Monday, June 19, 2017

Bo's bLAWg - Copyright Registration of Published and Unpublished Works



 MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I just sold a new original painting (I also license my art on products). Is selling the original painting considered “publishing” it? I haven’t had a chance to copyright the image yet. I am hoping I can include it in a group copyright with several unpublished, un-sold images. If I add the new painting/image to a site like Pixels.com for print sales, is that considered “published”.  Thanks in advance, Bo! Terri

Good questions, Terri.  “Publication” is an important term in the Copyright Act.  You appear to be aware of the fact that as an Artist you can save a good deal on Copyright Registration fees if you can register multiple images together as a group, and that it is easier to group unpublished imagery than published imagery for registration purposes.

Before I answer your question about whether your sale of the original painting constitutes Publication under the Act, I want to address one particular in your email: “I haven’t had a chance to copyright the image yet.”  You most likely mean that you have not had a chance to register your copyright in the image yet.  However, not everyone knows that they ‘have’ a copyright in their image as soon as they have created it.  As long as the image has sufficient creative original material in it, it is immediately subject to a claim of copyright by its Author/Artist.  So, to be sure, you have a copyright already.  Registration adds specific important statutory protections for the benefit of the Copyright registrant.  (See http://annietroe.blogspot.com/2015/01/bos-blawg.html )

“Publication” is defined in the Act as “the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.”  (See the alphabetical definitions section of the Copyright Act: https://www.copyright.gov/title17/92chap1.html#106a )

So, there is a quick answer to your first question.  Yes, sale of the painting is deemed a “publication” under the Act even though you have not “published” it in a conventional sense by making copies and distributing them.

The more intriguing question these days is whether artworks posted online are deemed to have been “published” under the Act.  Interestingly, when you post online yourself, even though theoretically you are displaying your imagery to the whole world, the mere “display” of a work does not of itself constitute publication!  “Mere display” has been deemed to include showing your artwork in a gallery or museum as well.  It is only when the gallery sells the artwork, or the museum purchases it for its collection, is that artwork will be deemed to have been “published.”

When it comes to registration, one of the Application questions is when the artwork was first published.  If you are selling your works individually, and not registering them prior to sale, then they likely will all have different publication dates.  That means separate registrations at $55 a pop.

However, it is possible to include multiple published works in a registration application if they were all originally published at the same time.  Circular 1 from the Copyright office says multiple published works can be registered as a group “if they are all first published together in the same publication on the same date and owned by the same claimant.” 
(See https://www.copyright.gov/circs/circ01.pdf page 8.)

Your recently sold artwork would not need to be registered individually if you actually published it prior to its sale as part of a group.  How might that have happened?  I’ll tell you.

You indicate that you list your artworks on pixels.com.  By posting the imagery at that website, if I am not mistaken, you are offering it with the purpose to distribute copies to people who will license it for merchandise and further distribution, right?  Well, that is specifically a kind of “display” that fits within the Copyright Act definition of “publication” (above).  So, if you were to post a bunch of previously unpublished images together on pixels.com for such purposes, then I think you would qualify for registering them all together since they share the same publication date.
 
Alternatively, you can register a group of unpublished artworks together for one fee as well.  These can be registered together as a “collection” if they satisfy all the following criteria:
1) The elements of the collection are assembled in an orderly form; 2) The combined elements bear a single title identifying the collection as a whole; 3) The copyright claimant or claimants for each element in the collection are the same, and 4) All the elements are by the same author or, if they are by different authors, at least one author has contributed copyrightable authorship to each element.  (Note: Works registered as an unpublished collection will be listed in the records of the Copyright Office only under the collection title.)

Hope this is helpful, Terri and that these tips save you a lot of registration application fees.  We give the Feds enough in taxes as it is! 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com
© 2017 mjbogatin


Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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Friday, June 9, 2017

Artist Spotlight - Irina Trzaskos



Tell us a bit about yourself: Did you go to school for art? Are you self taught?  
Annie, thank you for the opportunity of being featured on your wonderful blog.
I have a degree in Interior design and I have painted and drawn since I can remember. During my school years I would go to after school art programs to paint because I was enjoying it so much. I always knew that my career would be somehow connected with art. 

Do you work in just one medium? Several?
I mostly work in watercolor. It is my favorite medium since I was little. I was always exploring different mediums, and I am familiar with some software which makes life easier for me and my agent when I have to prepare my art for licensing.

What inspires you / where do you get inspiration from?
My main sources of inspiration are architecture, textiles, ceramics, theater, art history and crafts of different cultures. Beautiful color schemes are also very inspiring.



How did you start licensing your art?

When I moved to the US in 2012, I had to decide what direction my career should take; that is when I found out about art licensing. It took me several years to gain confidence, build a portfolio and as a result to look for and find an agent.

What are you working on now?
We just got back from a trip, and I have several projects going on: I am filming my next Skillshare class, developing new collection to submit to my art licensing portfolio and also I started to illustrate a book, my husband wrote.

Any great advice for our readers?
In art licensing, besides being creative it is very important to stay organized, have goals and constantly keep growing your portfolio, even if there are no specific assignments. I found my agent surprisingly easy – after I took watercolor classes I built a portfolio of 25+ art pieces , I picked my 5 favorite of them and started sending letters to licensing agencies I thought could be a good fit to represent my work. In a few days I got a letter from Art Licensing International.



Anything else you would like to share with us?
Besides creating art for licensing and teaching I love illustrating books. My husband writes fairytales and I illustrate them. It is our personal project we enjoy very much. Our books series is called Tales From a Magical Forest.




Are you an early riser? or night owl?
I always considered myself a night owl, but several years ago I noticed that I don’t like to work at night anymore and I really enjoy having breakfast with my husband instead of sleeping in ).

What is your favorite food?
It depends on season, I love seasonal fruits paired with different kind of cheeses. Also, I love fresh bakery items, a croissant and a cup of latte can make me instantly happy.

You can find Irina:

FACEBOOK https://www.facebook.com/irinatrzaskosstudio
INSTAGRAM  @irinatrzaskos

OUR BOOKS: https://www.facebook.com/TalesfromaMagicalForest/
            
https://www.amazon.com/author/talesfromamagicalforest 
  

For licensing my work please contact Art Licensing International :
http://artlicensing.com/content/irina-trzaskos-studio

SKILLSHARE CHANNEL: https://www.skillshare.com/r/irinatrzaskos


Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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Friday, May 26, 2017

Bo's bLAWg - Copyright and Title; Two Distinct Rights


MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I sell my original paintings, but retain digital files for licensing use on merchandise.  Does the purchaser of my painting have any right to use the image? Thanks. Jerry

Thanks for your question, Jerry.  You have identified the basic distinction between “physical property” and “intellectual property” rights.  Real property and personal property are ‘physical things’ which can be owned, and transferred in commerce.  Real property, of course is a house and the land on which it is located.  Personal property, or “personalty,” includes paintings, prints, merchandise, CDs, DVDs and books.  Ownership to both real and personal property is indicated by the term “Title.”  Just as the purchase of your house by a third party is deemed to transfer your Title to it to the new owner, so too, does the purchaser of your painting take your Title as their own.

Intellectual property interests are more ephemeral.  They are also your “property,” but they pertain to the artistic works contained in personalty:  the imagery contained in the physical painting, prints or on merchandise via license; the underlying composition and recording of music contained in a CD; the movie contained in the DVD, and the story and characters contained in the book of fiction.  In non-fiction, the Author’s intellectual property interest is in her written text, apart from the facts contained in the text.  All of these intellectual property interests, and rights in derivative works that can be made out of them, are the essence of Copyright.

You will recall that I previously provided the list of the Copyright holder’s Exclusive Interests:
http://annietroe.blogspot.com/2016/07/bos-blawg-copyright-and-derivative-use.html
With respect to your painting, Jerry, these include the rights to:
1.  reproduce the work in copies;
2.  prepare derivative works based upon the work;
3.  distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending, and
5.  display the copyrighted work publicly.

The notion to keep in mind is that these rights all attach to your copyright (your intellectual property in the underlying imagery), but not to the painting (personalty).  The people who purchase your painting get none of you intellectual property rights unless you expressly provide such rights to them.  An example of that, would be offering the purchaser the right to use the image in a family Holiday Card – presumably on the condition that your copyright notice is affixed!  You may also want to pre-approve the quality of the reproduction being made.  Clients of mine have provisions allowing for these additional rights and other conditions that they insert into their Art Sale template. 

I am reminded that one other provision I recommend be considered to include in the Sale Agreement is the right to borrow back the sold painting for a Museum or other show featuring the best of your artworks.  Most purchasers are so pleased with the notion that the artwork they are purchasing is one of your own favorites, they do not object to signing an agreement that allows you the right to borrow it back with reasonable notice, and on the further condition that the artwork is fully insured when out of their possession.  If you do not include such a right in your sale agreement, you would not be able to make the purchaser loan possession back to you.  The exclusive right of possession is the essence of Title to personality, just as Copyright is your exclusive right to the image in the painting.  Make sense? 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com
© 2017 mjbogatin

Friday, May 5, 2017

Artist Spotlight - Judy Reed Silver

 
(Click on images to view larger.)

Tell us a bit about yourself: Did you go to school for art? Are you self taught?   
I went to Art Center College of Design in Pasadena and focused on illustration and fine art.  While I was much younger I attended Brentwood Art Center for several years - started there when I was thirteen in adult life drawing classes as they didn’t offer any classes for kids at the time. I luckily had a family that allowed me to turn our kitchen into an art experiment. 
Do you work in just one medium? Several? 
It depends. If I’m working on canvas or for a fine art print I work with collage using my photography (sometimes steal my husbands as he used to be a professional photographer) and patterns that I created. I print to fabric or special papers. But for illustration, design and licensing I often work solely digital or scan in my drawings and vintage photos, manipulating within Photoshop. I also use cutline filters for a “vintage” effect. For wall patterns or fabrics, I usually use Illustrator, as most companies I’ve worked with prefer art supplied as vector files.
 

What inspires you / where do you get inspiration from? 
Japanese kimonos, fabrics, textiles, nature, especially anything vintage. I love modern architecture, interior design, fashion and that's what inspires me to incorporate my work for walls, rugs and fabrics.
How did you start licensing your art? 
A close friend and art director was working on a project for clothing and didn’t know the technical aspects of how to create patterns within illustrator. So she asked me to assist her on the project. This was back in 2005 and that job led to another large project with another design firm creating several clothing lines. I realized that between my love for fashion and architecture licensing would be a good fit. I was then approached by a licensing rep that convinced me to move forward and go all in.

What are you working on now?  
Designed another scarf recently for the National Cherry Blossom Festival (held in DC each spring); they sold quite well.  I also had fun with nature-inspired imagery for use on cool water bottles produced out of Sausalito. And then I'll work on a collage-y piece for a magazine. It's a nice blend of clients and I value what that diversity brings. Just now, my agent, Liz Sanders/Liz Sanders Agency and I have  promotional materials we're collaborating on. ...Would like to approach my blank canvas boards again!

 
Any great advice for our readers?
When approaching licensing, make sure the contracts make sense and are fair, most are slanted towards the Licensee. All copyright transfers are contingent upon payments in full, which should include a copyright reversion clause if any breach in payment or usage. The “Net” proceeds should be specific. Also the artist credit should be stated on the artwork and advertising/promotions. When seeking a licensing rep, speak to the other artists in their group to get proper background info.

Anything else you would like to share with us?
A few of my images are licensed through a company called, “Soundwall.” They produced this new sound/music technology that is transferred directly through the artwork and not a speaker. I listed their link below.
Are you an early riser? or night owl?
Really a night owl. I rarely go to sleep before 2 am. Everyone knows to never call me before 10 am. I do my best work at night.
What is your favorite food?
Indian food, and Caesar salads.



You can Find Judy:






Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Monday, April 24, 2017

Bo's bLAWg - Copyright Term and Unpublished Works


MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations.  It appears they date from 1880 and earlier to her death in 1925.  I don’t think any were published, but I do not know!   I would like to publish them.  You indicated in a prior bLAWg that works published before 1923 are in the Public Domain.  What about unpublished works from that date and earlier?  Thanks!  Teri

Good question, Teri.  The Term of copyright for never-published works does require a different analysis from that we use for published works.

Start with the contemporary Term:  the life of the author/artist plus 70 years.  Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain.  So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).

Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date.  So, were you able to determine that certain works were published, the 1923 rule applies.  Those published in 1923 would have their last year of copyright protection in 2018.  Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021.  (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )

I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship).  In the case of these, the Term is 120 years from date of creation.  So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection.  It is just a matter of knowing when they were created.  As of this year, creation before 1897 would make them PD.


Here is an online Chart that addresses this Term information for both published and unpublished works:  http://copyright.cornell.edu/resources/publicdomain.cfm
 

Now, I want to say a few other things about works in the PD.  First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use.  Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial  use of them.  Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material.  By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s?  Not necessarily…

More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements.  For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards.  While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts.  There would be little economic incentive to go to that trouble since your line is already available for sale. 


Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com


Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

 Don't want to miss the good stuff? Sign up for my newsletter ;-)

 

 

Friday, April 14, 2017

Artist Spotlight - Jill Craig

 

Tell us a bit about yourself

There was something magical that would always happen when the paints came out in elementary school.  The blank paper, the colors, the brushes, the freedom to let my creativity run wild was irresistible to me.  I knew this was the job for me, no question about it; I was going to be an artist!

But how could I support myself painting and drawing?  Although I graduated with a degree in fine art with an emphasis on painting and printmaking, the art gallery world didn’t seem a comfortable fit for me at that time.  Therefore, as I considered careers, which would provide financial stability, becoming an elementary teacher would probably be a much better choice.  Plus there were those summer vacations!  Yes, then I could spend those summers painting and letting all that creativity loose, perfect!

Unfortunately, summer was never enough time to explore this missing part of my life.  In my continued search over the following years for a career that blended creativity and challenge I worked within the interior design and visual merchandising fields. Both careers involved working with color, balance and form which was very creative and fun.  Yet still missing was the opportunity to play with a blank canvas, splash in the paint and give life to a vision only I could see.



Maybe painting and making a product that I could sell would be the answer?   Based on my love of textiles I developed a line of hand painted decorative pillows, tablecloths and napkins.  Shortly I learned the price I would need to charge per piece would far exceed what the retail market would pay. It was through my research into having these products manufactured that I stumbled into the world of surface pattern design.   Enrolled in a series of surface design classes in the mid 90’s I was fortunate to meet two other very talented designers.  We formed a studio, created our portfolios and off we marched to exhibit at Surtex.  What a grand and eye opening experience for us, this was exactly the career I had been searching for all these years. We exhibited together at Surtex and licensed our work for many years to manufacturers and retail businesses.

Due to my exposure at Surtex I was hired as an in-house designer for a ceramic dishware manufacturer.   While working with this manufacturer I also had the opportunity to work with many freelance designers in providing art direction, not only for our in-house line of products but also for custom designs requested by our retail clients.  Each October and May I enjoyed doing the visual merchandising of our showroom during the Tabletop Shows in New York, it was a nice little chance to revisit that creative expression. 

After about 10 years working in-house I returned to freelancing yet continue to work on a contract basis with my former employer.  Since my freelancing days of long ago the industry and Surtex have changed.   We have gone from hand painting designs on paper to now submitting digital files.   Licensing has also changed over the years with options ranging from limited use, exclusive use, and much more common now, flat fee and outright purchase.  Freelance marketing strategies now are more varied to include websites, blogs, print on demand, Etsy, as well as exhibiting at industry shows.  Becoming a member of artlicensingshow.com has been an invaluable source providing connections with manufacturers, sharing industry news and offering an open and supportive community of very talented designers.



My connection with other designers and various design blogs and websites help me navigate the waters, smooth out the ride and help keep me engaged and positive on this freelance journey. Those who admit to having their doubts about being talented enough to forge through the difficult times encourage me.  There are times when that little personal critic sits on my shoulder and tries to convince me to give it all up, tells me I’m not cut out for this business.  I cherish and flourish during the days that little guy has no words for me. Maybe success isn’t a measure of what I can do or create on a given day but more about what I learned during the process.  Maybe it was the way those colors merged together in that little corner of my watercolor, or how that texture over there created interest.  Relying on these examples as measurements of my success for the day, I stockpile them in preparation for the next conversation with that little demon.

Apart from a specific theme or subject I have repeatedly tried to identify my style and have wrestled with this issue all these years.  As it has been with my creative career choices, how could I choose just one area of interest? All these career endeavors have added layers of complementary elements, each supporting the other.  As far as branding a specific art style I skip along a narrow path between traditional and painterly to graphic and whimsical styles.  Trying to convince myself to let one go and concentrate on the other seems such an impossible task for me. In many ways this split personality of styles has been a positive in my work with manufacturers and retailers.  For now, a specific brand style may remain illusive for me but I enjoy having these options for the flexibility and diversity of design work that may come my way.

So many things can be the catalyst of inspiration for me.  Of course nature and our visual world bring countless opportunities for creative expression, but also a memory, word or phrase, even music can take me to the drawing board.  I am also inspired by the work of other designers and so thankful they are willing to share information selflessly and offer support when I fear I am off track.



I love watercolor and it’s surprises, but all paints and inks are good for the cause.  Chalk and colored pencils have a home here in my studio, add a bit of collage material and stamping tools and the day is never long enough.  Needless to say, digital art has slipped in and adds a whole new experience to my creative life.   The variety of digital brushes, tools, filters and techniques are so numerous I often feel overwhelmed but am continually curious and anxious to explore them. 

I tend to be a night owl especially if I am working on my own collections, sometimes I just get lost in the process of creating, that rather obsessive drive you just can’t stop. If there is a deadline looming I can be found in the studio early and eager.  I guess this goes along with my split personality of style, the chameleon freelancer striving to make it all work.

Chocolate will always remain a favorite choice to satisfy a moment of craving, just as putting the final touch on a design satisfies the joy of being an artist.  I look forward to continuing on this unique journey, with the challenges, the new experiences and especially to breath life into the countless designs dancing through my mind.

You can find Jill:
Email:  jillcraig2@comcast.net

Website: www.jillcraigdesign.net

Facebook: www.facebook.com/jillcraigdesign

Member: artlicensingshow.com

Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

 Don't want to miss the good stuff? Sign up for my newsletter ;-) Really looking forward to your comments below!

 

Friday, March 31, 2017

Bo's bLAWg - Copyright and Useful Items

 
MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

What is this I heard about a copyright and cheerleading uniforms case before SCOTUS?  Does it have anything to do with design licensing?  (BTW I love your bLAWg, Bo!)  Jeff

Always happy to discuss copyrights in the news, Jeff!  Let me summarize the case to which you are referring.  It is called Star Athletica, L.L.C. v. Varsity Brands, Inc.  Varsity Brands is one of the largest purveyors of cheerleading uniforms in the country.  Star Athletica is a smaller competitor.  Varsity registered its copyrights on certain “chevron designs” used in a new series of uniforms.  Star’s catalogue the following year included a number of similar chevron designs in its new uniforms.  Varsity sued.

What is a chevron?  I didn’t know!  Here is a link to some other legal bloggers who dug up the Varsity copyrighted designs and the Star catalogue uniforms:  https://www.knobbe.com/news/2016/11/chevrons-stripes-cheerleaders-and-copyright-supreme-court-hears-oral-argument-star  Now I know what a chevron is! 

The matter sounds straightforward enough, doesn’t it, Jeff?  What’s the issue that brought such a case all the way to the SCOTUS?  It is simply this:  Is the Varsity chevron an article that is part of a useful item like a cheerleading uniform, or is it something else; something uniquely creative simply added to the useful article? Copyright does not apply to “useful items”.  It has always applied to the sculpture that is turned into a lamp, and the illustrations that are added to mugs, but what about clothing?  Historically, clothing and its elements, from zippers to hidden pockets, have always been considered useful items.  Some of these items may be entitled to patent protection, but not copyright.

Copyright is limited to “original works of authorship” that are not in themselves “functional”.  (See 17 USC Section 101:  https://www.copyright.gov/title17/92chap1.html#106a )   Section 101 defines a useful article as:

an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

Reasonable minds can differ.  The Federal District Court in Varsity’s copyright infringement case found that the chevrons had a utilitarian function with respect to the uniforms.  Varsity appealed.  The Federal Circuit Appellate Court reversed, finding that the chevron was a design that “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” per 17 U.S.C. § 101.  Star appealed to SCOTUS.  Undoubtedly, as indicated by the reversal of the original Judgment, Stars’ attorneys considered this to be “a close question.”  And no doubt there were a lot of damages at stake.  Remember, having lost on appeal, Star could be liable not only for large damages, but for all Varsity’s attorneys’ fees and costs incurred for bringing their action, as well as Stars’ own.

When it came right down to it, SCOTUS did not consider this to be such a close question.  It applied the usual legal “test”:  Do the artistic features of the useful articles includes a separate identification or “separability” requirement and an independent existence requirement.  More particularly, “(1) can the chevron designs be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would they qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article?”

Justice Thomas, writing for a five-member majority of the Court, affirmed the Judgment of the Sixth Circuit Court of Appeals.  This majority identified the two key requirements – that the chevron features were separately identifiable from the cheerleading uniform, and are capable of existing independent of the utilitarian aspects of the uniform.  It also reasoned that removing the surface decorations from the uniforms in the abstract and applying them in another medium would not replicate the uniform itself.

So, Jeff, you want to make a million bucks?  Attach some of your original artwork in ambiguous fashion to a top-selling article of clothing.  Register your copyright, and let me know when you someone infringes on your design.  We’ll rack up.

Disclaimer:  The information contained in this website is not intended and should not be relied upon as legal advice. Because the law is not static, and one situation will differ from the next, the results will differ as well, thus we do not assume responsibility for any actions taken based on any information contained herein. Also, be aware that the laws vary from state to state. Therefore, this website cannot replace the advice of an experienced attorney who practices within the jurisdiction involved in your issue or dispute. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold www.bcgattorneys.com
© 2017 mjbogatin


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