Artists’ Intellectual Property Builds Art Licensing Business

Artists focus on their creativity, their technique, and their product. If, however, you are looking to license your art, you should be equally focused on protecting your intellectual property. Your copyrights and trademarks are the lifeblood of your art licensing business and the foundations for all your branding initiatives. In this blog post, I answer some common questions artists ask about copyrights, trademarks, and branding.

Q. What are intellectual property, copyright, and trademark?

To start, let’s define intellectual property. You cannot protect an idea in the United States. American law grants limited monopolies (or ownership) only of expressions of an idea in the forms of copyrights and trademarks. I say these rights are limited because there is an end date for your rights, but during their duration, copyrights and trademarks provide crucial tools to prevent infringement and build a brand.

Your copyrights protect the fixed expressions—your artwork itself, your artist statement, your portfolio design, your website, etc. Your trademarks, in most instances, consist of words, names, logos, and/or slogans that identify you or your company as the single source of the goods or services you market.

Q. Which is more important copyrights or trademarks?

Both copyrights and trademarks are crucial. Some artists focus exclusively on copyrights because these intellectual properties protect their artwork, and their artwork provides direct monetary value. I highly recommend, however, that artists also develop trademark portfolios. Trademarks give an air of legitimacy to the licensing business, showing they are serious about their art licensing efforts and protecting their brand. Your trademarks may consist of your company name, a slogan that you use consistently to describe your business, art series names, character names (as the names are used on products), or a logo for your company.

Q. How do I protect my copyrights and trademarks?

You have common law rights, meaning rights that a court would recognize, as soon as you publish your artwork or start using your company name. To strengthen those rights, you should register with the United States government. Registration affords you certain financial benefits in the event of an infringement and also allows a court to recognize your rights more easily, with the burden of proof resting on the infringer to show he is innocent.

The topic of when to file copyrights registrations has filled many chat rooms, and you will find diversity of opinions. Typically, however, artists file their copyright registrations quarterly, but they may file individually for certain important works in their portfolio or before they show certain works to potential licensees, even before the quarterly collective registrations. While it is not required on your work, the copyright symbol is a powerful device for preventing infringement. It puts the world on notice that you are claiming rights in your artwork, and you are serious about enforcing those rights. Your copyright legend should include the copyright symbol, the person or entity claiming ownership, and the year of publication. Unless you have severe space limitations that prevent you from using copyright notices, you should require your licensees to include them on licensed products and perhaps even packaging.

Unlike copyright registrations, obtaining a trademark is a lengthy procedure. While it is tempting to try to navigate the United States Patent and Trademark Office (USPTO) on your own, artists generally do better using an attorney who specializes in this kind of work. (Click here to read about the dangers of “Do-It-Yourself” trademark applications.) The first step to obtaining a trademark is conducting a comprehensive search of the marketplace to determine the mark’s availability. This is not a Google search or even a search of the USPTO records. Instead, your attorney will work with a qualified search company that searches databases of all registered and unregistered uses in the marketplace, including social media references. Your attorney will then analyze that search to determine the level of risk associated with using the trademark and the potential success of registering the mark with the USPTO. The search will also serve as proof of your good intent should you receive a cease and desist letter from another trademark owner claiming a likelihood of confusion.

Once you have decided to use a trademark, it is important that you let the world know that you are claiming ownership by at first using the TM symbol. This symbol means that you are claiming trademark rights in your area of usage but that the trademark is not registered with the USPTO. Once you obtain a registration, if you take that step, you can change the trademark protection indicia to the Ò, but you cannot do that until you have that full registration. An application is not sufficient. The application process, itself, is complex, and your trademark counsel can guide you through it.

Having obtained a trademark registration, you will have certain maintenance filings to keep the registration alive. Again, your trademark counsel should advise you of required deadlines and forms of filings. You, as a trademark owner, then need to use your trademark consistently and appropriately, and you have an affirmative obligation to police the marketplace to prevent infringements. Failure to pursue infringers could result in a loss of your rights.

Q. I cleared my company name with my state before incorporating. Why do I have to conduct a full trademark search?
Incorporating with the state does not confer trademark rights. A corporate name is simply the name of your business, but that may not function as a trademark in the marketplace if you have not made use of it in that manner. So it’s important to consult with trademark counsel to understand the different kinds of names your business may want to use. If the name of your business is Acme Art, LLC, that may not function as your trademark if you are marketing art under some other name, for example “Acme Adorable.” It is the word mark that you use to identify your goods and services in the marketplace that functions as a trademark. This may or may not be your company name.

Q. Should I use my personal name as my trademark?

Unless you have a distinct personal name, you will likely have limited rights in your name. John Smith as a trademark does not make too much sense. In addition, if you sell your business, you may be in the strange position of having sold rights to your own name and have certain situations when you cannot use your name. If you are a practicing fine artist with an established career, your name may add huge value to your licensing initiatives. If, however, you are an unknown trying to break into art licensing, it might be better to develop a business name or slogan and start with those.

Most artists are doing a bit of both—fine art and licensing. So then it’s a judgment call. Some artists want to set up a firewall between their fine art and their licensing with different branding and different trademarks. Think, however, of someone like Thomas Kinkade. He associated himself with the phrase “Painter of Light”. Both his name and the phrase are trademarks. That might be a good way to help launch a licensing career. In this way, your name becomes associated with a phrase that represents your work and expresses who you are.

Q. What is a brand?

A brand is not a legal term; it’s a broad reference to a company’s trademark and other intellectual property together. So when we think of the brand Coca-Cola—we think of bottled carbonated beverages, but we also think of other intellectual property too: their famous trade dress (the distinctive shape of their bottle), the name of the product, and the copyright that may go into some of their art. We also think about the experiences they offer consumers through social media and other marketing efforts. The Coca-Cola brand is really synonymous with a set of values and a world outlook as much as it is with soda.

Artists should think about branding. Your brand is not just your artwork; it’s your whole package. It is what you make, what you stand for, and how you promote your message on social media and the Internet. Is your artwork inspired by or connected with certain charitable causes, political beliefs, or lifestyles? Are you known for producing artwork that reflects, for example, Southern hospitality, a coastal lifestyle, or commentary on technology? Those messages create your brand. A unified brand image will help your artwork sell itself. A brand creates a niche for your artwork, and a licensee in search of that messaging will know to come to you.

 CONCLUSION

Of course, your licensing potential rests fundamentally on the quality and originality of your art. Nonetheless, securing registered copyrights and trademarks increases the value of your licensing endeavors and the strength of your art portfolio. In the next calendar quarter,build a business plan for developing, maintaining,and protecting your trademarks and copyrights. Let me know if that plan helps you to build a more cogent art licensing business.

Want to read more about the business and legal aspects of the art licensing business? Click here.