Artists trade in ideas. Precisely stated, artists trade in the expression of ideas. Thus, just as car dealers must protect and monetize their property—a car—artists must protect and monetize their intellectual property—the rights related to their works of art. Since this country’s founding, artists have been able to make use of intellectual property law to build their businesses, whether they knew or not.
Indeed, intellectual property law is not the sole domain of businesses. Perhaps patents are less likely to be useful for the artist, photographer, videographer, filmmaker or other creative professional. However, copyrights, trademarks, publicity rights, and other forms of intellectual property are all useful for folks like musicians, actors, painters, sculptors, mixed-media artists, and other creatives. Indeed, the Founders of the United States, products of the Enlightenment, made it clear that they were all in for art.
The Constitution instructs that copyright is for artists
To promote the Progress of ... useful Arts, by securing for limited Times to Authors ... the exclusive Right to their respective Writings....
United States Constitution, Article I, Section 8, Clause 8.
Yes, the founding fathers of this country believed in the Arts. Freedom of speech? That was an amendment to the Constitution. Copyright? The Founders put this right in the very first article of the most important document in the United States. The United States was founded with the idea of protecting artists through intellectual property - namely copyright - law. Jonathan LA Phillips has written and presented on this topic for Arts Partners of Central Illinois. His article was published here.
Trademarks (and trade dress)also protect artists
As explained elsewhere on our site, the primary function of trademarks is to identify the source of goods or services. Artists trade in physical copies of their works (goods) or being created. In the right circumstances, a comic book artist, a painter, or other artistic individual can use trademark law to protect her livelihood.
Why would he or she want to? By securing a tradeamark on his name, he protects the integrity of his name in the field. Others cannot try to make money of his name by implying that he has endorsed, owns, assisted, or otherwise is associated with an unauthorized company or person playing off his name.
Can anyone trademark their name? No. For intellectual property lawyers, the Trademark Manual of Examining Procedure is instructive here. In Section 1301.02(b), it explains that personal names, both actual names and nicknames, can only be a mark capable of trademark registration only if they identify and distinguish the services and not just the person. Essentially, you have to obtain a secondary meaning for your name. The author would have to convince the USPTO (or the appellate bodies above it) that JONATHAN LA PHILLIPS is not just a name. Rather, people understand that JONATHAN LA PHILLIPS is a source identifier for legal services. We call this identification as a source identifier "secondary meaning" in the intellectual property field.
Banksy could probably trademark his name if he wished. Dali? Definitely. Jonathan Phillips, the amateur photographer? Probably not. These kind of issues also play right into the right of publicity. Trade dress is also useful if you have source-identifying packaging for your art, such as distinctive CD or LP packaging.
We help artists and musicians with intellectual property matters
We can procure trademark registrations and copyright registrations for artists and musicians. Shay Phillips, Ltd. can and does enforce those rights when people violate them. We can also help you monetize them. Please feel free to call us or use our contact page to set up a time to discuss how we can help you.