arts royalties

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Information about arts royalties

Published on November 16, 2007

Author: Callia


Slide1:  Basics of Resale Royalties, Moral Rights and Trademark Simon J. Frankel, Howard Rice Slide2:  Resale Royalties Financial interest artists maintain in works of fine art after they are sold In the United States, exist only in California: Civ. Code §986 If work is resold in California or artist resides in state Fine art = original painting, sculpture, or drawing or original work of art in glass Slide3:  Resale Royalties Applies to sales of work after first sale Applies only if work re-sold for $1000 or more, and for more than last sale price Artist entitled to 5% of resale price If artist cannot be found, money to be paid to Arts Council within 90 days Artist can bring suit if royalty not paid Right cannot be waived (except for greater agreed percentage) Slide4:  Moral Rights Term refers to certain non-economic rights that artists can retain in their works after they are sold Key rights: right of integrity and right of attribution Right of integrity: right to prevent modification, mutilation or destruction of work Right of attribution: right to have your name associated with your work (or not to have your name associated with it if work has been altered) Slide5:  Moral Rights Federal Visual Artists Rights Act of 1990 Applies to “visual art”—“a painting, drawing, print, or sculpture,” or a “still photographic image produced for exhibition purposes,” existing in a single copy or a signed and numbered limited edition (<200) does not apply to a “work made for hire” or work created for promotional or advertising purposes Slide6:  Moral Rights Under VARA, artist can prevent prevent intentional distortion, mutilation, or other modification of a work of visual art; prevent destruction of a “work of recognized stature” (17 U.S.C. §106A(a)(3)) “Recognized stature” determined by expert testimony Rights apply to work created in or after 1980 and continue for 50 years after artist’s death Slide7:  Moral Rights Also some protection under California law (Civ. Code §987) and laws of other states (including New York and Massachusetts) Note: moral rights can be waived by contract Slide8:  What is a Trademark? Any word, symbol or device or any combination thereof that is used by a person (or entity) to identify and distinguish the person’s goods from those sold by others used to indicate the source or quality of goods Slide9:  Trademarks, Service Marks, Trade Dress Trademark is word, symbol or device Service mark is same, but used to indicate source of personal services Trade Dress is style, appearance, or packaging of product or service (non-functional aspects) Domain names also within law of trademarks Slide10:  Examples of Marks   Coca-Cola Slide11:  Purpose of Trademark Law Trademarks embody goodwill Trademark law seeks to prevent “confusion” on the part of consumers as to source or affiliation and to prevent unfair competition Principal benefit: Value generation and exclusivity Slide12:  Spectrum of Marks Arbitrary or fanciful (no easily perceived relationship between product and mark)—Kodak, Clorox, Apple for computers Suggestive (suggests product, but requires imagination to link them up)—Coppertone, Roach Motel Descriptive (nature of product immediately known)—United Air Lines, Chapstick lip balm Descriptive marks protected if acquire “secondary meaning” Generic (not protectible as trademarks)—super glue, aspirin Slide13:  Acquiring Trademark Rights First to Use Common law rights First to Register with US Patent & Trademark Office Nationwide rights Registration Search PTO Prosecution, TTAB proceedings Rights within fields of use, or classes more distinctive the mark = broader protection Slide14:  Proper Use of Trademarks Use as an adjective or as a noun referring to a specific source Kleenex tissue or Xerox copier Use proper designation ® or ™ Do not permit others to use your mark without proper “quality control” (e.g. in license) goes to essence of trademark as indicator of source and quality of goods or services Slide15:  Protecting Trademarks against Infringement Key issue is “likelihood of confusion” as to source, sponsorship or affiliation Based on range of factors Required to enforce trademark in order to maintain rights Avoid claim of acquiesence or laches Court action Remedies: Injunction, damages and (sometimes) attorney’s fees Slide16:  Trademark Dilution Claim where goods are not similar and confusion not necessarily likely Applies only to “famous” marks Focus not on confusion, but on trademark owner’s investment in mark and goodwill it has earned Dilution by “blurring” or by “tarnishment” Tiffany mufflers; Dallas Cowboys Cheerleaders Slide17:  Using the Trademark of Others Can generally use words of descriptive marks if using them in ordinary sense and unlikely to cause confusion (classic fair use) Can generally use trademark to refer to the owner’s goods or services—“We service Volkswagen cars” (nominative fair use) Comparative advertising permissible if truthful Can generally use a trademark to parody or comment on the mark’s owner or its goods—“I’m a Barbie girl in a Barbie world” But don’t use marks of others to identify your goods or services Slide18:  Trademark and Artistic Style? Slide19:  Thank you Marc D. Paisin Mediation Law Offices 510-893-2338, Linda Joy Kattwinkel Owen, Wickersham & Erickson 415-882-3200, Simon J. Frankel Howard Rice Nemerovski Canady Falk & Rabkin 415-434-1600,

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