But for many artists, understanding the mechanics to legally protect their work on their own can be daunting. Many turn to blogs and other online communities seeking guidance. The Internet has lots of speculation and a mix of both good and bad information. More to the point, we haven’t seen nearly enough Beginner Guides designed for artists made available. This article seeks to bridge this information gap.
The Building Blocks - Intellectual Property Protections Available
All too often we’ve heard artists start and end their discussions with copyright. It’s true that copyright is a great way to protect some types of art. But sometimes copyrights don’t apply or aren’t the best choice. Even so, it’s wise to consider employing multiple forms of IP protection. Let’s identify the types of protection available:
- Copyrights - To put it simply, copyright law protects creative expression. What its expression? It’s how a person expresses themselves. Copyrights usually exist in many items, like paintings, drawings, photographs, books, songs, plays, computer programs, videos, and movies. It’s a good idea to register a copyright because it’s a necessary first step to stop others from using your art without your permission.
- Trademarks -Trademarks are intended for customers to identify the source of goods and services. Companies typically use Trademark law to protect their brands and logos and artists can also use them. For example, some writers use register a trademark to protect their pen names. Other artists might also use trademarks to protect the name of a “line” or series works.
- Trade Dress - Some artists have used a special part of trademark laws – specifically an area called “trade dress,” to protect the look and feel of their work. Trade dress is particularly well-suited for artists who have a unique style they consistently use. What do a Jackson Pollack painting, an Alfred Hitchcock film, and a Coco Chanel classic flip bag have in common? When others see those works they “just know” it comes from these artists.
- Design Patents - Like trade dress, design patents can protect the ornamental appearance of some art – usually art turned into mass produced physical objects. Design patents are great options to consider for woodworkers, glass blowers, and pottery-makers.
- Utility Patents - Often overlooked are creative works that use a combination of engineering, science, and artistic expression. These “fields” are certainly not independent of one another and blending all three usually generates amazing results. Utility patents protect the “usefulness” of innovations and inventions. These types of patents also protect what other forms of IP cannot, namely functional aspects. In order to receive protection, the new product must solve a “problem” that exists in a new and unanticipated way (it’s “state of the art!”).
- Trade Secrets – Is it a safe assumption that only you know how to make your art’s most appealing feature(s)? This is what makes the art most valuable because only you - and perhaps a few assistants who’ve been sworn to secrecy – know how to do it. Trade secrets are ideal in these situations. Nexio attorneys can help you create contracts and procedures to keep it secret and help stop the problem if it’s been leaked.
Two Artists--Two Different Sets of Protection
Let’s take two well-known artists’ 1950s works as examples: Norman Rockwell’s “At the Doctor’s” illustration and [Charles and Ray] Eames’ Lounge Chair. To make the examples more relevant, let’s assume that the artists made them this week. What could each have use to protect their respective works?
First, let’s start with Rockwell’s illustration. This sketch is an ideal candidate for copyright. It’s also possible Mr. Rockwell could have applied for trade dress protection, because the style of his work – and specific characters – could have been used across multiple illustrations. In addition, as Mr. Rockwell’s illustrations were commercialized and licensed for used on novelty items – like puzzles, posters, and other items – Mr. Rockwell’s name could be trademarked as well.
Second, let’s look at the Eames’ Lounge Chair. Interestingly, this design is not ideal for copyright, largely because furniture has so many functional features. Rather, it is a better candidate for a design patent and/or trade dress. The name “Eames” can be trademarked as well. If the Eames chair also had a very special feature that helped solved a problem (like allowing one to read for longer periods), by forcing a user to sit in a specific manner, then a utility patent might be an option as well.
As one can readily see, not all art is ideal for copyright protection.
IP and Business Concerns
We can help you through all stages of your business and IP matters including incorporation, counseling protection (during concept/development), registration, licensing, monetization, enforcement. Our comprehensive approach is designed to help you maximize the value of your IP and minimize the related risks.
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