Friday, July 21, 2017

Bo's bLAWg - Cost Benefit Analysis of Copyright Registration, and Derivative 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. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo,
I have two questions if you don't mind. I am a casual print-on-demand artist for about eight years now. I have never registered my work for copyright.

1) Let's say I have about 100 designs published over time with about 30% of them actually sold through PODs. Am I understanding correctly that each design would now require a separate copyright at this late date? I do not know the dates of each uploaded image.

2) In the event I use the same design and change out the text in the picture do I copyright the design only or copyright each rendition including text? This question applies to color only changes too.

I bring in at most one to two thousand dollars of income a year. It seems like it is very costly for me to go back and copyright them at this late date. I currently don't license my work but have been approached several times over the years to consider it. I didn't have the time and knowledge back then but could be interested in the future.

Dear Anonymous,
First Q:   I agree that it is likely unduly expensive for you to individually register if you have in fact “published” your 100 +/- designs at different times, so would not be eligible to register them as a group such as “My Best Designs of 2016.”  You read last month’s bLAWg closely and are certain that the 70% that have never sold have in fact been ‘published”?

As I mentioned last month, the designs must have been offered online or otherwise with the purpose to distribute copies to people who will license it for merchandise and further distribution.    If you have ‘merely’ displayed your designs online on your own website and not did necessarily specifically offered them to be licensed, some or all of the 70 might still be unpublished. And, as I mentioned last month, unpublished works can be registered in a group under a single fee if they are all yours alone.

Assuming that it is clear the 70 unlicensed designs were in fact clearly offered for licensed use, and they were not posted in groups that would qualify for registration together because they have the same publication date, then, to save money, I recommend that you focus on the designs that have been licensed.  It is likely that those designs will have broader public dissemination and thereby be more vulnerable to infringement. If a group of those 30 were licensed together, then they too could be registered as a group rather than individually.

Otherwise, pick and choose among the 30 as to popularity and quality and begin your registration efforts with those, since presumably, they are the ones that are most likely to be infringed, so you want the statutory benefits that accrue with registration before infringement for at least those.  Once you prevail on a copyright infringement claim, you may well be able to afford registration of all the designs you have ever created!

As for the changed designs, Q2, unless the text is sufficiently ‘creative,’ like an original poem, and not just a quip or caption, the short answer is yes, you would likely want to register the new work as appropriate. However, if the text you use are mere catchwords or phrases, mottoes, slogans, or short expressions, such verbiage is not eligible for copyright
(See )

If the text is a new poem, but being used in conjunction with a previously registered image, it would be eligible for its own registration on the TX (text) application form, not as VA (Visual Art).

If you are just changing the color scheme to a previously registered design, I would say that you need not re-register the new color scheme.  Indeed, merely changing the color scheme is not likely eligible for a new registration as it lacks sufficient ‘new creative expression.’ 
(See  ) 

It is interesting to note what the Copyright Office does offer as examples of derivative works of visual art that should be registered:
•  A sculpture based on a drawing;
•  A drawing based on a photograph, and
•  A lithograph    based    on a painting.

What all three of these have in common is that they truly transform the pre-existing artwork from one ‘medium’ to another.  Anything short of that level of transformation may not require a new registration.  What this means to me is that the new color version of your design has full copyright protection by the original registration, since it does not qualify for its own registration.

So, to the extent that this applies to a large number of your designs, maybe you can save some application fees after all!

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,
© 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, July 14, 2017

Agent Spotlight - Art House Design


How long have you been in business and how did you come to be an agent?  
I started my business in Hong Kong in 1991, I wanted to live in Asia for a while and I noticed that a lot of publishers moved their printing from Europe to Hong Kong. Subsequently there was a lot of demand for good quality European designs.


Who are the manufacturers you work with - how did you establish those relationships?  
We work with all the main card publishers in Europa, US and Australia. From small players who supply the small tobacco chain to Hallmark licensees.

Do you have employees/help? 
We work with salesmen in Asia and Latin America, all the designers we work with are freelancers although with some we work for 25 years already.

How do you market artists?  
We exhibit at several fairs like Frankfurt, New York, London. Further I still travel a lot to visit clients so I can emphasize new lines and designers. I still feel that in this time of internet it is still important to have personal contact with clients.


What do you look for in an Artist?  We prefer commercial artists over niche styles since we sell all over the world.

How much work do you expect an artists to create?
At least 50 a year but some arts may take more time.

Any great news you would like to share? We just released our new web page with over 20,000 arts. When the client logs in, it has a unique filter that filters out designs that were licensed in the country of the client. Therefore, clients are never frustrated that part of their selection is not available.


How has the Art Licensing business changed over the years?
Of course the internet has changed the business dramatically but it also helps to be in business 24/7 all over the world.

Any advice or information you would like to share? 
Travel, visit prospects and believe in what you do.

You can find Art House Design

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, July 7, 2017

Artist Spotlight - Pencil Parade Collective

Tell us a bit about your collective:
Pencil Parade met in an online class in 2015. Our personalities clicked while chatting in the private Facebook groups and thought it would be a good idea (and fun!) to join forces as a collective. We use Google Hangouts for formal meetings about once a month and have a private Facebook group that we are active on daily. It wasn't until May of 2017 that we finally met in person, to exhibit at Blue Print trade show in New York City.

Tell us a bit about yourselves: Did you go to school for art? Are you self taught?
None of us went to school for art, but we all did creative majors: Betsy and Megan went for Photography, Brooke went for film (and taught Paint and Sip classes!), and Katie majored in theater! We’re all self-taught in art and have lots of individual experience that help in our collective.

Do you work in just one medium? Several?
We all have a range of styles and sometimes we like to change it up!  We work with watercolor, gouache, india ink, and even digitally: painting in Photoshop, Procreate, or vector-based artwork in Illustrator.  

What inspires you / where do you get inspiration from?
Betsy: Having little kids around invites lots of colorful patterns, books and doodads into my house. I also like to pick up vintage cookbooks and fabric at thrift stores when I see something I like.

Brooke: I get inspiration from exploring my city and trying new experiences. Recently I did an Escape room; the set design of the room was so cool and I found an old book that had amazing patterns on the spine. I was also inspired earlier this year by the tiles in the bathroom of restaurant by the beach. I guess it's just being curious and paying attention to the little details of the spaces around me.

Katie: I'm often inspired by what's in my own "backyard." From my literal backyard garden, to the nature that surrounds me, objects in my home, vintage textiles, and children's books.

Megan: Living with an engineer is quite inspiring in itself.  Every project he does is very detailed and logical - this often works its way into my artwork as fun little details and interesting ‘ah-ha’s!  I also enjoy practicing yoga which has a way of making you stop and breath and allowing your mind to think of things in a different way.


How did you start licensing your art?
Betsy: My first license was with a sock company. I sent in some designs for a contest but didn't win, but a few months later they got in touch to ask if they could license one of the patterns I submitted.

Brooke: Of course, I've started business relationships by sending new art to companies on a regular basis, but the Pencil Parade art collective has really helped me in my art career. As a group we're able to send out postcards more frequently, have a really well curated instagram account, and reach out to potential clients with a much larger selection of artwork. I think all these efforts combined has resulted in people paying a bit more attention to us. And in essence, it's basically doubling our marketing efforts as an individual.

Katie: I opened an Etsy shop to start selling art prints, tea towels, and stationery items. The first thing I licensed was with a company that found my work on Etsy. Around the same time I was also developing an online portfolio and starting to actively contact companies that I hoped to work with.

Megan: I began licensing when my eyes were opened to it while working in-house at a textile company in LA.  I didn’t even know it was a thing until I saw the work artists were getting after they submitted.  My first license was and is with a greeting card company who I still work with today!

What are you working on now?
We’ll all knee-deep in holiday designs for clients and also some personal work here and there when we can fit it in.


Any great advice for our readers?
Betsy: I have an alarm on my phone that reminds me to submit to 2 companies every Monday. I don't always do it if I'm busy with other work, but it's a great reminder to share my work.

Brooke: Find ways to connect with your artist community! It gets lonely working alone and having people you can bounce ideas off of or ask questions, is so important.

Katie: I struggled for years trying to find a style or feeling anxious that I didn't have one. My biggest piece of advice for people in the same boat is to keep making work. It's in there already, you just need to work and it will come out all on its own and then continue to evolve and change. Also, find a support system. Joining my art collective, Pencil Parade, has been one of my best decisions yet. We support each other, help each other, and push each other too.

Megan: I agree with everyone else, and in addition, I actually have some online tutorials and classes to help intermediate to advanced designers.  A lot of them are more technology oriented. I talk a lot about using Photoshop and Illustrator to their fullest and how to work like a graphic designer and not just an illustrator.

Anything else you would like to share with us?
Betsy Siber is really excited to share her first fabric collection in a few months! In January, she signed on with Michael Miller Fabrics as an exclusive designer, and it has been a wonderful experience so far!  All four of us have recently signed on to a photo card company, too, which we're all excited about!

Are you all early risers? or night owls?
Betsy is the only night owl of our collective (the rest are early risers!), but Katie enjoys the quiet of a not-too-late night.

What is your favorite food?
Being in Southern California, Megan enjoys fabulous Mexican food, Betsy likes buttered toast and sushi (though not together!), and Katie says her weakness is French Fries.

Pencil Parade:





Want to be spotlighted? email me 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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