How Trademarks Can Help Protect Artists: Trademark Law as a Valuable Tool for Artists

Trademark law is often overlooked when it comes to protecting artists since copyright typically provides more comprehensive protection, including exclusive rights to control the reproduction, distribution, derivative works, public performance, public display and digital transmission of their work. However, trademark law can also protect artists.

A trademark identifies the unique source of goods or services, rewarding a brand’s goodwill while reducing consumer confusion. A trademark can protect logos, words, phrases, designs, symbols, sounds, colors, smells or a combination thereof, so long as it distinguishes one’s goods and services from those of others. Therefore, an artwork itself is not likely to have trademark protection, but elements of the artwork, such as an artist’s name and signature, may. (Fun fact: from the commercial art world, the distinctive script of the Coca-Cola logo was merely the penmanship of the founder’s accountant. Yet, the simple drawing became one of the most valuable trademarks in the world.) While an artist can trademark their name or signature, it must be used in commerce to identify and distinguish their goods or services. Unlike copyright, trademark protection hinges on the mark functioning as a source identifier for consumers.

Certain artists — for example, Jackson Pollock, Yayoi Kusama, David Hockney, Andy Warhol and Roy Lichtenstein — have been recognized for their particularly distinctive styles, attracting attention from fans and imitators. Trademark law offers one avenue for artists to assert control over their brand and art.

Yet the art world benefits when artists draw inspiration from each other with consent. They live together (Jasper Johns and Robert Rauschenberg), marry each other (Frida Kahlo and Diego Rivera), study together (Black Mountain College), have coffee together (Caffè Reggio in New York City) and party together (Max’s Kansas City). However, there is a line between inspiration and appropriation.

Artists can prevent others from using their names and signatures by trademarking them. Notable examples of artists who have trademarked their signatures include Banksy, Andy Warhol and Keith Haring, while Jean-Michel Basquiat and Georgia O’Keeffe, among others, have successfully trademarked their names. In 1966, artist Robert Watts created a sculptural piece titled “Picasso Signature,” which is a neon sign in the shape of Picasso’s signature. The signature itself was not trademarked in the U.S. until 1977 by the estate of Pablo Picasso.

Trademarking an artist’s name can not only prevent others from using it, but also creates lucrative licensing opportunities for the artist. In the words of Keith Haring, “The use of commercial projects has enabled me to reach millions of people whom I would not have reached by remaining an unknown artist. I assumed, after all, that the point of making art was to communicate and contribute to culture.” Paloma Picasso, Pablo Picasso’s daughter and French jewelry designer, trademarked her name, allowing her to collaborate with top brands like Tiffany and Co. The Frida Kahlo Corporation trademarked her name and collaborated with Mattel, owner of Barbie, to create a Frida Kahlo Barbie doll. (Kahlo’s family has spoken out against this licensing as they feel she would not have wanted this partnership.) Licensing opportunities for artists vary widely from limited edition BMW cars to limited edition socks.

Licensing may also open the door to lawsuits. For instance, artist Bob Timberlake faced a legal challenge from the Timberland brand when he trademarked his name and started collaborating with brands. Timberlake prevailed  in the suit, but he reported costly litigation fees, a reality which may be prohibitive for most.

Trademarking their signatures helped New York graffiti artists when they sued Vince Camuto for using their art as a backdrop for an advertising campaign. Similarly, Joseph Tierney, another graffiti artist, sued Moschino for using his graffiti art on a dress without permission. Artists have argued that these uses without their permission harm their brand image. Specifically with graffiti art, artists have signatures or identifiers commonly called tags, which they argue can be trademarked if sufficiently famous.

Some of Andy Warhol’s most famous works are his 32 paintings of Campbell’s soup cans of each variety that existed at the time, using the trademarked Campbell’s logo. Instead of taking action against him, Campbell’s decided that his series was actually an advertising opportunity. Warhol was gifted tomato soup as a gesture of thanks, and Campbell’s ultimately commissioned a work for themselves. The artist’s estate and Campbell’s have continued their relationship, creating licensed collaborations.

In rare cases, artists can also trademark a color. For instance, Yves Klein, French post-war artist, invented a pure ultramarine blue for which he also patented the formula and achieved publicity and notoriety for using the color. Not surprisingly, some artists have spoken out against the idea of trademarking colors as it narrows the color spectrum for other artists.

Trademark law encompasses a claim of dilution that certain artists may utilize to protect their work. Dilution is a reduction in the uniqueness of a brand, which results in its devaluation. Dilution by blurring is a specific kind of dilution in which use of a similar mark blurs the consumer’s connection between a mark and the goods, causing the mark’s distinctiveness to diminish. 15 U.S.C. § 1125(c)(2)(B). However, a dilution by blurring claim only applies to a mark that 75% of the consuming public in the United States recognizes, an exceedingly high bar.

While an artist’s name, signature, tag and color can be trademarked, artistic style cannot, as it lacks consistent source identification. Nevertheless, some artists have tried to argue that their artistic style is protectable. The artist Jeff Koons sought to protect his balloon dog because it had been copied many times, even though Koons was not the first to make a balloon dog. In his lawsuit against a gallery selling balloon dogs, he claimed to own the idea of a sculpture of a balloon dog but ultimately dropped the lawsuit on the condition that the gallery would not use his name in connection with the sculptures.

Under certain circumstances, artists can pursue a false designation of origin claim under § 43(a) of the Lanham Act. 15 U.S.C. § 1125(a). If the court finds that an artist is falsely advertising their work or suggesting a connection or affiliation without authorization, the court may uphold the cancellation of the mark. Courts look to whether there is a likelihood of confusion and whether there was an intent to create a confusingly similar copy. L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1132 (Fed. Cir. 1993).

Lutzker & Lutzker is available to help with registering names and signatures and navigating licensing agreements. For further reading from our website on the topics discussed here, see the following Insights and IP Bits & Pieces®: Compilations v. Individual Copyright Registrations of Photographs, AI and Its Impact on the Fashion Industry, Protecting Your Fine Art series and our Trademark FAQs.