How Trademark Law Can Protect Your Visual Art: Stop Signing Your Name, and Start Branding Your Art!
For every artist, there comes that moment when the work of art is finished and you can finally exhale. You take a step back and you look upon your now-completed work – the culmination of endless nights awake and working – for the first time. You find yourself smiling. Then you dab your paint brush into that damp towel one last time, preparing to run a familiar stroke along the edge of the canvas...triumphantly, you sign your name. Your signature marks your territory; it lays claim to your most intimate reflections. It is a crucial addition to your art. Art within art. You deserve congratulations for being an artist, and you deserve thanks for contributing your creations to our history. But let me to give you one piece of advice... Stop merely signing your name, and start branding your art. Your signature is much more than a source of personal gratification. It is a source of revenue and source of protection that all artists – including you – must take advantage of. As an artist, you have the right to claim your art as yours. After all, you are the one who created it, the one who dreamed it. Your art is everything to you. You wouldn’t allow someone to walk into your studio and steal your paintings right off the wall, would you? That’s what I thought. Copyright and trademark laws were developed specifically to protect artists and art. It is time to understand those laws and to learn how to maximize on their benefits. Under copyright law, your artwork is protected against unauthorized copying. But that only lasts for the life of the artist plus 75 years. Another facet of copyright law provides you with the right to attribution, which affords you the right to have your name on your art or to prevent non-authors from putting their names on your art. But that only lasts for the artist’s lifetime. Unfortunately, that means that copyright law will not protect your name or signature when you’re dead (a time when your art can be the most valuable). But don’t despair – trademark law is here to help. Trademark law protects an artist’s name, signature and logo. And it can last forever. That’s why it’s vital that you take a few smart steps now, so that you can take care of your art for the future. Once you own a valid trademark, you can begin enjoying its many benefits, such as a legal presumption that you are the trademark owner, a legal right to enforce your trademark against anyone who uses the same or confusingly similar mark, and even a right to have counterfeits of your work seized and destroyed by customs. Signatures on Art: Minimal Protection Every artist’s signature communicates a great deal of information to art consumers. Not only does it tell art buyers who the creator is, but it also reveals the quality of the art, the history of the art, the origin of the art, the price of the art, and the investment return the art will provide. Because of the powerful messages relayed by your signature, the law regards it as a protectable trademark . . . sometimes. Regrettably, it is difficult and costly to obtain a trademark registration for your signature unless you are famous. The reason for this obscurity is that the Trademark Office does not favor granting monopoly rights for surnames. If fictitious artist John Smith signed his oil paintings as J. Smith, and attempted to register his signature with the Trademark Office, the Trademark Office would likely refuse his application because Smith is a common last name. It would therefore be imprudent to prevent all other Smith-named artists from using their own last name on their art. If your last name is something as common as Smith, then you might even appreciate the reservation exercised by the Trademark Office. But what if your last name is unique? In order to overcome a surname rejection like the one described above, you will need to prove that art buyers readily associate your name or signature with your specific artworks (versus artworks belonging to artists with the same name or a similar name). For the average artist, this will be a hard fact to prove because you will need to use consumer surveys as evidence, a process that is extremely costly and time-consuming. If you are a famous artist, then you will have an easier time proving this association because even those working at the Trademark Office would recognize your name. For example, renowned artist Marits Cornelis Escher was granted a trademark right to his signature for M.C. Escher without any extra proof of consumer association since he was already famous when his estate applied for the trademark. But even if you were born into a common last name, you should not risk losing such powerful trademark rights. There are several ways to avoid dealing with a surname rejection altogether. For instance, since a pseudonym is not a surname, it is somewhat easier to register a pseudonym than your real name. One artist who applied for a trademark – in her pseudonym Ysabella – was approved simply because she used a pseudonym. Another option is to use a single name only – e.g., Smith – rather than a first initial and last name combined. The difference is that a single name will not be regarded as a surname since it can be argued that it is merely a first name, nickname, middle name, etc. Picasso, whom you may have heard of, signs his paintings with his last name only. Logos on Art: Maximum Protection Though it may come as a surprise to you, the most assured way of avoiding a surname rejection is, simply, not to use your name at all. Let me explain… The stronger your trademark, the more you and your art will be worth. The strength of your trademark depends on the distinctiveness of your mark. The more unique and arbitrary your mark is, the broader your protection will be. A logo will always be more distinctive than a plain signature. So, no matter what stage of your art career, switch your current habits to a more rewarding strategy that involves branding your art. Although a logo is useful in obtaining full trademark protection, you do not need to abandon your signature altogether. If you are a habitual artist, you can continue to sign your name on your art while simultaneously branding your art with a logo. This dual protection will certainly tie up any loose ends and ensure maximum protection of your art for years and years to come. Some artists prefer to brand with a monogram, which is formed by combining the initials of a name, in which the last name initial sits in the center and is in larger type. But tradition does not need to guide the modern artist. Instead, you can design a monogram that defines you. Step outside the box and craft a fanciful, decorative, and contemporary monogram. This shouldn’t be too much of a challenge; after all, you’re an artist! Meanwhile, other artists have ventured far away from history and painted their own legendary tale . . . with logos. Unlike monograms, logos allow you complete flexibility in design because you don’t have to use any letters. Just make sure that your logo is distinctive – it can’t already be in use by someone else; it can’t be the same or similar to another artist’s logo; it can’t be generic or common to the art industry (i.e., a paint brush). Envision your logo as a piece of art within itself. In today’s world of Coca-Cola and Google, logos form the focal point of the business world. Your art is your business. You are the master, working hard to create something important for society, for the world. So brand your art with your soul. Then, when you’ve passed into artistic immortality, your logo will be the only living connection between you and the art you left behind. Simple Steps Toward Branding Your Art Today: As you may already know, the explosion of online media sharing sites has affected the art world in strange ways. For one, it’s easier than ever to access art without ever sharing physical space with it. Art enthusiasts no longer need to fly to Paris, stand in line, and peek over the tall man’s shoulder just to squeeze in one tiny glimpse of the Mona Lisa. The internet brings art directly to the viewers. But it’s dangerous, too. Because the internet also provides direct access to potential forgers, placing art buyers in questionable positions. Art consumers rely heavily upon your brand. By protecting yourself as an artist, you will in turn protect your devoted fans from falling victim to counterfeiting schemes. Consequently, you will gain their trust and loyalty forever. Follow these simple tips to ensure that you protect your art for the future: • If you sign, sign the same way each time. • If you want to brand, design an arbitrary and fanciful logo or monogram. • Sign or brand every single work of art. • Date every single work of art. • Sign or brand on the visible (i.e., front) side of the art. • Embed your signature or brand into your art. • Finally, register your signature or brand with the Trademark Office! Written By Nada Alnajafi Intellectual Property Attorney Pivotal IP, PC