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. 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:  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: )   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
© 2017 mjbogatin

Have a legal question? email it to 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, March 24, 2017

Agent Spotlight - Brenda Manley Designs

How long have you been in business and how did you come to be an agent? 
I worked 16 years for a paper tableware manufacturer in multiple positions.  Started as a graphic designer for catalogs, then promoted to designer, senior designer, assistant manager and finally design manager.  I created trend briefs, art directed and was an art buyer/licensee.  I had been attending Surtex for 10+ years.  At each show without fail, I was in complete awe of all the insane talent oozing from each booth. The creativity was intoxicating!  I have always had the entrepreneurial spirit so I decided to switch sides of the proverbial table. Since I am an artist first, my original intention was to freelance on my own.  Along the way I met emerging talent who had little experience in this industry. In my attempts to help some of them my agency developed organically. Some may see me being an artist as confusing while being an agent at the same time.  I reassure them that my art directing skills are stronger and that my creative output is rather infrequent. I truly feel being an artist combined with 16 years of manufacturing experience is a win/win situation.  I understand the demands of manufacturing deadlines and know the challenges designers face.  I thrive being the conduit to both sides!  So while we are in our 3rd year of business I bring over 28 years of design experience to the table with 19 of those years specializing in the social expressions/surface design industry.  

(Editor's note: you can click images to view larger)
Angel Gerardo - AG_0042_Joy to the World_CS

Who are the manufacturers you work with - how did you establish those relationships?
Relationships have been established via exhibiting at trade shows.  I have had the pleasure working with many outstanding manufacturers, some of which have requested to remain anonymous.  However, the following have granted permission to publish:  Amscan, Apache Mills, Claire’s Accessories, Clever Factory, C.R. Gibson, Demdaco, Design Design, Design House Greetings, DesignScapes, LLC, Groupe-Editor, Hallmark, Igloo, International Greetings, Michael Miller Fabrics, Mohawk, National Imports, Northcott Fabrics, Jillson Roberts, Lenox, Pier 1, Seaman Paper, Sterling Brands, Sullivan Paper, The Lindy Bowman Co., TJX, Unique and Wigwam Mills.

Do you have employees/help? 
I have recently been employing the help of a contractor who helps with admin and accounting.  This frees me up to do what I do best - support my artists, art direct, network and secure projects for our talented team!

Alyssa Kays - AKD_15C001_Candy_Christmas_Train_Card_OP

How do you market artists? 
Many ways!  Instagram, Facebook, Twitter, LinkedIn, newsletters, advertising in trade publications and exhibiting at trade shows. Oh, and several interviews here and there ;-)

What do you look for in an Artist? 
Passion, design style, originality, color sense, technical skills (PS and AI expert level) and authenticity as an individual.
Amiee Sue Malott - ASM_16078_Baby Collection

How much work do you expect an artists to create? 
I ask that they produce 12 new designs a month.  While this may vary per designer due to design style, it is a suggested guideline.  This helps them develop as an artist (the more we create, the more we develop).  It also helps keep our portfolio fresh so we are relevant to manufacturers who have little to no development time. 

Any great news you would like to share?  
We have a very desirable booth location this year at Surtex.  We are in booth 2707 - right in front of the entrance!  I’m so excited I can barely stand it!  Oh, and I also I have some very exciting news but it’s too soon to share.  Stay tuned!
Emma Schonenberg - ES_EXG16_005_Exotic_Garedn_01_OP_B
How has the Art Licensing business changed over the years?
I’ve seen a shift in manufacturers moving away from licensing and procuring artwork via purchasing artwork out right - full buy out.  This works well if manufacturers are equipped with an in house team to manipulate the artwork.  However, on the flip side, there are still many viable licensing opportunities available.  Each has it’s advantages and disadvantages.

Any advice or information you would like to share? 
I would say the most valuable piece of advice is to show up everyday no matter the circumstances.  Release the outcome of what you think it should look like. Just keep creating, dreaming, journaling and keep doing the necessary actions to achieve the next level on one’s goal/bucket list DESPITE the challenges, mistakes and disappointments.  For it is in these trying times that our character develops.  One with character, preparedness, and quality content rarely relies on luck to succeed - THEY FLOURISH!

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


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Friday, March 3, 2017

Artist Spotlight - Randi Zafman


Annie, thank you so much for inviting me to be part of your Artist Spotlight. I am honored to be included among so many talented creatives.

Tell us a bit about yourself: Did you go to school for art? Are you self taught? 
I have been drawing my whole life. One of my earliest, art making memories was when I was about four years old. I remember hiding my crayons and markers in my bed, under the covers. Once my parents tucked me in and left my room, I stood on my bed and colored on the wall. The next morning, my parents came in and saw my artwork and although they were very pleased with what I created, they just wished it wasn’t on the wall. That very day, they repainted, bought a huge roll of white butcher paper, and created a place for my daily murals. I was lucky to always have a lot of support from my family in my art endeavors. I was the kid that used to take the jar of peanut butter and the cereal box, and draw it. This was my first, early interest in package design. I have been obsessed with the anatomy and structure of letterforms ever since. While still in high school, I started taking college-level art classes in design, typography, and watercolor. Armed with a professional set of Winsor & Newton watercolors, sable brushes and an Arches block, I began my life-long, love affair with watercolor. I then studied drawing and painting, graphic design and illustration, and received a BA in Fine Arts.

Do you work in just one medium? Several?
I was trained in many artistic disciplines, but watercolor is, and always will be, my favorite. My watercolor illustrations and lettering are created traditionally, by hand. I crave that tactile sensation of brush, paint and paper. I draw and paint everything in watercolor, gouache, and ink. I then scan my artwork into Photoshop and edit with the Apple pencil on my iPad Pro.

What inspires you / where do you get inspiration from?
I was born and raised in Los Angeles, where I still live today. I love to start my day with a long walk. Inspiration is everywhere, from the mid century, art deco and Spanish architecture, to the wonderful shops that are all around me. By the time I get back home, I can’t wait to get working in my studio.

How did you start licensing your art?
I started working as a graphic designer and art director back in the days before computers. I freelanced and worked in-house, and did everything from traditional graphics to illustration for giftware and stationery companies. It was so amazing to see my work in stores and on products. I’ve done artwork for unusual things things like boxer shorts and credit cards to more typical products like packaging and greeting cards.

What are you working on now?
I have this huge list of ideas and things I want to create. I have the problem of too many ideas and never enough hours in the day. I make sketches and color studies, so that they can one day become finished pieces. Every day feels like an exciting, new opportunity.

Any great advice for our readers?
Life is short, do what you love and follow your artistic dreams. Stay true to your style, but be open to letting it evolve. Enjoy the creative process, be present, and see where it takes you. You never know what you may discover about your art and yourself.

Anything else you would like to share with us?
I am represented by Liz Sanders Agency. Having an agent has been a goal of mine and Liz is wonderful to work with. I am so looking forward to all we can do together.

Are you an early riser? or night owl?
I am definitely an early bird and always have been. I have the most energy in the morning. Some of my best design solutions have come to me in my dreams, so I like to work when the ideas are fresh.

What is your favorite food?
Sushi for sure. The first time I tried it I was at a sweet sixteen in Little Tokyo and it has become my all time favorite food.

You can find Randi

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


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