The Artist’s Guide to Trademarks
The modern artist relies on symbols and acronyms more then ever. These techniques are commonly used in the urban art scene, in which artists need to convey authorship in an anonymous and unique manner. A symbol or name can quickly convey who created the work, a necessity in a world where street art is commonly destroyed immediately after its creation. Moreover, repetition of an image can be an artistic tool in itself (See Shepard Fairey’s “Obey Campaign”).
Many of the images used by artists to signal authorship of their work are protected by copyright. Even with the vast amount of copyright myths out there, most artists are aware that such work receives copyright protection. However, many pseudonyms and symbols used by artists may also receive trademark protection. Trademarks protect different interests then copyrights, and require different formalities to obtain such protection. The arena of trademark law is dense and diverse; here we will cover how it relates specifically to uses by modern urban artists.
What is a Trademark? Design and Word Marks Explained
Essentially, a trademark is a word, symbol, or combination thereof that a person uses as a way to identify or distinguish their goods or services. In other words, it lets the consumer know that a certain product or piece of artwork came from a particular source or artist. Generally, the requirements for protection include distinctiveness and use of the mark in commerce. Here, the relevant categories include “design marks” and “word marks” (although sounds and even scents may qualify for protection).
The most common example of a trademark in the modern art world is Shepard Fairey’s “Obey Icon” (pictured left). This mark contains both the word mark “Obey” and the design mark of the image itself. Courts have set out different levels of “distinctiveness” in order to analyze whether a mark can immediately receive protection. “Arbitrary” marks are words that have a common English meaning, but do not relate to the product that it identifies. “Fanciful” marks convey no meaning at all, other than the trademark meaning. Both of these types of marks typically receive protection immediately upon use.
For example, according to the Merriam-Webster dictionary “obey” means “to follow the commands or guidance of.” This meaning has no relation to artwork or clothing, and thus is “arbitrary.” Shepard Fairey has received and enforced his exclusivity of its use as it relates to art and clothing. In contrast, the term “Banksy” has no meaning what so ever, other then to identify the works of the elusive street artist. Thus, the term Banksy is “fanciful” and would likely receive trademark protection if Banksy himself chose to enforce it.
On the other hand, words that are “generic” or “descriptive” will not receive protection. These marks describe the product or service that they relate to. For example, if Shepard Fairey chose to use the term “propaganda art” instead of “obey” he would likely not receive trademark protection. “Propaganda art” describes his artwork, and would likely be found to be “descriptive.”
However, descriptive or generic marks can also receive protection if they have acquired “secondary meaning.” Secondary meaning means that the public has been exposed to the mark enough to identify it as an indicator of source. Lets consider British street artist Dean Stockton’s use of the pseudonym “D’Face.”
A portion of Stockton’s work consists of him “defacing” famous artistic works (pictured above is his interpretation of Lichtenstein’s “In the Car”). While the mark “D’Face” may be descriptive of the art itself, it has acquired secondary meaning though Stockton’s consistent use of the pseudonym. In other words, when a person sees the term “D’Face” on a painting, they don’t identify it as descriptive of the subject matter, but instead identify it as a work of Dean Stockton.
Distinctiveness in Design
Design elements can be used to immediately signal the source of a specific work. Notably, pop superstar KAWS uses crosses on his character’s eyes in the majority of his paintings (pictured left), and previously mentioned D’Face uses wings exploding out of his character’s heads. Such design elements are never inherently distinctive and must acquire secondary meaning in order to receive protection. Furthermore, such designs must not be “aesthetically functional.” Think about it like this: if the design serves a non-trademark function it will not receive trademark protection. Courts want to make sure that providing protection to a design element will not prevent other artists from using a similar technique. In other words, it would hinder competition (and creativity) to allow only one artist to depict wings on a drawing. For example, let’s compare D’Face and KAWS.
First, D’face’s wings are seen in the majority of his work and signal that it is his. Due to his popularity, they have likely acquired secondary meaning. But, do they serve a functional purpose? Likely not. Wings protruding out of character’s heads are essentially meaningless, other then to signify D’face as the source of the work. Further, due to the unique design, size, and placement, protection of this mark would not hinder other artists from using wings in their artwork.
Conversely, the crosses through KAWS’s character’s eyes serve a function – to indicate the character is dead. From Disney to Nickelodeon, this design is commonly used to indicate a cartoon character is dead. Thus, these crosses serve a function other then signaling KAWS as the source of the artwork. Even though KAWS is extremely renowned, and could evidence a vast amount of secondary meaning for his signature crosses, he would not be able to protect this design element due to its functionality.
Use In Commerce
The second requirement for federal trademark protection is that the mark must be “used in commerce.” In other words, the word or design indicating the artist as the source of the work must be affixed to goods or accompanying packing material that are sold in interstate commerce. Goods or artistic services that are strictly sold intrastate may qualify for state protection, and such requirements vary from state to state.
Without actual use in commerce, an artist may still reserve their desired trademark by filing an “intent to use” application with the US Patent and Trademark Office. This system allows people to notify the USTPO that they intent to use a specific mark, although the formal requirements discussed above have not been satisfied.