Posted by Tara Reed on Feb 4, 2010 in
Misc. Business Tips 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
Tags: Art Licensing, artist legal protection, Brand Aide Blog, Cheryl Hodgson, copyright law, copyright registration, Copyrights, Tara Reed, trademark law, trademarks
Posted by Tara Reed on Nov 13, 2009 in
Art Licensing,
Misc. Business Tips Hi everyone!
I was talking with attorney Cheryl Hodgson the other day and we were discussing the types of topics that would be of interest to artists and especially those relevant to art licensing. (I am pretty good at stating the obvious, aren't I?)
Anyway, Cheryl asked me to "Poll the crowd" and see what you want to learn about. We have the questions submitted for her call in July and some of my ideas... but PLEASE give me more feedback for her, okay?
I want her to talk about the finer points of copyrights, registration and trademarks. Also standard licensing contracts.
What do you want to know about?
I tried having a cool input form but apparently it isn't working - please add your questions to the comments or email me directly. Thanks!
Here's to your creative success! – Tara
PS - if you don't have a copy of the "Ask" call Cheryl did in July, CLICK HERE and register to claim your free.
Tags: art legal questions, Art Licensing, art licensing contracts, Cheryl Hodgson, Copyrights, Tara Reed, trademarks
Posted by Tara Reed on Jul 23, 2009 in
Art Licensing,
Misc. Business Tips It's like Christmas (or Hanukkah or Kwanzaa) in July!
Last night's call was amazing! I am so excited to add Cheryl to the "Art Licensing Info" team of experts willing to share their knowledge. I learned a lot and am sure you will too. I was talking with Cheryl this morning and told her that I wanted everyone to have the chance to get to know her by listening to the audio - what did she think about me just giving it to everyone?
I am happy to report that she agreed! So like Paul Brent, Cheryl's first call will be available for free and I do believe we will have her as an "Ask Guest" again. I'm working on a list of ideas for eBooks and maybe even teleseminars – she has great knowledge of the industry and delivers it in a very 'listener friendly' style... you'll see.
Here is what we covered:
- What are the dangers of being sued as a sole proprietorship with no employees? What steps would you suggest to protect yourself from them?
- I photograph vintage cars and license my images to art publishers. Am I infringing on copyrights when I photograph old Fords or Chevys? Do I need a property release?
- I am a Nashville based artist and a portion of my portfolio includes painted images of local landmarks. I have sold many of these images already but have been asked to reproduce some in a postcard collection. If I've already sold the originals, do I still have the right to reproduce them in this manner? The original was purchased by a local collector from a gallery that represents my work.
- I hear so many conflicting reports about loading my artwork on websites! Is there any "red light" language we should look for before uploading our art?
- What are the most common disputes that arise between licensors and licensees?
- The difference between trademarks and copyrights as well as what and when to trademark. (And why it is so much more expensive than copyrights.)
- I have many collections of art that I am copyrighting. Because there are so many pieces, I would like to group them in as few bundles as possible (to save $). I have heard of artists doing quarterly registrations like that. How many pieces of art can safely go into a collection and what would be too much? I want to cover my bases, be cost effective, but also adequately protect my art.
- I frequently register my art with the US Copyright office, but consistently discover my work being copied on sites like Etsy. "Police-ing" the offenders is such a time waster, but it seems necessary. Do you have any advice on how I can protect myself, other than officially copyrighting my art?
- How can I protect artwork that is on my website? Should all my image collections be sent to the Washington DC copyright office to be formally copyrighted prior to making presentations?
- How do I find a good lawyer to negotiate my licensing contracts? I have tried a regular lawyer who was a friend of the family, a lawyer in the publishing field, and a contract attorney. All of them have been very expensive and did not adequately cover my rights (which became obvious when issues came up after signing). What kind of lawyer do I need, how do I find him or her, and how do I know if they are good at what they do? Also, do you recommend using a lawyer in your area or is working remotely fine?
(Note from Tara: "Great attorney answering the questions, your search just might be over!")
- What are the top 3 most important things that you should be aware of before signing a contract with a manufacturer?
- If an artist licenses one part of a large piece of art, can that artist also license another part of the same art as long as it is not the same part?
Be sure to visit Cheryl's site www.brand-aide.com for a free chapter of the BRANDAIDE Internet Enforcement Manual and to get on the mailing list for her monthly Ezine.
She also sent me the 2 PDFs she refers to in the call you for as well...
Click here for the "Brand Dream Team" pdf...
Click here for information about why you would trademark your name...
Now, here's the link you've all been waiting for... CLICK HERE TO ACCESS THE REPLAY.
Enjoy this gift and be sure to take advantage - it is well worth your time to listen!
– Tara
P.S. To see past audio replays that are available for sale, CLICK HERE... a nominal fee to listen and learn in the convenience of your own home!
P.P.S. Someone commented about the call on my Facebook page and I forwarded it to Cheryl, she said, "It would be cool if someone wrote on my wall!" So let's show her some love... go be friends and tell her how much you appreciated her efforts... (I need to chat with her about a Facebook address... just login and search "Cheryl L. Hodgson" - she's in Los Angeles but you'll recognize the photo.)
Tags: art business, Art Licensing, Cheryl Hodgson, Copyrights, Tara Reed, trademarks
