willingness to let us tease her (we are twitter friends so I knew it would be ok!)... we are now applying peer pressure to get her on the phone and then to report back on how it was, on the blog. Send her a message of encouragement on Twitter - she's @CreativeGirl - to keep her moving forward.
Facebook was a little quieter than usual but on Twitter it was so cool to see people joining forces to stay accountable! Social media is such a great connector!
If you want a copy of the audio replay, it is $15 through 7/31 and $25 thereafter. We appreciate your support in purchasing these calls - it helps us continue to attract and create the great content artists have come to love and expect each and every month!
What's coming up next...
Wednesday, August 18, 2010 - Attorney Cheryl Hodgson will be back to answer your legal questions. www.AskCherylHodgson.com
Wednesday, September 15, 2010 - NEW EXPERT Dena Fishbein will be answering your questions. Head to www.AskDenaDesigns.com to learn why I'm so excited to have Dena join the ranks of Ask Call Expert.
Attorney Cheryl Hodgson has done several Art Licensing Info Ask Calls with our community and has agreed to do another on August 18, 2010. You can submit your question anything at www.AskCherylHodgson.com.
Trademarks have been a topic of conversation and will be well into the future, I'm sure. They are much more complicated than copyrighting your art and harder to police and enforce. Cheryl recently posted a great example on her blog and has given me permission to post part of it here too. There is a link at the end if you want to get the full story.
It is not unusual for companies with famous marks such as “eBay” or “McDonalds” to file trademark infringement suits against competitors, especially when trying to avoid confusion in the marketplace. But the number and nature of suits filed by Intel, the world’s largest semiconductor company, leaves the impression that it is an overprotective bully, without knowledge that “intel” is common shorthand for the word “intelligence.”
Since 2008, Intel has filed infringement and dilution suits against at least 20 other companies (mostly small ones) for using the word “intel” in names and domains, even when there is obviously no similarity in goods or services or any possibility of consumer confusion.
Examples of recent suits include Intel’s infringement case against a jeans company with “intel” in its name and a travel agency by the name of Intellife Travel. Trademarks only cover specific areas of business, and because Intel sells microprocessors, not clothes or travel services, both of these suits were filed without consideration of basic trademark interpretation.
Posted by Tara Reed on Apr 30, 2010 in Art Licensing
What an amazing journey this blog and website is! In case you haven't heard this before... I really had no intention of building this when I started looking at internet marketing. I had a completely different plan! Boy am I glad I was open to suggestion (sort of) and decided to change my path.
Why do I say "sort of"? Well... when I took my first weekend class to learn more about online marketing, I had a great plan. I stood up and shared my idea - expecting the instructors to agree with me and help me get on my way. Instead, they smiled, shook their heads and said, "No."
What? Why no?
"Don't you realize how much you could share with artists who want to understand art licensing and how you do what you do?" they asked.
Well... I guess. I was still unconvinced but decided to be open to new ideas. My plan, when I left Texas, was to write one eBook - "How to Get Started in Art Licensing" - and then go back to my original idea. Boy am I glad I got hooked on this path because it has been, is and continues to amaze me!
It started with me sharing what I knew about how to get started. Now, I feel like a Cruise Ship Captain and Cruise Director.
I set the course of the Good Ship Art Licensing Info.
I look for passengers. If you are reading this, you are probably one. Artists who want to learn more about licensing, network with others who are interested in the business, build community.
More great legal insights from Cheryl - thanks & keep them coming!
The answer is: “Not much.” Visual and graphic artists are particularly vulnerable to unauthorized reproduction of copyrighted images on the Internet. It’s literally a simple “right click,” “copy,” and “paste.” Many such infringements go undetected. Those that are discovered are often let go without remedial action. Why? The artist fails to register his or her work with the U.S. Copyright Office prior to the work being stolen. For years, I’ve been asked: “Can’t I just mail it to myself?” In the case of scripts, “Isn’t the Writers Guild enough?” Then I hear, “I never got around to it.” My answer is, “Sorry, there’s not much I can do to help you.”
NO, NO and—NO! There is one place, and one only, to register your works, www.copyright.gov. Instead of sending in your registration by mail and waiting for years, the Copyright Office has come into the digital age so you can digitally upload the files. So why wait?
Exactly why is registration so darn important? While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. For example, if the work is used on a product that doesn’t sell millions of copies, how do you prove your damages?
Congress created two types of damages to recover under copyright law. In addition to “actual damages,” one can elect statutory damages without proof of out of pocket losses. This means not only will the infringer have to pay you up to $150,000 per willful act of infringement (the amount is discretionary with the court) they will need to pay your lawyer’s fees. However, your work must have been registered prior to the theft or these remedies are lost. Without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis.
Legally, you are entitled to obtain an injunction to prevent ongoing or future infringements even if you file the registration after the infringement. A preliminary injunction in a copyright case can cost six figures and above in legal fees. Just ask Perfect 10 who spent a fortune in litigation costs against Google for the past five years. The company was p.o.’d at the search engine for providing thousands of its modeling images as thumbnail versions and for providing links to infringing sites.
If you don’t register, you won’t be getting any statutory damages or lawyer’s fees from the defendant. Unless you can finance the case out of your own pocket, this is one lawyer who can’t afford to help you. Do your selves a big favor—take care of this simple but all important part of your business. Register your works—someday you may be glad you did!
Thank you for allowing me to post this on my blog for the benefit of the artists here!
To learn more about Cheryl, visit her blog, www.BrandAideBlog.com. Maybe you'll consider giving her a call the next time you need help with a contract, infringement or other legal issue... she knows our business which in the words of MasterCard, is PRICELESS!
Here's to your creative success (and figuring out the ever-changing online copyright registration process!) –
This is another guest blog post by attorney Cheryl Hodgson, one of the Art Licensing Info experts and Ask Call participants.
While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. Moreover, without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis. Establishing a strong brand identity for a particular character or product line can serve as an added source of protection and increase the value of the Intellectual Property beyond mere copyright.
An artist’s name, as well as names and logos for particular product lines, can also be protected as trademarks for the goods on which they are licensed. For example, characters from Star Wars have been on bedding, toys, and just about everything else. While the artistic expression of a character remains protectible by copyright, registration of the character and/or its name on the various products as a trademark has been a strategy of film studios for many years. The character becomes part of the “branded entertainment” package that not only brings in additional revenues but helps create wide spread exposure and recognition of the character as a trademark.
Trade Dress protection offers tremendous opportunities to expand IP protection beyond copyright, especially where artists develop a unique use of color combinations and/or designs which become identified with them. Developing protectible trade dress requires advance planning since use must be more than “just another pretty picture.”
Product packaging and designs, including color combinations and artistic images, can function as trade dress, provided they are not used in a merely ornamental manner. To be an inherently distinctive aspect of trade dress, a design should “come out into the spotlight of real trademark significance” and ‘hit the buyer in the eye.” See 1 J.T. McCarthy, McCarthy on Trademarks and Unfair Competition §7:28 (4th ed. 2000). “Use of distinctive design elements must be in a manner so unusual, unique, or unexpected as to be “automatically perceived by customers as an indicator of origin – a trademark.” Id. §8:13. One case example was the use of a rose design as background on a CLARINS product packaging. Registration of the rose background was refused since use was only as decorative background, not as a mark signifying the source of the products.
With proper counsel, visual artists could well do both, namely maintaining the artist aspect of the use, but also creating an additional use consistent across many design groups that come to signify the artist’s work.
Here's to your creative and defendable success!
– Tara Reed
P.S. Subscribe to or read Cheryl's blog to get even more great legal insights - www.BrandAideBlog.com
P.P.S. To register your art with the Library of Congress, start at www.copyright.gov
The following blog post has been re-printed with the permission of the author, attorney Cheryl Hodgson who has done two great "Ask" calls, the most recent on January 20, 2010. Read on to get some interesting food for thought about trademarks.
“Aha moment.” What do you think of when you hear that phrase? Or should I ask who do you think of? Oprah Winfrey would like it to be her! However, after her recent settlement with Mutual of Omaha insurance company, she might not be the only one that can use the popular phrase.
Oprah’s production company, Harpo Productions, had originally claimed that “aha moment” was a trademark from her television show. At oprah.com, you will find numerous videos showing the “aha moments” of various celebrity guests. Some of those moments include, “finding a different kind of happiness, learning to prioritize, and the courage to do something new.”
Harpo learned that Mutual of Omaha was using the slogan “official sponsor of the aha moment,” and sent them a letter asking them to stop use. Omaha responded by filing a lawsuit in the U.S. District Court in Omaha arguing that they had already been granted preliminary approval of a federal trademark for the slogan.
Harpo had previously applied for trademark protection of “aha moments” in entertainment services and in magazines, while Omaha applied to register “Proud sponsor of life’s aha moments,” “Official sponsor of life’s aha moments,” and “Celebrating life’s aha moments” in the insurance industry.
In doing a Google search, I found that Omaha also owns the domain <ahamoment.com> where they describe “A moment of clarity, the aha moment is a defining moment where you gain real wisdom—wisdom you can use to change your life.”
Even though Oprah had made the mark famous, Omaha alleged that she failed to police the mark and there was no opposition to its trademark application. The case was settled out of court. This story can be your “aha moment” in brand protection. I’ve written much about the importance of developing and maintaining a trademark monitoring program. Read our earlier post: http://brandaideblog.com. Enforcement means having a watch program in place to monitor new filings and counsel to give prompt notice of potential conflicts. Failure to police can mean complete loss of rights.
This all might not even matter much longer anyway, now that Oprah has officially announced her talk show will end September 9, 2011. Aha…
For more information on the importance of policing and monitoring your trademarks in the digital age, sign up for our blog and we’ll send you a free chapter from the Guide to Building and Protecting a Valuable Brand on the Internet, based upon the INSURE™ Brand Protect Sequence.
The lesson I learned? If you register a trademark, you better watch and enforce your rights because the "You Snooze, You Lose" rule applies!
Learn more about and from Cheryl Hodgson on her blog at www.BrandAideBlog.com. Watch for new art licensing information products from her in the near future!
– Tara
P.S. Get your free copy of Cheryl's first "Art Licensing Info Monthly Ask Call" July 2009 mp3 replay if you haven't already. The January 20, 2010 audio replay (1 hour long) is available for $15 thru 1/31 and $25 after that.
I don't know about you but the Monthly Ask Calls just energize me! Even if I have had a less than spectacular day, by the time I am done talking art licensing for an hour, I'm smiling and raring to go!
The January 20, 2010 call with attorney Cheryl Hodgson was no exception. I've known Cheryl for a year now and find her to be a source of upbeat energy and sage advice. She can put legal issues into terms anyone can understand and isn't afraid to be practical when sharing her opinions. (Any attorney that says it isn't always the best choice to sue or go to court is ok in my book.)
If you missed the live call, here is what we covered:
Is it ok to use licensee logos for links on my website or should I get permission first?
If I create art as a person (outside of my business), but then want to license it via my business, how do I set that up?
Do I need to move my business license each time I move to a different state?
We have a licensee that hasn't provided reports and after a year claims there is no revenue. Is there a way to handle this properly without exorbitant legal fees, or should we just walk away?
What if anything can I do about a company who has blatantly copied a design of mine and is selling it if I haven't registered it with the Library of Congress?
How do you work with multiple manufacturers in the same category without getting into conflicts of interest?
I've recently been told that because I do different kinds of art - I should use a pseudonym (like a stage name) to differentiate my styles. What are the legal ramifications of this?
Several questions and more details about how to register groups of art in a single submission to the Library of Congress to save time and money.
So whether you were on the live call or not, you just might want to invest in the mp3 replay and make sure you didn't miss anything. The audio is available and a mere $15 through 1/31. The cost goes up to $25 on 2/1. (Still a great deal!) Click the button below and get your copy today!
Here's to your creative and legally savvy success!
– Tara
P.S. Next up... www.AskAboutSEOforArtists.com - learn how to get the right traffic to your website so you can concentrate on your creativity.
P.P.S. Don't forget, the winner of the "Art Licensing Story" video contest will be announced on the 2/17 call, when we explain "link love" in more detail. Have you entered yet? CLICK HERE for all the details!
Once again, great questions were asked and helpful answers were given by Attorney Cheryl Hodgson. Last night Cheryl was my guest for the third time as part of the Art Licensing Info Monthly Ask Call Series - we had some technical excitement (something about Comcast and the conference call service switches maybe?) but I edited out as much of that as possible.
If you've never participated, head over to 
