Did you check off the first three legal & financial steps for new artists in my recent posts? Before you move onto this week’s step, you’ll want to read those posts and make sure you’ve got everything handled so that this week’s assignments can be done properly.
THE NEXT THINGS TO SORT OUT ARE COPYRIGHT AND TRADEMARKS.
(If you live outside the US, this may be a good overview or a starting point since many countries have similar laws. However, I am only familiar enough with the laws of my own country to advise.)
Copyright and trademarks happen at the federal level.
But let me clarify the difference between them, since they are often confused.
Copyright is a tool to protect you, the creator, from having your creations used or copied without your permission.
Trademark law was put into place to protect the consumer, the customer, from confusing one business with another.
You happen to also benefit from trademarks in a lot situations because your customers won’t think someone else is you and do business with them by mistake.
But the government doesn’t care if a trademark would help your business. They only care if a trademark will keep things clear in the marketplace.
So you can copyright things like your website (if you created it yourself), a painting, or a book of your paintings.
And you can trademark things like your business name, your logo, or the title of a prolific series of work you’ve created.
LET’S GO INTO A LITTLE MORE DETAIL ON COPYRIGHTS.
There’s a misunderstanding (though not a myth) in the US that you have your copyright the moment the work is created. They use the phrase “fixed in a tangible form”. However, while finishing a drawing may give you copyright, it doesn’t give you all the benefits you get when you register your copyright with the federal government.
If you were to get in a dispute with someone about the copyright of one of your works, you are limited quite a bit if you haven’t registered the copyright.
Firstly, it can be difficult to prove the date that your artwork was created.
But surprisingly, even if you were to win the case you can only be awarded as much money as was directly made by the other person from your design. (So if they printed your illustration onto a tote bag and sold 5 of them for $20 each, the most money you can make in court from the whole ordeal is $100.) And you are not entitled to reimbursement for the cost of your attorney or financial reparation for the damage to your brand, your business, or your stress levels.
You can’t always get those things if you register your copyright since, of course, each case is handled individually in court.
But at least you have the chance to take back some of the pain, stress, and frustration monetarily.
SO YOU REALLY WANT TO REGISTER COPYRIGHT FOR ALL YOUR ARTWORKS.
This could get very expensive, so I usually advise artists look into registering artworks as collections – putting many pieces on the same copyright application.
Typically a collection in the eyes of the government doesn’t have to be a collection in the way you market it. So you might file a collection for Oil Paintings Fall 2017, while on your website you have these paintings dispersed between a few different series.
You can save a lot of money by filing once a quarter or twice a year with all the works on the same application.
Should you end up in court fighting for your copyright, your lawyer may have to approach the argument differently (given that it’s the “collection” that has been used without your permission, not the individual artwork, in the eyes of the law) but in most cases it wouldn’t affect your ability to prove that you created the work when you created it, registered it, and own the copyright.
YOU CAN FILE THE APPLICATION ONLINE (HOORAY!) TO MAKE YOUR LIFE A BIT EASIER AND SPEED UP THE PROCESS ON BOTH SIDES.
Just go to Copyright.gov and click on the first picture, called Register. And then click the blue button to login to eCO.
Register using the tiny link on their login form. Then login with the info you created.
After that it gets simpler.
You’ll choose what type of work (probably “visual arts” if you’re reading this blog) and select when you completed it and when it was “published” (which is when the first copy has been made, typically a photograph, and shown to others – so this could even be an Instagram photo). If you’re filing a collection, you use the date the last piece was first published.
Then you’ll fill out info about yourself (you are the author and the claimant unless you’re registering a work someone else created but you have ownership of, like a deceased spouse’s work or an employee’s design), give them info on anyone else involved (like if you collaged someone else’s photo into your artwork), and provide pictures and info for the pieces you’re including.
After you submit the application and payment (just $55 for a collection), they do require you to mail them copies of the images you’ve registered within 3 months.
Average processing time (before your copyright is officially registered) is ten whopping months! But you can still use the image like normal in the meantime.
NOW LET’S TALK IN MORE DETAIL ABOUT TRADEMARKS.
Before you start an application for a trademark, you’ll want to do some searching to see if what you want to trademark is already in the marketplace.
For instance, if you’ve come up with a name for your art business that you love – like Layer Cake Studios – you might not know another business is already using that or a similar name – like Layer Cake wine.
While there may or may not be any confusion between paintings and wines (remember it’s about whether the names are confusing in the marketplace), it’s important to know all the ways your name is being used in any industry in order to properly fill out your trademark application and avoid infringing on another person’s trademark.
A great place to start is at the USPTO’s trademark database where you can hunt for similar names, phrases, and images (called “marks”) to see what’s out there. Then I always recommend popping a few searches into Google too.
You may find that your name is already being used in the art world.
That’s a total bummer! You should consult with an attorney but it’s likely you’ll need to change your business name to avoid legal action being taken against you.
If your name is being used, but in another industry, it’s a murkier situation. You may be fine to keep using the name and even register a trademark for it within your industry. This too requires a quick session with an attorney.
Assuming all your searching goes well, you’ll want to start working on your trademark application.
Trademark applications are much trickier than copyright applications.
There’s a lot of nuance to trademark law that might get your application rejected even though you need a trademark for that name (or logo or tagline, etc).
You should look into what’s required at USPTO.gov and familiarize yourself with the trademark application process. Perhaps even fill out a draft of the application.
BUT I RECOMMEND HAVING A LAWYER HELP YOU BEFORE YOU SUBMIT YOUR APPLICATION.
A lawyer experienced in trademark & intellectual property law will be able to advise strategies that will get your application accepted. They’ll help you prove that a trademark is necessary.
If you do decide to file yourself, in most instances you’ll want to file a TEAS RF. This costs $275 and is done digitally. This fee is non-refundable, even if your application is rejected.
The process of filling out the application is surprisingly clearly outlined at this page on the USPTO. They even have a video series for you to watch the process of filling out the application.
After you’ve submitted the application and payment, you’ll have to wait at least 3 months to hear anything from them.
You can see the progress of your application online, thankfully.
Sometimes they’ll contact you to request more information or further explanation. The process can have some minimal back and forth to it that results in a really long process (sometimes a couple years!). That’s another reason to be working with an attorney to help you move it through the system faster.
But before you go through this whole shebang, make sure you actually want a trademark.
Trademarks are not a necessary part of doing business.
A lawyer friend of mine told me once that if you have a “mark” that you would be devastated to see someone else using or to have to stop using if someone else trademarked it first, you should start the process of trademarking it for yourself.
Also be aware that your personal name can’t be trademarked.
Technically, it’s not illegal, but the USPTO only grants this to household names that are used extensively in commerce. So if I filed to trademark Laura C. George, my business name, my application would be rejected. But if I filed to trademark The Art of Pricing Art, the title of my video series on pricing artwork, my application may be accepted.
And that’s trademarks in a nutshell!
SO LET’S RECAP YOUR HOMEWORK, ASSUMING YOU’RE STARTING AT ZERO.
1 Make a list of the artworks you want to register for your first copyright application and collect an image of each one in a folder so it’s easy when you’re ready to file.
2 Fill out the copyright application online and pay the filing fee.
3 Decide whether you want to pursue a trademark and, if you do, search the trademark database and Google for similar names, phrases, images, or whatever you’re trying to trademark.
4 Familiarize yourself with the trademark process and consider drafting a trademark application.
5 Find a lawyer who has experience in intellectual property law and schedule a session to go over your case, finish your application, and file for your trademark.
6 Wait patiently for the copyright and trademark applications to come in!
Whoosh! I know it feels like a lot, but I bet you can tackle all of it before the end of the year.
And then you can rest easy that the basics are covered, right?
Please post in the comments if you have questions about the copyright and trademark processes and I’ll do my best to answer. And share this post with your artist friends who are just starting to sell their art too!
And remember – I’m not a lawyer nor an accountant so I can only give you anecdotal advice based on experience. Your business may have different needs than are assumed in this article. You are completely responsible for your own business decisions. When in doubt, go find someone who got a degree in law or accounting.