Protecting Your Brand

By Joseph Wapelhorst, Staff Writer

For small, independent artists and creators, there are few tools more necessary for the progress of their careers than copyright protections. But do these legal safeguards always offer the same resources to smaller artists as they do to large corporations and world-famous creators? Do they even apply to small, independent, “unknown” work? The answer depends not only on the nature of the artist’s work, but his/her ability to present it in a way that complies with copyright laws. That may give small artists an advantage in scoring copyright protections.

According to the US Copyright Office, a copyright can protect an author’s ownership of their, “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture,” but does not protect, “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

That final clause protecting methods of expression of otherwise unprotected areas gives smaller artists a chance to earn a copyright for nearly anything which they plan to make a part of their brand so long as they have the creativity to properly frame their work to survive a court challenge. For example, style of dress and painting styles may be copyrighted as a manner of expression of ideas, but this would require some consistent use in a larger body of work to demonstrate this pattern of expression.

Similarly, the simple act of wearing clothes would normally not qualify for copyright protection but may qualify as an expression of some artistry under certain circumstances. For example, if an artist incorporated a peace sign into every article of clothing they wore as a method of conveying their antiwar messages, it may have a chance at copyright protection under the manner of expression clause. This sort of creative framing and creation can allow small creators to protect their developing brand.

When building a brand, it is important to know that names are not allowed to be copyrighted. Sometimes they can be trademarked, but those looking for a copyright or trademark would have more luck with an artistic representation such as a logo or signature stylization. This is another way in which smaller artists can take advantage of the subtle distinctions of what qualifies or does not qualify for copyrighting. In addition to building and protecting a signature brand or style, these smaller artists should also defend their work from predatory copyright enforcement by much larger creative entities. How often and how successfully do these smaller creators defend their work and what is the key to evading copyright infringement?

For small creators, copyrights are invaluable and apply equal protection when granted, regardless of the level of notoriety that the copyright holder possesses. Even with a copyright, in certain cases, an “bigger” artist’s work can be literally copied by a smaller one – but with important qualifications. The question of whether small artists can use, reference, and potentially even copy a larger artist’s work hinges primarily on the concept of fair use as mentioned in the Copyright Act of 1976. It guides every major legal case on potential copyright infringement.

There are 4 major questions when deciding if fair use exists to allow a copyright “violation.”  (1) the purpose and character of the use; (2) the nature of the work being used; (3) the amount and substantiality of the portion used; (4) and the effect of the use on the potential market of the original work. Fair use is the standard used by courts to decide when a piece of art or other object has appropriately used a copyrighted item. Those are obtuse legal terms. What do they mean in the real world?

In a prime example of the use of the fair use standard, the U.S. Supreme Court decided in Mattel Inc. v. Walking Mt. Prods. (2003) that a smaller, independent artist being sued by Mattel, was allowed to use whole Barbie dolls in his satirical commentary on the toys because of the scope and character of his art. Of course, all of this also hinges on whether an independent artist keeps their copyrights up to date. Copyrights must be renewed, and if they are not, the rights are surrendered for the period in which there is no valid copyright on a work as seen in Hoepker v. Kruger (2002). This window opens the door for serious consequences if a larger artist uses their work during the legally permitted window.

The Copyright Act also says that, “pictorial, graphic, or sculptural features” of an artist’s “design of a useful article” can be copyrighted if those elements “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” This clause protects those creators who may not be seen as artists due to the utilitarian nature of their products. For example, copyright protections have extended to a manufacturer of cheerleading uniforms for the design on the uniforms due to the fact that the design exists separately from the uniform and is a graphic, artistic feature.

The consequences for copyright infringement can include financial compensation and restraining orders. But there are other potential penalties.  For example, in Cariou v. Prince, the Southern District of NY ordered an artist to hand over the works that infringed on a photographer’s copyrighted work, to the photographer. In a landmark case for independent artists’ rights against famous creators, Rogers v. Koons, a small artist’s copyrighted illustration was protected from the famous artist Jeff Koons’ replication as of it as a wooden statue. While the financial damages were to be determined, Rogers was given the “offending item” as a consequence.

Some state laws take these protections even further to protect small artists. For example, in a notable copyright case under the New York Artists’ Authorship Rights Act, David Wojnarowicz claimed damage to his reputation “from attribution to him of altered, defaced, mutilated, or modified works of art,” after an organization reproduced pieces of his artwork to protest the messages of his work. In that case, the state law was held to overruled fair use considerations, because of the potential damage to the small artist’s reputation.

How far can all these regulations be stretched to protect the work of small businesses and creators? This question might find an answer in the First Amendment challenges of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In that case, the U.S. Supreme Court recognized pastry decoration as a form of expression, claiming that a Colorado baker need not decorate a wedding cake for a gay couple due to his refusal to use his method of expression to participate in or endorse an event that was against his religious beliefs.

The Court did, however, differentiate between the baking and decorating of cakes, qualifying the latter as expression, but not the former. This means that the line between art and utility is still thin and quite blurry. But if the decoration of a cake can be protected as expressive, creative content, then small artists now have even greater leeway to find copyright protection for all sorts of expressive acts.

With the clause in the Copyright Act of 1976 that allows for a method of expression of ideas to be copyrighted, this recent case suggests that even a style of decorating cakes, if done with the intent of expressing one’s religious beliefs, may be a candidate for copyright protections. At the very least, it seems that states are free to pass laws extending these protections with the precedent of Masterpiece Cakeshop, Ltd. behind them. With so much eligible for copyright protection and such equal application, small creators may be able to protect their work, even while also using the work of larger creators, without complication.

Staff Writer Joey Wapelhorst is a recent graduate of Fordham University where he studied Political Science and Accounting with a focus on Constitutional Law and American Government. He is currently choosing where to attend law school in the Fall.