The legalities of Ring Pops and what it has to do with you if you license your art
Sarah Feingold, Esq loves Ring Pops – which, according to her video below, requires the ® to show that the term is a registered trademark of Topps. She is an attorney and a jewelry artist, author of the eBook Copyrights for Artists* and a contributing attorney in the latest eBook – How to Understand Art Licensing Contracts.
Here is a fun five minute video of Sarah from a talk she gave to over 1,000 tech people about jewelry and law and candy. (I would have loved to have been a fly on that wall – wonder what they thought of her???) I recommend you give it a look and listen to brush up on some copyright and trademark law basics – things you need to be aware of in this business. Sorry – I have no Ring Pops for the group!
Here’s to your creative success!
– Tara Reed
In this artist’s opinion, copying IS theft
After the post last week about “inspiration” and copyright infringement, a YouTube video called “Copying is not Theft” was brought to my attention.
The video contends that “copying just means there is more to go around, one for you and one for me”. I respectfully DISAGREE!
The comments are equally as upsetting – here are a few:
Copying physical products I think is the only time there is something wrong with it, because it’s stealing profit from the inventor. It’s deliberate misleading of customers who actually pay for physical objects. However copying something in the software world is positive for companies. Why? because if you made a copy of it, I say 99% of you were never going buy it anyways. Never Ever. So the only thing that was gained, was popularity of the company, attracting people who will pay for it.
I disagree. People stealing software doesn’t attract new customers. There is a definite break in logic to help justify this person’s actions.
This person agrees with me and replied to the above comment:
Are you saying that anyone who writes code is essentially a slave to the world, and deserves no compensation for what they make? What you’re talking about is just a way to confuse appropriation and inspiration with excuses for piracy.
This person just confuses the heck out of me and I question the education system in whatever country they live in…
you cant steal code, only copy it – that’s what the video is trying to say
Part of the reason there is so much innovation in the United States is because we DO have intellectual property law.
Why would you want to spend your time and energy creating software, systems or ART if it was considered perfectly fine for people to copy it? Just because it doesn’t fit in a box doesn’t mean it has no value. I make a living with my art and the pixels created with it (all of our art is digital before it lands on a product that fits in a box) – and I’D APPRECIATE IT if my hard work and effort wasn’t demeaned and devalued.
One lesson I’ve re-learned from this is that many people think that just because they see something on YouTube that it’s true. Anyone can post anything on YouTube. Or on a blog. Or anywhere.
The link to this video was actually tweeted by an artist. An artist interested in art licensing. This really leaves me scratching my head because it goes against the whole concept of licensing. Our contracts often include that we register our work with the Library of Congress and that we will enforce the protection or at least assist if the manufacturer wants to go after an infringer. If you really believe that copying is ok, I’m thinking this isn’t the business for you.
SO… I leave it to you to weigh in. What do you think?
– Tara Reed
How copyright infringement is like stealing my sandwich…
I think this will be the last in a string of copyright related posts – at least for a little while, but it’s been such a great discussion and I have one last thought! I was telling my sister about the Stolen Scream video and discussing some of the finer points of copyrights, copyright registration and funny beliefs people have about art.
In fact, I’m finding that artists seem to be some of the worst offenders! Someone tweeted this to me the other day in response to a tweet conversation I was having with another artist about why artists decide to copy others when they are creative in their own right. This third artist said,
Haven’t you heard this? ” lesser artists imitate, great artists steal”?
They went on to point out that Manet or Monet (I can’t remember which) was apparently the master at it. Well if artists go around quoting that and believing that the way to be great is to steal, we are all in trouble.
So there is blatant copying and then there is the whole “derivative work” – if you change a certain percentage it’s considered new, etc. That gets dicey as well so we aren’t going to go down that rabbit hole today.
Today I want to put copyright infringement into terms the average person can understand: lunch. More specifically – sandwiches.
What do you think? I encourage you to come up with your own analogies and post them to YouTube as well. Maybe we can educate the masses by amusing them and talking their language. If you do, let me know and I’ll share it here too. Deal?
Here’s to your creative success!
– Tara Reed
Cheryl Hodgson once again provided valuable insights into the legal issues surrounding 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!
The August Ask Call will Answer your Legal Questions about 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.
Copyright for Artists eBook by Attorney & Jeweler Sarah Feingold, Esq
Have you ever noticed that sometimes you are just in sync with things? Last week an artist asked if I had any written information or eBooks about copyright law and registering copyrights. I answered, “Unfortunately, no.”
Not four days later and I get an email from Sarah Feingold, telling me about her eBook called… Copyright for Artists. Talk about timing!
I went and bought a copy at the introductory price of $14 because I didn’t want to recommend something to you that I had never seen. (It’s just not how I operate.) A legal book that can make me laugh is a hit in my eyes. Sarah was a jeweler and wanted to protect her creations so what did she do? Became an attorney! That amuses me. She is saving us from years of study by creating the eBook – thank you Sarah!
After looking the eBook over, I will be adding it to the website and can put my “Tara Reed stamp of approval” on it for what that is worth to you. It has a great explanation of the legal terms and differences between copyright, trademark, patents and more as well as detailed information about what the different sections of the online copyright registration system are asking for. (It is a bit confusing at first.)
To learn more about the legal issues of art and copyright registration, check out Copyright for Artists by Sarah Feingold, Esq.*
Here’s to your creative and legally protected success!
– Tara Reed
FTC disclosure: These are affiliate links and I will receive a commission if you decide to make a purchase. Thank you for your support – commissions help me have time to keep blogging!
Branding the Artist: Added Protection to Copyright for Art?
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
Need your input please! Legal issues you'd like to hear about…
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.
A gift for artists: One hour "Ask" call replay with attorney Cheryl Hodgson is available for FREE!
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.)
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