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
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.
Intel on when to draw the line on infringement suits – guest post by Cheryl Hodgson
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.
Click here to read the full article…
Here’s to your creative and legally protected success!
– Tara Reed
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.)
QUICK! Free webinar about trademarks is Tuesday night…
I was just emailing Cheryl Hodgson, an attorney I met a few months ago, about working with me on some copyright / contract information for the ArtLicensingInfo.com site. We are going to chat in person in Las Vegas on Tuesday so stay tuned for more info soonish…
BUT… she is having a free webinar THIS TUESDAY, June 2nd, about trademarks. I have to finish packing but head here and see if it interests you….
http://www.brand-aide.com/webinar_june2.htm
– Tara
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