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Creative Protection For Artists

By Leon Reid IV October, 2017

In late 2014, I embarked on a new body of artwork different from my street-art of the past. The new work reflected tech-age iconography through drawing, painting and sculpture and culminated in a solo-exhibition at 17 Frost Gallery titled TECH-ART: Soul for technology. The heading fit well and I could foresee exploring this creative direction for years to come. “Maybe I should trademark it” I thought. And so began the application process with attorney Philip Kimball. Nine months later, I received a hard-copy certificate from The U.S. Trademark and Patent Office and am now the proud owner of TECH-ART:Soul for technology®.

"How much did that cost?" or "Do you really need that as an artist?" some may ask. In reply; not as much as you think, and unnecessary yes, but a long-term investment strategy too.

In applying for trademark protection, I sought to challenge the artist’s stereotypical hands-off mentality regarding career management. Too often we creatives choose to be aloof regarding business matters and even market-savvy artists are quick to assign agents to make decisions for their own best interests. By ignoring or delegating, we expose ourselves to great vulnerability and some of us have suffered dearly as a result. Unwilling to walk this road, I chose to explore the tools of protection available to all creators.

Copyright safeguards original works of art against unlicensed reproduction. Say for example your painting is printed by the thousands as a poster without permission, copyright protection is there to help. Trademark secures brand identity in commerce. If your shoe logo is altered slightly by a competitor to sell cheaper footwear, trademark is your bulwark.The federal government values originality in art and business and by offering protection encourages innovation.

Although copyright and trademark law promotes creativity, artists generally remain skeptical due partly to a lack of education. Many prestigious art colleges still do not offer courses in Intellectual Property “I.P.” the legal arena protecting creative content. Furthermore, we are repelled by the idea of paying a lawyer to protect rights we feel are self-defending. Sadly, artists often learn the benefits of I.P. protection after a painful legal experience where it becomes clear that creating art does nothing to protect it against infringement.

Robert Indiana’s iconic LOVE artwork is a cautionary tale. Created in the late1950’s, his imagery became extremely popular by the 70’s and was reproduced to ubiquity on retail items largely without permission. Because Mr.Indiana did not register LOVE for copyright protection, he had few legal options to stop its proliferation. Ironically, Indiana was dismissed by the art community as too “commercial” while earning nothing on the unlicensed reproductions. Worse, the image cast a long shadow over his career preventing any chance of creative reinvention.

Enter Richard Prince, who over a four-decade career has found success in “appropriating” the works of artists. Mr. Prince has questioned the very nature of authorship by duplicating or reprinting works (particularly photography) adding minimal embellishment, and selling the appropriations at a profit. In 2011, a federal district court found that Prince infringed on photographer Patrick Cariou’s images (See Cariou v. Prince). However an appellate court determined that Prince added transformative value to Mr. Cariou’s photographs and therefore constituted “Fair Use”. Prince settled with Cariou for an undisclosed sum, however it is important to note that Cariou couldn't have put Prince in court without holding the copyright certificate to his own images first.

According to the The Copyright Act of 1976,  copyright ownership is automatically assigned to an artist upon creation of an artwork. The caveat however is that -should a dispute arise- registration is a prerequisite for filing a lawsuit, winning statutory damages and recouping legal fees. In other words, artists who’ve registered carry a powerful lever to move unfortunate circumstances in their favor.

And yet there are more than a handful of artists who’ve invested in the protection of their ideas. For example, the free-spirited painting instructor Bob Ross® trademarked not only his name, but also painting techniques such as Bob Ross Wet-on-Wet Technique®. Kitsch landscape master Thomas Kinkade® also used trademark to distinguish his brand of painting in the home décor market. Street-Artist Shepard Fairey's OBEY® mark is one seen on any-and-everything including the USPTO search base. Aesthetic opinions aside, all three artists have found their successful niche while protecting their intellectual property.

Not to say that all artwork should be federally registered. Artists tend to create volumes of work most of which goes unexhibited in their lifetimes; the invisibility of unshown artwork is very strong security indeed. On the other hand, any creation an artist plans to exhibit and feels is both unique and representative of a larger collection of work should consider it. And if we creatives choose not to protect our ideas, that decision should be an informed one and not made in ignorance of the tools out there.