Protecting Your Artwork Under Trademark Law

Art is a rendition of one’s soul painted for the world to see. You would not like it to be stolen or replicas of it made overnight, reaping you of your well-deserved rights, especially when those rights could have been easily protected in a few steps.

Gone are the days of the 16th Century Ottoman miniaturists when art was used to illustrate the text, and individual art pieces were a thing unheard of; when signature was all about style of the artist and signing one’s name on one’s art was considered improper.

In the era of the 21st century, the focus is on protecting your art from counterfeits. Counterfeit art in itself is a huge industry. In today’s world, an artist can create a counterfeit painting of a newly published work within a couple of hours if the same is published on the World Wide Web. Art buyers are always cautious in buying genuine art pieces as a counterfeit may cost millions but would be worth nothing in the long run.

Signing the artist’s name on the painting is a known way of declaring to the world the artist’s right over his work. Legally, artworks/ paintings are protected under the Copyright Law. As soon as a work is completed, the work is accorded copyright protection for the lifetime of the artist and an additional 60 years after he passes away. However, this is a limited period. And as seen in the Art Industry, art appreciates itself as the years pass by. More the years of a famous painting, more would be its value appreciating every year. Along with it, the artist’s name also becomes well-known. In this scenario, it is important that one makes a conscious effort of protecting one’s art perpetually. Protecting artwork perpetually is legally possible if one trademarks one’s signature since trademarks are protected perpetually. A major advantage of having a trademarked signature for your art is you can use your art as a basis of your business. Your artwork not only gets instant recognition because of the unique mark, your art house/ business would propagate perpetually. Your logo/ signature will not be easily infringed by others long after the copyright period expires and even in cases of infringement, you and your business would be able to successfully claim rights.

However, registering a signature/ surname as a trademark is easier said than done; but with careful implementation, it is very much possible.

For the first time, in In re Wood (217 USPQ 1345) an artist was given trademark registration right when he sought registration to protect his artwork from counterfeits. A similar issue was also addressed in the Picasso case wherein Picasso’s heirs successfully enforced their trademark rights over enterprises selling Picasso merchandise.

The hurdle in registering your signature as a trademark is deciding whether the name to be protected is a common name. Common surnames are not protectable names under trademark law. For example, if your surname is “Gupta”, which is a very common surname in India, it would not be protectable under Indian Trademark Law.

One way to get over this hurdle is to prove that your name has acquired a secondary meaning, i.e. your name is recognized by the public at large. For famous painters, as famous as M F Hussain, this will not be a difficult task. However, lesser known artists might have difficulty demonstrating that their surnames have acquired secondary meaning. Hiring survey experts to get evidence is an expensive affair. In such a case, one might think of registering one’s first name or middle name instead of his surname if registering these names would be much easier. You can also choose to register a unique pseudonym and apply for a trademark.

However, if you are adamant on registering your surname, then you can mitigate the chances of rejection by registering your surname as a logo. A logo along with a surname actually makes for a better trademark than a mere word mark since a logo can be made more distinctive and much more appealing than a surname-trademark. Also, having a trademarked logo for your artwork does not mean giving up signing your artwork. You can sign your signature alongside your logo. This would entitle better protection.

The point to be remembered while creating a logo is that your logo should be distinctive and different from logos of other artists; also, your logo should not be something generally used in the art trade, for example, the usual design of a palette or a paint-brush. The trick is to create a unique logo which would be recognized by the public as your signature as soon as it is seen on an artwork.

There are definite advantages of registering a trademark for your artwork. It does not require much effort to register and can benefit you in future. Therefore, start protecting your artwork perpetually by branding your signature/logo as your trademark. Protecting your art adequately is a strategy that would benefit not only your art/ business but also the artist community and art lovers.