Art & Photography, Copyrights & Trademarks

[Thisisnotme]

What is the name of your state (only U.S. law)? MA

Okay, here's my situation. I'm an artist as well as a photographer, I design and produce my own works and although I'd like to sell/share my works I am very weary about doing so. As well as unsure of just how to go about certain things. I know that as the artist, I can just add (c)[Year & Name] to the images or works but the thing is I don't want to use my name. Over the years I've come up with a "company" name and a logo, actually multiple logos all with a specific entity in them, that could be perhaps used as a trademark. I'd like to use this other name/trademark to copyright my images instead of using my actual name but I'm not sure how to go about doing so and if by doing so I, as well as my family, could lose the rights that come from being the artist, or family of the artist.

So I guess my questions are as follows:

As the actual artist can I copyright my works under a fictitious/company name and still reserve the rights of the actual artist, as well as pass those rights on to my family?

If so, can I just add the copyright to the images by just adding (c)[Year & Co. Name] or would it have to be (c)[Year & Co. NameTM]?

I'm sure I may have more questions but a least this is a good start.

Thank you in advance for any help with this matter.

 

[justalayman]

You do not have to "stamp" your works with anything to establish your rights under copyright law. The creator of the works is the owner of the rights unless they transfer them to another. A transfer of copyrights must be in writing.

To be able to enforce your rights in a court, your works must first be registered with the copyright office.

 

[Thisisnotme]

Thanks for the response, but my initial question(s) still remain.

Can I use [another name/other words/TM] to copyright my works other than my actual name?

And if so how would I go about it?

 

[quincy]

Yes, you can register your copyrighted works under an assumed name.

See http://www.copyright.gov/fls/fl101.html for information on registering your works using a pseudonym.

 

[Thisisnotme]

Ok, so it looks like my best plan of action would be to register a trademark for the exact phrase of words I plan to use and then use said phrase as a pseudonym when I register the works. If I'm reading it right the TM is at least $275 and registering a copyright is $35 per work. That's a whole lot of money considering I have 100s, maybe even 1000s, of images. Is there any other way I could go about this?

 

[quincy]

First, I think it would be worth your time and your money to sit down with an attorney in your area to discuss the various ways you can go about protecting your company and the work you are and will be producing.

Second, you do not have to register anything to have protection for your works and your trademark. Your trademark rights are gained through the use of your trademark in commerce in the U.S. and not through registration (this differs from other countries). The trademark is used as an identifier for your company and your products (your photographs and artwork). Registration of your mark, after you have started your company and are marketing your goods, will provide you with the presumption of ownership in the mark, should someone else try to use the same or a similar mark to identify their own company or market their own products or services. Registration provides you with proof of the date of first use of your mark in commerce, should a dispute arise later.

Copyrights attach automatically to your works as soon as they are fixed in a tangible form (once paint is on canvas, one a photographic print is made). These artistic works do not have to be registered for you to have enforceable rights in your works. The benefits that come with registration, however, generally makes registering them worthwhile.

For example, if one of your works is infringed, registration of your work prior to this infringement (or within three months of first publication of your works), makes you eligible to collect statutory damages (damages set by law), which range from $750 to $30,000 per infringed work (or up to $150,000 per work for especially egregious, intentional infringements). Without timely registration of your works, you would be limited to collecting from any infringer the proven losses you have suffered as a result of the infringement or the proven profits realized by the infringer (and these damages can often be difficult to demonstrate).

In addition, as justalayman said earlier, your work MUST be registered if you want to sue someone for infringing on your copyrighted work - although your copyrighted work can be registered after it is infringed - with the above noted caveats on collectable damages (and a few other caveats) should the work not be registered in a timely fashion.

But there is no requirement that you register any copyrighted work and there is no requirement that you register a trademark. There are just benefits to doing so.

Depending on the types of art you create, it may be possible for you to register them together, saving yourself some registration-fee money. Whether this is possible with your works is something you will need to discuss with an attorney in your area (preferably an IP attorney), who can personally review your works and provide you with your options.

And, again, you can look at the Copyright Office website for more information on copyrights (http://www.copyright.gov) and you can go to the U.S. Patent and Trademark website for more information on trademarks (http://www.uspto.gov).

It is possible for you to use your trademark as your "signature" on your creative works, or you can use an assumed name on your works and market these creative works under your trademarked company name. It is up to you.

If you want to ensure that your creative works pass on to your family after death, you can expressly give the rights in these works to your family in your will. I suggest you work with a professional in drawing up your will so there will be no issues arising from this transfer of your rights to your heirs after your death.

Again, because you have several issues here that need addressing, I recommend you consult with an attorney in your area who can personally review your works, your needs, and who can then advise you accordingly.

As a note, a free advice forum like FreeAdvice has some limits, and it appears you are reaching these limits rapidly.

 

[Thisisnotme]

Thanks for the replies.

First, I think it would be worth your time and your money to sit down with an attorney in your area to discuss the various ways you can go about protecting your company and the work you are and will be producing.

You're right but I'm sure that won't be "in the budget" for quite awhile.

Second, you do not have to register anything to have protection for your works and your trademark. Your trademark rights are gained through the use of your trademark in commerce in the U.S. and not through registration (this differs from other countries). The trademark is used as an identifier for your company and your products (your photographs and artwork). Registration of your mark, after you have started your company and are marketing your goods, will provide you with the presumption of ownership in the mark, should someone else try to use the same or a similar mark to identify their own company or market their own products or services. Registration provides you with proof of the date of first use of your mark in commerce, should a dispute arise later.

Does it have to be followed by TM because technically I have used the phrase on T-Shirts and images before, ie (c)2XXX XXXXX by XXXXX?

Copyrights attach automatically to your works as soon as they are fixed in a tangible form (once paint is on canvas, one a photographic print is made). These artistic works do not have to be registered for you to have enforceable rights in your works. The benefits that come with registration, however, generally makes registering them worthwhile.

Wouldn't digital images be considered a fixed tangible form even prior to printing?

It is possible for you to use your trademark as your "signature" on your creative works, or you can use an assumed name on your works and market these creative works under your trademarked company name. It is up to you.

Could you please elaborate on this a little more? Does this mean I could use a logo/TM as a signature? Shouldn't I still display a (c) somewhere near the edge of the image, even if it isn't registered? By market under your trademarked company name do you mean they'd be copyrighted by said company name, right?

Again, because you have several issues here that need addressing, I recommend you consult with an attorney in your area who can personally review your works, your needs, and who can then advise you accordingly.

As a note, a free advice forum like FreeAdvice has some limits, and it appears you are reaching these limits rapidly.

Thanks for your time I appreciate it, yeah I can see that.

 

[quincy]

Does it have to be followed by TM because technically I have used the phrase on T-Shirts and images before, ie (c)2XXX XXXXX by XXXXX?

Your trademark does not have to be followed by a TM. There is no legal reason for it. The rights in a trademark are gained through the use of the mark in commerce and not through the use of any symbol that may follow the trademark. That said, many people like to use "TM" as an additional way to indicate ownership of the mark.

On the other hand, you are prohibited from using the ® or "Reg. U.S. Pat & TM Office" with your trademark until your mark is federally registered. These are reserved for federally registered marks only. Then, once you have federal registration of your trademark, you will want to use the ® symbol with your mark.

Wouldn't digital images be considered a fixed tangible form even prior to printing?

Yes.

Could you please elaborate on this a little more? Does this mean I could use a logo/TM as a signature? Shouldn't I still display a (c) somewhere near the edge of the image, even if it isn't registered? By market under your trademarked company name do you mean they'd be copyrighted by said company name, right?

Yes, you can use a pseudonym as your signature on your artwork. The pseudonym can be the same as your trademark (ie, your trademark could be ARTICA and you could sign all of your works of art "ARTICA" and you can register your trademark as ARTICA and your copyrights under the pseudonym ARTICA.

You do not have to use the copyright bug (©) anywhere. It is not a symbol indicating your work is registered. It is simply a symbol indicating your work is copyrighted. But copyright is automatic and there is no need to use this symbol at all any more, although it used to be necessary to affix the symbol to a work years ago. It no longer is. You can use it if you wish. And it can help indicate to others that your work is copyright-protected and that it should not be used without your permission.

Again, the copyright mark is not necessary and the TM is not necessary and the only mark that is necessary will be the ® once your trademark is registered, this to signify registration of the mark and to allow you to recover all damages available to you to recover should your trademark be infringed.

And, again, consulting with an attorney in your area is wise and advised.