U.S. Art Law

Protect What You Create!

(How to safequard your artwork from thieves, pirates and other unscrupulous industry players)

My name is AttorneyScott and I practice in Los Angeles, California, USA.

YTWWN has been kind enough to allow me to post on the legal system in the United States and how it applies to artists and their work.

My firm specializes in representing artists and companies in resolving the disputes that arise in the creative industries. Artists are often unaware of what their rights are under the law and face obstacles in enforcing their rights when someone infringes their work.

One of the most common problems we encounter is the theft of graphic artworks. Here’s a common scenario:

Scenario #1: An up and coming, artist-driven brand provides a line sheet showcasing its new designs to a potential buyer. The buyer passes on purchasing goods from this company, instead opting to simply steal the art and reproduce it as part of its own line that the original artist finds later finds for sale.

This happens far too often in the industry because artists are intimidated by the larger companies and think it will be too expensive and too much of a hassle to go after the infringer. However, protecting your art isn’t as difficult or expensive as you may think, and stopping someone else from exploiting your creative expression for their own profit is a cause worth pursuing. This week we will briefly discuss registration in the United States. If you have any questions, please feel free to post them in the comments or contact me directly. You can also check out my firm’s website at www.donigerlawfirm.com.

1. Register Your Work

Filing a copyright registration for your work is the first step in protecting your rights as an artist. In the United States, once you have created something that is tangible (such as drawing a picture, taking a photograph or sculpting a statute), you automatically have what is known as “common law” copyright protection in that work. This means that if you can prove you published that work by distributing it to others, and someone copied it, you can recover damages from this copier.

However, with “common law” protection, you are only allowed to recover what are known as actual damages (the money the copier made off of the copies and any money lost by you as a result of the copying). Further, you will still have to file for a registration before you can file a lawsuit against the infringer, but will not get the benefits of the registration in terms of damages.

If you do register your work with the Copyright Office, and it is copied by someone after the registration, you can recover increased damages from the infringer, including your attorneys’ fees. The Copyright Office does this to motivate people to file their registrations and maintain a clear record of who is creating what.

Filing a copyright registration is not complicated, and carries a relatively nominal fee. The protection you receive is more than worth the amount – it will be difficult for someone to tell you that they created a piece of art first if you have a registration. It will also give you peace of mind knowing that there is a public record of your creation of a piece of art, especially if you are distributing it to multiple parties in search of buyers, investors or collaborators. The bottom line is if you register it now, you will have less worries in the future. It’s a good move.

 

[DISCLAIMER - The above is for informational purposes only and does not create an attorney-client or other relationship between the author and the reader. In reading this blog, you agree that the information on this blog does not constitute legal or other professional advice and that no attorney-client relationship exists. The information herein may not be complete or accurate. Obviously, do not consider a blog post, even one written by me, as a substitute for obtaining legal advice.] All Rights Reserved.

 

60 Comments

  1. buy a used renault megane 12/19/2012 7:29 pm

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  2. Cynthia 07/28/2011 7:00 am

    I used to work as a textile designer in LA, a market which is rife with theft of ideas. The industry standard (derived from U.S. law, I believe) was that a “knock-off” had to change elements of the original design 15%. We were told in one production studio to change them 20% to be safe — but who’s to judge? My textile professor was often employed as an expert witness in infringement trials to point out to untrained eyes exactly what had changed between two very similar designs. Problems would also arise when designers would purchase pieces of antique printed fabric and then copyright the design for their own clothing line. One year ownership of a very popular textile design from the 20s was claimed by a number of different designers simultaneously. In the instance of clothing design, everyone is familiar with the practice of those who go to designer shows, sketch the designs, and get cheaper copies out in the marketplace almost overnight. Either the law covering this is not strong enough or clothing designers just don’t think lengthy litigation is worth the expense and time when they have to hustle to get the next season’s line out. This does really hurt smaller, home-based designers selling online, as the woman above mentioned.

  3. AttorneyScott 06/09/2011 6:46 pm

    Back from trial, and the appeals court, and ready to respond to your legal queries:

    Steph4Cs:
    A copyright registration costs 35.00, and covers the entirety of your work. If you want to copyright more than one work under a single registration, the works have to be either unpublished (you haven’t provided them to anyone), and part of a collection, or published at the same time. In other words, if you published five related books at once by offering them for sale at the same time, you can potentially register those five as a single work.

    Bella:
    The use of the trademarked or copyrighted material of another is generally against the law. However, there are a few exceptions, and one might apply in your case. For original works of art that comment on or transform the protected material, there is a fair use defense. I would need more information regarding your product to respond further.

  4. Bella 02/28/2011 4:23 pm

    Hi Scott,

    My question is a little different but I’m hoping You can help me with it as I am finding it difficult to discover the answer. I’m a artist that etches designs into stone coasters and I advertise custom designs are welcome. However, I am often asked to do popular designs that belong to someoneone else. For example, a sports team like NY Yankees or a college logo.

    Can I do a logo as a special request for a customer or is this still considered copyright infringement? I am thoroughly confused as many many artist do this but it is not clear to me that it is legal.

    I’ll apreciate it so much if your can clear up this issue for me.

  5. Corina 12/13/2010 12:22 am

    First off, thank you so much for giving us advice. It’s highly appreciated.

    My question is this, I have a line of t-shirt designs that I’ve made and I’m in process of creating a clothing company to market them. What is the best route to go in protecting these ideas? Do I need to copyright every drawing each time a new idea is created? As an example, what would the company “Life is Good” have to do for every one of their logos? We don’t want to get crazy about this but do want to protect an idea that we believe to be very, very good.

    Thank you so much!

  6. Steph4Cs 11/15/2010 7:31 pm

    Attorney Scott:

    I write short stories and novels, and have developed a moderate fan-base. A number of people have recommended that I try to get my work published rather than constantly giving it away for free via self-published e-books and Facebook notes. Recently, I decided to beard the dragon and publish online using Smashword.com and other such media. Just before I began uploading, someone dear to me mentioned that I might want to Copyright my work.

    Sir, I am at that point where I believe I need to start protecting things, but I can’t afford a Copyright for everything I have ever written and will continue to write. I am not a one book a year author. Is there any way to protect all of my work in their different genres, so that I don’t have to register each one?

    I eagerly anticipate your response.

  7. AttorneyScott 10/14/2010 1:41 am

    Fall is in the air, as are questions regarding art, design and law. Here’s the latest:

    John: Ideas are not protectable, only the expression of an idea. That is to say, if you want to create a site that exploits an idea in a certain way, such as rating professors, you are free to do so as long as you do not attempt to copy the look and feel of the other site that is exploiting the same idea.

    Note, though, that certain portions of the code used to program websites is subject to copyright protection, so if you are copying that code in order to obtain the same appearance or functionality, you may run afoul of the copyright laws. There is no percentage by which you can change the code or design in order to evade copyright protection. You should work to exploit the idea in your own way, and achieve the functionality you need without using the code or expression of another party.

    Patents and copyrights are two distinct areas of the law. If the site has a patent for certain features of the site, you are not able to exploit those features without a license. There are many resources on this topic, but it would be best to consult with an attorney given the complex nature of the law in this area.

    Garibaldii: With friends like those… Well, you have a whole arsenal of weapons with which to approach this situation. As the artist and creator of the trademark, you own the material. If they want to exploit it in any way, they would have to obtain your consent. If they use it without your consent, you will have a claim for damages, such as the monies they make by selling product bearing your design. It may be the case, though, that you agreed, either expressly or impliedly, to allow them to use your work. If that’s not the case, and you can prove ownership and lack of authorization, you would have a strong claim.

    Maren: You, indeed, would have a copyright in your work. Copyright protection attaches as soon as you create the work. Once you’ve done so, any use by a third party would infringe your rights in the work. In reviewing the two designs at issue,though, it is not clear as to whether the second design is infringing. Remember, as discussed above, that ideas are not protectable, only the expression of the idea. Clearly, this company has taken your idea of cloud & scissors, but it is unclear whether they have copied your expression of the idea. Given the unique nature of the expression, you may have a claim against the company, but it is a close call.

  8. MarenCelest 09/01/2010 9:27 pm

    Hi Scott

    I have an image (a composite photograph) that was turned into a line-drawing for a logo.
    I have a license through the “creative commons”, the ATTRIBUTION, NON-DERIVATIVE, NON-COMMERCIAL kind of license.

    I had it put on the image after I found the logo.

    Now I assume the graphic designer in question (who no doubt was paid for “his” work) did not copyright his image because he said that “no one can have a copyright on clouds and scissors” which is, obviously, very wrong.

    I know that my image came first and I only found the logo because the company suspiciously contacted me.

    What can I do? I don’t have money for a lawyer.

    This is one of many cases I know of where a small artist has been ripped off by a business in Hong Kong. I’d like to stand up to it. I do my work for FREE and for FUN, not for commercial branding.

    Thank you for helping people like me.
    Maren

    http://www.flickr.com/photos/jandmimages/4949647410/sizes/z/

  9. garibaldii 08/30/2010 3:44 am

    About twelve years ago I made up some logo and website designs and original artwork for a buddy who was trying to start up a company.He told me he didnt like them and was going with someone else.The company tanked,but they are now trying to start it up again.Problem is they are now taking my artwork and have trademarked it as theyre own and claim they couldnt remember where they got it from,even though just a couple months ago they asked me for an updated one.Theynow are talking about selling my design on tshirt,stickers and pretty much everything pertaining to theyre company.Some friends huh?I do have all the original files and I usually hide my signature in the artwork.Is there anything I can do?

  10. John 08/06/2010 12:13 am

    Hi AttorneyScott,

    We are developing a website that has many similarities in the market. So, I am getting confused about what are we allowed to or not allowed to use regarding ‘design’ and ‘function/features’.

    Could we have a site that has all of the same ‘function/features’ (for example: ratemyprofessor is the original but we would make a site that also allows students to rate their professors, using the same rating system, organization, etc.)?

    If the ‘function/features’ are legal how different does the design have to be?

    Is there any extensive article or resource that clearly explains exactly to what extent aspects of a web-site need to be different for it to be legal?

    Finally, does it matter if they have a patent? (any resources to learn more about patents on website features / business model would be great!

    Thank you for your time!

  11. AttorneyScott 08/05/2010 9:27 pm

    A number of interesting questions, and a little bit of vitriol, on YTWN this time around. Let’s go:

    AngryShutter: If you entrusted your photographs to a third party, and that third party has failed to maintain them in a reasonable fashion by losing them, you would have a claim for the value of the photographs (subject to any contract you have with the org. indicating that org. will not be liable in the case of loss or theft; these are fairly common). If you later see your photographs being exhibited or otherwise exploited, you would still be able to pursue a case so long as you registered the designs before the suit was filed.

    tOm: Your comment touches on two important issues: the idea/expression dichotomy, and fair use. In general terms, the idea/expression dichotomy holds that there is no protection for ideas (they are “as free as the air,” as one judge famously proclaimed), but there is protection for an expression of an idea. For example, the idea of a flower can be used by anyone, but if you were to copy someone else’s expression (painting, drawing, or so forth) of a flower, you’d be liable for infringement.

    As for your Youtube reference, it is true that videos are blocked for using a copyrighted work. This is because an artist is usually be allowed to control what is done with their work; however, the law does allow the use of another’s work as long as the use is “fair.” The definition of “fair” in this context is vague, but it generally allows use of the work for criticism, education or comment, or in a way that won’t harm the artist’s rights in the work.

    R0tti: Your question raises a number of interesting copyright, trade dress, and trademark issues. Generally, a trademark (such as the Subaru logo) can be used by another if it’s used only to identify the product, and doesn’t imply an association or sponsorship between the company that owns the trademark and the product upon which it is used. In the case of the t-shirts, this exception probably would not apply. The trademark (or trade dress in the case of the appearance of the automobiles) owner would have the exclusive right to create t-shirts bearing the images of the automobiles. In fact, many companies such as Ford and Harley-Davidson sell merchandise bearing their autos and bikes. Your case would probably turn on how similar your paintings of the cars looked to the actual automobiles. If they’re easily identifiable as the trademarked product, there might be infringement.

    Ad Guy: I may be many things; but, stinky? Ouch.

  12. Ad Guy 07/29/2010 5:46 pm

    I cant believe the rape that Artist go through in there life, look at this, Agents take our money in the acting and music field, Galleries take our money in Art Shows, and now these stinky lawyers want our money to protect our ideas, you should be paying us to share our work, your lucky were not greedy or the world would be a really gray and boring place.

  13. R0tti 07/15/2010 8:43 am

    Hi AttorneyScott,
    First, thank you for all of the interesting discussion and access to your hard won knowledge.
    My question is this:
    Can an artist do a portrait of a car for a client without getting licensing rights from the auto manufacturer?
    I know Ford is very zealous about protecting their trademarks, copyrights, trade dress and emblems.

    I have been contacted recently to draw portraits of Subaru’s for a client who wants to own the copyright on the art so he can make the art into T-shirts to sell.
    He says that he has been leaving off any specific trademarks (Subaru’s emblem & name) and has not been challenged as of yet.

    Would my art of the cars be considered a derivative, an infringement or would my art be able to copyright protected by me?
    My art is of a cartoon/ caricature nature.

    Thank you,
    Brian

  14. Tom Heine 07/10/2010 7:48 am

    Tell me –

    1) who can claim that s/he got an idea simply from his own imagination?

    2) is this copyright act not also something that feeds the (lawyer)system?

    I’m not talking about copy/paste, I’m talking about an evolution of style and people capitalizing on art, which mostly is to be seen in a cultural context of society and time.

    For example: How many video clips are currently getting muted or blocked altogether on YouTube, where people used music in a completely non-profit context? But even in a commercial context these clips are free ads for the companies holding the rights to the tracks.

    How many artists do exploit the public domain and turn it into their personal profit?

    As much good I see good for artists being able to protect their “intellectual property rights” – I see similar potential of staggering and choking cultural evolution.

    However: I dearly thank you Attournesy Scott for sacrificing your time and knowledge, providing free advice to artists and intellectuals. Wow.

    tOm

  15. AngryShutter 05/15/2010 8:09 pm

    Hi! Just want to ask a question about the rights, I submit my photo’s to an organization who is going to exhibit the photo’s to one of the event’s here in my area, but he said to me that my photo’s are missing from their custody. So, my question is, do me, a photographer, has the right to claim the damages i’ve occured for the photo’s i’ve gave the organization for exhibition, n how can I act if I found out that my photo’s were being used, because I haven’t registered a copyright of those photo’s yet.

    Thank you in advance :D

  16. AttorneyScott 05/06/2010 7:47 pm

    It’s been a while, so let’s get to it:

    KD – Jewelry designs are certainly subject to copyright protection. Even if you use component material from the public domain you are entitled to protection to the extent you arrange that material in a creative way. If someone takes your manner of expressing that material, they have violated your rights. You can retain an attorney to contact the violator, and demand that they cease and desist in selling the pieces that have stolen your expression.

    A-man – your proposed business plan poses some risk. Copyright protection for an original work lasts much longer than 80 years, and if you create a derivative work from someone else’ work without their permission, you may be found to have infringed their rights. Of course, you can be inspired by the vintage ads to create your own ads using the ideas embodied in the ads.

    Laos – the general rule is that you can register the collection under one registration as long as it is a line that is first offered for sale or sold together. The rules can get complicated, but this type of registration offers the same protection as individual registrations.

    Adam C – actually, you are able to register a work before it is published. Obtaining such a registration, and ensuring that the party to whom you are pitching the game agrees that it will only expoit/create the game with your involvement, is key to protecting yourself. Unfortunately, many companies are wary of such agreements, and will not agree to any conditions for the pitch meeting. In the end, ideas are difficult to protect as they are not covered by copyright, and must be contractually protected. Registering a detailed version of the work, and attempting to gain an agreement such as the one described above, is your best bet.

    Anonymous – yes, you obtain a common law copyright as soon as you fix your work in a tangible medium – that’s lawyer talk for as soon as you create it, it’s yours. To file a lawsuit, though, you have to first obtain a registration from the Copyright Office.

    Louisa – this is an estate question, but I can tell you that as long as the rights were bequeathed to you, and not transferred to a third party, you would be able to exploit those rights. If you now own the artwork, you would be able to register it and sell prints.

  17. Louisa 05/03/2010 8:07 am

    My mother was a local watercolor artist in PA. She has passed away. We have most of her original works in the estate. We would like to make prints to sell. As far as we know she did not register her work, can we? And then is it legal to sell the prints? For instance what did /does the Wyeth family do with the family art?

  18. Anonymous 05/02/2010 10:09 pm

    I’m somewhat confused on the ‘common law’ rule… would you mind checking and seeing if I have it right?

    Let’s say I draw a picture. I scan the picture into the computer, upload it to some website, and a week later find someone selling the same exact picture online. In this case, I can sue to collect all the money they have earned on selling the piece. However, to do that I need to register my artwork first?

    Thanks a lot for your help :)

  19. Adam C. 03/29/2010 12:02 pm

    Hi AttorneyScott,
    I have spent countless hours creating an original story, build, and artwork for a game that I have been designing. I would like to be able to pitch my work to a big business game company. I have heard many stories of big businesses taking original ideas and running with them, leaving the creators with empty pockets. What steps can I take to protect myself? Can I get my work copyrighted even though it hasn’t been published yet (according to the USCO website a work has to be published before it can be registered for copyrights). What stops large companies from taking a persons idea that is pitched to them and somewhat changing it, then releasing it as their own (Sony supposedly did this with God of War)? Any insight into this situation will be greatly appreciated.

  20. Laos 03/08/2010 8:10 pm

    Hello Attorney Scott!
    Two questions:

    Some years ago I copyrighted most of my t-shirt designs using the “Collection” clause.
    That is, I copyrighted every one of my designs (about 11 different drawings/designs back then) all at the same time, using only 1 form, instead of doing them individually.
    I think I named the collection: “Volume 1″

    Everything went smoothly and I recieved my certification…but now I’m wondering…did I really do it right?
    1.) Are all of my individual designs protected just as if I had registered them one by one (and spent MUCH more money?)
    And if I did … why don’t people do this instead of paying so much money to register one design at a time?

    2.) What’s the difference between registering a collection/series and registering each design separately?

    Thanks!!

  21. a-man 03/01/2010 8:07 pm

    Whats the rule regarding vintage ads? I wanted to take vintage(80 years old) ads, sub out the font, and replace it with my own to look like the ad was originally for an even event I’m promoting. The ads in question are those ubiquitous vintage liquor ads you see posted as decorations in bars, and restaurants. If anyone can help shed some light on the rules here, I’d really appreciate it.

  22. KD 02/11/2010 7:48 am

    Quick question- I’m a jeweller in Canada who uses sterling silver and semi- precious gemstones. I recently came across another jewellery designer in the same city as I, who is outright stealing my designs. She has only been running business for a few months, and started out designing completely different, with drastically different materials- and now literally has many of the same pieces as I, without anything changed. And is advertising to clients this way too. I purchase components from various suppliers and put a lot of thought and time into the design- now she is selling them for half in my own community. After I’ve put the time, money and energy into marketing these designs- they have been in newspapers and on TV. I understand that when I purchase components that artists may have a similar idea, but I have never come across someone who is literally trying to copy my entire line.
    It’s hard enough to survive in this market… this kind of thing is a huge problem to my small one person run company.
    What can I do?? I would love to send a letter or contact her to get her to stop doing this as she is stealing my business in a small community. What are my rights? I am on a very very limited budget.
    Thank you so much!

  23. AttorneyScott 02/03/2010 7:12 pm

    Sue:
    The images you find on Google Images may or may not be covered by copyright protection, as some images are public domain works, and others are works of art in which the photographer claims ownership, and rights. Your safest bet is to obtain the photos you use from a public domain, or stock photo, source, as those are free for all to use without having to first obtain authorization.
    As for the second issue, it appears you have used the logo, or trademark, of another company on your advertisements. Trademark law generally disallows the use of one company’s trademark by another; however, there are fair use and nominative use doctrines that may apply in your case, and render the use non-infringing. Without seeing the ad, though, I can’t address the applicability.
    Indigo:
    Which government are we talking about? In the U.S. it generally takes about 6-8 months to receive your registration, but that number fluctuates wildly from month to month. The good news is, your registration date is set on the date they receive your application, not the date it is granted.
    As for your second query, there is no general rule when it comes to commission structure. Generally, the better known the artist, the more leverage the artist has to negotiate the percentage, and the other terms, of the agreement. The same is true of the gallery – the better known it is, the more leverage it has to impose terms. I would advise negotiating with them to get to a position where you’re comfortable. Narrowing the agreement to say they only receive commission on a sale if they provide the lead is very reasonable, but it will have to be negotiated.

    Thank you both for your very thoughtful questions.

    Best,

    Attorney Scott

  24. Indigo37 01/15/2010 7:39 pm

    Hi AttorneyScott, I have two questions:

    1. I registered a copyright for a painting with the government about a year ago. I have still not received any confirmation. How long does this usually take?

    2. A gallery just sent me a contract for showing several pieces in a group show. One of the stipulations is that any art I show in the group show will be theirs to sell for one month after the show ends (they get 40%). I feel that they should only be entitled to that if the lead that sells the art actually had something to do with the show or the gallery promoting it, and not if it’s a sale that comes from a totally unrelated event (say someone happens on my website or a friend comes over and sees it at my house). I am considering changing the language of the contract they sent me to reflect that. What is the most common rule here?

    Thanks very much!

  25. Sue Powell 01/06/2010 3:59 pm

    I do flyers for people and I have used pictures off of google pics what are the laws for creating flyers with pictures of random things from internet and where should I go for pictures to use for flyers? Where I wont get into trouble? Also another question my boss is doing a raffle for a gaming system and we have advertised that on flyers and billboards can he get into trouble for that? We put the logo of the gaming system on the flyers and billboard

  26. AttorneyScott 11/06/2009 9:11 pm

    Jenya:

    While you are unable to copyright the overall design – silhouette – of your garments, you are able to copyright the two-dimensional pattern – textile design – that appears on your garments. To do so, you would file a visual arts copyright registration with the USCO.

  27. Jenya 10/13/2009 9:06 am

    AttorneyScott, I sell handmade clothing online. Should I copyright my pictures or is there a way to copyright the design (yes, they are all original, nothing is created from patterns). Thank you for your time!

    Jenya.

  28. AttorneyScott 08/19/2009 8:50 pm

    Jhn:

    Unfortunately, you are incorrect. To avail yourself of statutory remedies, such as statutory damages, or attorneys’ fees, you must have a registration. You are correct in that protection attaches as soon as a work is fixed in a tangible medium of expression, though I don’t think anyone was attempting to imply otherwise.

  29. jhn 07/30/2009 8:00 pm

    “Common law” copyright is a nonsense term. Original works of authorship have automatic statutory protection as soon as they’re created.

  30. AttorneyScott 07/21/2009 12:15 am

    Angela: A good rule of thumb is to not use the work of another unless you can verify that it is a public domain/open source work. Even though you may have “modified” the work, it may still be an act of copyright infringement unless the modification is so great that the original work is no longer recognizable.

    Anonymous 1: I’m sorry, but I do not understand your question.

    Anonymous 2: I apologize if I am coming across that way. I appreciate your feedback, though.

    Diane: Thank you for your kind words.

    -AttorneyScott

  31. Diane Stanziani 06/05/2009 9:04 pm

    Your Awesome!!!!!!!! I’m amazed that someone of your calibur would take the time and care enough to evaluate and respond to our questions. I can’t thank you enough.

    Sincerely,
    Diane
    moxy62.com

  32. Anonymous2 05/22/2009 12:49 am

    Why does it matter who created what? in the end we’re all artists. It doesn’t matter. As long the original artist and the copying artist both acknowledge where the original painting came from and the copying artist has a valid or artistically important reason for using the work, it shouldn’t matter. Your ego shouldn’t be so big and boisterous. We’re all creators and artists.

  33. Anonymous1 05/12/2009 12:09 am

    Thank you for the information AttorneyScott. In regards to my first question I was wondering whether the applicant has to be of a certain age?

  34. LM Schlumpf 04/30/2009 6:55 pm

    http://www.fineartregistry.com

    I register all my artwork here.

    Lynne Schlumpf

  35. Angela 04/16/2009 2:16 am

    My husband owns a small business where he does all the design, graphics and such. From time to time he will create a graphic inspired by another’s work but with a humorous twist, commonly known as a spoof. About a year ago he was planning a spoof and found a photograph of a sculpture online that was being used on many websites. He looked for any leads to the artist and could find none so assumed the image was one of public domain and used it. He posterized the image, added wording and used it in a completely different context. Recently we were contacted by an artist in Europe who claims to be the sculptor and says its his photograph and that we must compensate him for the use of the image. My question is two fold 1st does he have rights if we could find no copyright on the photo and altered the photo to a graphic? Keep in mind the fact that the original work is a 3 dimensional work and ours was a reworked 2 dimensional graphic inspired by a photo of the work. 2nd how can we protect ourselves if we can’t find out about the images licensing even after looking? Thanks

  36. AttorneyScott 04/14/2009 12:53 am

    Anonymous1:
    Are you asking whether the applicant has to be of a certain age, or are you asking whether the mark itself has to have been used for a certain amount of time? In regard to your second question, some artists decide to register what is known as a “design mark,” which includes both text and a logo, while some artists register the the logo and the name of the venture (a “word mark”) separately. It depends on the market and the nature of the marks.

    Grizz:
    If someone has “reworked” your logo, then you most probably have a claim for trademark infringement. The fact that the artist lives abroad comes in to play because U.S. Courts may not have jurisdiction (the right to rule) over the artist. Jurisdiction depends generally on how much contact the artist has with the U.S. and/or a particular state. If the U.S. Courts cannot exercise jurisdiction, he/she would have to be sued in the U.K. However, if the infringing work is being sold in the U.S. you would be able to make claims as to those sales, and perhaps bring the U.K. artist in based on those transactions.

    Kevin:
    Yes, you have rights in your designs if they are original to your company. Even without registrations, you may pursue an infringement of your designs (though you would need to file a registration prior to the case being filed). Damages are available. If you’d like to discuss further, you may contact our offices. Our contact information can be found at http://www.donigerlawfirm.com

    Diane:
    It sounds as if you are asking if you have trademark rights in moxy62. If you have been using that trademark to identify your products, you may have built trademark rights in that name through that use. Yes, you are able to register the name with the Trademark Office to provide further protection for, and evidence of your use of, the mark. If someone else is using the same mark, you may pursue the legal remedy of stopping that use.

    Paul:
    It is incorrect to say that someone who has not registered their work may not file a lawsuit when someone infringes that work. Your remedies are limited, but, as long as you register prior to the lawsuit being filed, you may still pursue instances of infringement. There are no hard and fast rules for how long cases last, but it is usually around a year from start to finish. I would need to know the nature of the work (i.e., song, graphic design, etc.) to give you any further information.

    Chris:

    An artist has the exclusive right (subject to a few exceptions) to control the use of his art. If the artist indicated to you that you may not use the design, you may not use it. In order to make shirts, you would have to modify it to such an extent that the original design is no longer apparent.

  37. Chris 04/10/2009 2:34 pm

    Recently a t-shirt company sent an e-mail to our league that showed off its latest design. It was a very cool design, but there were a few features of the pictures that did not apply to our league. I asked the artist if he would be willing to modify the design slightly to personalize it to our league, and I told him I could sell a lot of t-shirts (and he could make a lot of money) if he did. He said that he did not want to do that. I took his design and modified it myself, then put it on the front page of our website. He called me to say he was upset that I did that, so I took it off the website. We are a non-profit league, and the image I uploaded to our website was extremely low resolution, so we were not profiting from the design’s use and I feel that the artist was not hurt monetarily. I have two questions. First, did I do anything wrong by putting the artists design on our website? Second, if I make my own personal t-shirt using this modified design, am I doing anything wrong? I would not be selling this t-shirt, just making one for myself. Thanks.

  38. paul shiami 04/07/2009 2:35 am

    I recently found out that somebody copied my work, but I only had a common law copyright no real trademark. I could not even sue them and when i threatened them, they said that they would counter sue me. I do not have the money to endure a lengthy legal process, any idea of how long these things can draw out and how much it may cost. The lawyer that I spoke to charged $2500 just to look at my case. any thoughts?

  39. Diane Stanziani 04/01/2009 4:45 pm

    I have a website moxy62.com that has been in use since 2000. Just recently I found 2 other businesses using moxy62. One even has parts of my copy word for word. Can they use my name moxy62? And could I register moxy62 so no other company can use it? Moxy62.com is registered with Network Soutions, they tell me that moxy62 can be used.I really appreciate your time. I’m a fashion illustrator who has had her fair share of corporate barrowing from the little guy.
    Thanks, Diane

  40. Kevin 03/26/2009 6:24 pm

    I design home decoration products and get them manufactured with a factory in Asia. Recently I discovered many of my designs selling on somebody’s ebay store, without my knowledge or approval. I contacted the factory, and was told that they’ve sold their production overruns to the the guy selling on ebay. I haven’t got copyright registered. Is there anything I can do to stop my old styles selling by anyone else and can I claim any damages?

  41. Grizzly 03/17/2009 11:55 am

    Greetings Mr Scott.

    I have a logo (clothing co.) that has been reworked into a logo for a musician in the U.S.
    The artist that “created” the logo for the musician lives in the U.K. how does this change the situation under U.S. law?

    Thank You

  42. Anonymous1 03/06/2009 3:10 am

    1) Is there an age limit/requirement in registering for a trademark?

    2) If I wanted to trademark a brand name & its logo would I have to register them separately or can I register them on one application?

  43. AttorneyScott 03/05/2009 3:03 am

    KFSJR:

    To the extent the layout/appearance/graphics of a website is creative and original to the artist, those things may be subject to copyright protection. Also, the source code can be subject to protection. The idea of a site cannot be copyrighted, but the user-interface and aspects of the functionality of the site may be subject to patent protection.

  44. KFSJR 02/07/2009 2:44 am

    What aspect of a website is subject to copyright protection? Could graphic whole of each page be copyright? Can a specific element of the user-interface be copyright? Can the idea and functionality of a site be copyrighted?

  45. AttorneyScott 02/04/2009 1:21 am

    G.D. Rod:

    The Orphan Works Act, or Bentley Act, never made it to a vote in the House, and was taken off the table at the end of the session. The way it works, though, is that a bill that does not make it through the process can be introduced again in the future. So we may not have seen the last of this one.

  46. G.D.Rod 01/31/2009 7:44 pm

    AttorneyScott, do you know what ended up happening with regards to the Orphan Works bill that was introduced almost a year ago? This seems highly relevant to this website’s subject matter

    http://www.publicknowledge.org/node/1537#comments

  47. AttorneyScott 01/24/2009 12:32 am

    Anonymous: It depends on what type of contract you have with the end customer. Generally speaking, the answer would be no, and you would retain rights in what you create; however, many times a project is a work for hire, which means the rights go to the employer. Without more details, it is hard to give you a definitive answer.
    Trin: The easiest way to copyright a large number of works is to do a series registration, which you can do to register a group of creative works on one registration as long as they meet certain criteria. You should consider if this is necessary, though.If no other party has access to these pictures, they most probably will not be misappropriated.
    Crickett: This question is one I get all the time. There is no set percentage of changes one can make to a piece of art to evade its copyright.

    Note: this is for discussion purposes only and is not legal advice and does not create an attorney-client or other protected relationship.

  48. crickett 12/04/2008 12:40 am

    Is there a % of alteration from an original that then becomes a new piece of art in the eyes of the law? Or does it just have to represent a new expression of an idea? Is there a rule of thumb?

  49. trin 10/10/2008 3:38 am

    How can I copyright, for a reasonable expense, a lifetime’s portfolio of work that is still expanding? (I easily take over 1000 photos per month…for example.

    and how will all of this be affected if the Orphan Works bill goes through?

  50. Anonymous 09/30/2008 8:52 pm

    OK I have a question. I work for a very large company that produces paper products. Logo design and artwork are offered free, as an incentive for customers to purchase paper products (hangtags and such) from this company. If the customer buys that product, do they then have the rights to the artwork and logo design?

  51. AttorneyScott 08/01/2008 9:41 pm

    kryone:
    When selling art to a customer, whether it be gallery, company, person or whatever, the transaction is governed by contract, and the contract can be written to transfer whatever rights the artist is interested in transferring, while retaining those rights he/she doesn’t want to get rid of. An example would as follows: You create a painting of a dog on pogo stick. You want to sell the original painting to a gallery, sell the right to produce t-shirts bearing the pogo dog to one company, and sell the rights to turn the pogo dog into a cartoon to another company. You could do all of these things, and would have contracts with each of these parties which would state exactly what they were receiving, and what they were giving you for those rights.

  52. AttorneyScott 08/01/2008 9:35 pm

    Tibble: Copyright Law protects the expression of an idea, but not the idea itself (i.e. you would be able to sue someone who stole the way you expressed the dog-on-bike idea, but would not be able to stop anyone from creating art showing dogs on bikes).
    As to your second question, it’s been my experience, and I’ve litigated cases against most of the country’s large retailers, that in most cases the artist is able to recover a large portion of the profits that are attributable to the stolen art. The big corporations have the burden of proving any deductions from their profits, and they often cannot do so. Also, if the artist has registered the purloined works (which we highly recommend to our clients) prior to the theft, the artist can also recover his/her attorneys’ fees.

  53. Q 07/18/2008 2:46 am

    I am not a lawyer but because I run an art gallery I can answer your art question. A painting by an artist that is purchased as a painting does not give the owner any rights to reproduce it for sale other than to keep and admire as an original piece of artwork. An example: just because you own a Dali, Picasso, Warhol…..basically any of these that have estates, you cannot make profit from anything other than reselling the painting itself.

  54. kryone 07/10/2008 1:59 pm

    I would like to know if you sell your art work do you keep the rights to that original piece? For example, if I sold a painting to a company or an individual do they have the right to put it on a shirt and sell it or make prints to sell? Also if you take a logo or art and print it on a shirt to give away is this illegal? One more question off topic. When Paris Hilton made the phrase “That’s Hot” word is that she has the rights to that phrase. Does she really get royalty off of that and can you make a word or phrase and have rights to it?

  55. Tibble 07/07/2008 7:23 pm

    But if I came up with a shirt (and registered it) about two dogs on a bicyle that said ‘dogcyclin’ and someone else put dogs on a bicycle (facing opposite direction) and kept the same caption (using different font) would that image still be protected under copyright law? Or can the scam artists claim ‘fair use’ because I sell it online (public forum)?

    And in your experience, the little guys who get ripped off by large companies, do they ever get full compensation, penny for penny, for all units sold with their design? Or do most often settle for a mere fraction of what the corporate giants already gained in gross profits?

  56. AttorneyScott 04/11/2008 11:02 pm

    Anonymous and Immanuel: I’m an attorney licensed in the United States, and am not intimately familiar with copyright protection in your respective countries.

    eeedel: If you file a registration for a copyright or a trademark in a stencil design or engraving, it could be used as circumstantial evidence that you may have been involved in vandalism, but I’ve never experienced such a thing. If you’re going to do a line based on the stencil, it’s probably worth the risk to have it protected by copyright.

  57. eeedel 02/25/2008 9:03 pm

    yeah… thats risky business. copyrght/trademark of a stencil.. does that allow law enforcement to use that patent or copyright against the artist for prosecution in a vandalism case? i always worry about that.

  58. aDumb 02/19/2008 12:21 am

    But this still doesn’t apply to street artists who display their work illegally. Lets work on that next!

  59. lmmanuel 01/01/2008 7:58 pm

    Are the laws in Britain different if so, how?.

  60. Anonymous 12/30/2007 10:47 pm

    How does this relate to Australia??????

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