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15 Minutes on Copyright for Visual Artists

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A South Albany High School senior whose painting, "Stolen Wings," received a gold medal in the 2010 National Scholastic Art & Writing Awards competition has admitted she copied the painting.

Kasey Bowman, 18, had been invited last month to attend a June 8 awards ceremony at Carnegie Hall in New York and the opening reception of the National Scholastic Art and Writing Awards Exhibition at the World Financial Center's Courtyard Gallery, where her painting was to have been on display through June 25.

Scholastic revoked the award and removed the painting from its online gallery after investigating complaints from artist Wenqing Yan, 19, of Monrovia, Calif., whose original painting "Selfish," created in 2006, is nearly identical to Bowman's submission.

Both paintings depict a nude young woman from the back, standing with a dead swan dangling from her left hand, its wings severed. The wings have been affixed to the girl's back.

In "Selfish," the model has short, blond hair and is holding a bloody knife in her right hand. In "Stolen Wings," her hair is longer and dark. Its style is darker in tone, and the knife is not distinct.

Bowman said Monday that she had seen painting and its accompanying poem online several years ago and was so moved by it that she sketched the image and copied the poem.

Several years later, she said a friend saw her sketch, remarked howmuch she liked it, and asked for a painting of the work. Bowman said she painted a copy from her sketch, changing a few details in the process. She also included the copied poem.

Bowman said that both her art teacher and her family really liked the results, and when the opportunity came to enter something in the Scholastic contest, they suggested the painting. She said she knew the idea for the painting was not her own but did not know how to give the artist credit.

"I feel so bad; I would never have done it. I am completely remorseful," Bowman said Monday. "I would never intentionally hurt another artist."

Maria Delapoer, superintendent of Greater Albany Public Schools, said news about the painting reached her over the weekend. If "Stolen Wings" received class credit, she said, school consequences could be forthcoming, but that is still under investigation.

"The district does not condone plagiarism and expects students to submit original work, whether it's artistic or academic," Delapoer said.

"I think she's learned, and won't go down that path again," the superintendent said of Bowman.

According to Yan's blog, she started complaining to competition officials on April 6 that the gold medal entry depicted her original work.

Scholastic posted a statement Monday on its Facebook page that the National Gold Medal and American Visions Award have been revoked. "Contrary to information posted online by commenters on various sites, this student received no monetary prize from our program," the statement reads.

Scholastic said the number of entries it receives makes it impossible to verify the originality of every one. Artists are asked to sign a consent form stating the work is their own.

"We encourage concerned observers to remember that the student involved has acknowledged that she has made a mistake, and to think about the effects that statements posted online may have," the organization said.

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2010 national scholastic art and writing awards

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Award-winning teen artist admits copying painting

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A South Albany High School senior whose painting, "Stolen Wings," received a gold medal in the 2010 National Scholastic Art & Writing Awards competition has admitted she copied the painting.

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Be You! Be Original!

We want what you have!

The Scholastic Art & Writing Awards may be an awards program, but first and foremost, it's a celebration of you: your hard work, your unique talents, and your originality! A Gold Key is not the only award we give; another comes long before the National Ceremony at Carnegie Hall when our jurors, world-renowned artists and writers meet you through what you've made. It's your chance to be taken seriously as an artist or a writer, as an individual with a personal voice or vision that belongs to you and you alone.

The Scholastic Awards hold you to the same standards as professional artists and writers. This doesn't mean we expect you to spend a decade perfecting a manuscript before sending it out, or to jumpstart a new art movement that completely changes the world. All we ask is that you be yourself! We value originality above all else, and this means no awards can be given to work that is not your own.

There is no formula to receiving a Scholastic Award. We want you to surprise us, challenge us, let us into your world. In almost 100 years, there's only one thing we've never seen: You! And this is all we want!

So before submitting any work to the Awards, make sure it adheres to the plagiarism and copyright guidelines below. You can also download this guide as a PDF.

A Guide on Plagiarism and Copyright for Students & Educators

Work that is submitted to the Scholastic Art & Writing Awards must be original work created by the student. If a submitted work is copied from another artist or writer or is plagiarized, the work will be disqualified from the Scholastic Awards.

To avoid this from happening, please review these guidelines before submitting your work.

What is Copyright & Plagiarism?

Copyright is a form of legal protection prohibiting others from copying one's creative work without permission. A copyright is a property right. Copyright law grants the creator of an original work the exclusive rights for its use and distribution.

Plagiarism is an ethical violation resulting from failure to cite sources and engaging in the act of passing someone else's work or ideas off as one's own. This applies even if you have only copied a part, rather than the whole, of another's work.

Scholastic Awards Policy

By participating in the Awards, students agree to the Scholastic Awards participation terms. This means that the student agrees to submit " original work " to the Awards.

How do I know if my work is original?

An original work is one that is new and different from what others have created. This means that you are the author of the work, and the work is not copied from someone else's original work.

Even if there is no exact or literal copying, but the average person may notice substantial similarities between the submitted work and the source material, it is possible that the work is not considered original and should not be submitted to the Awards. For example, a pencil drawing that directly copies a celebrity portrait that was taken by another artist or a piece of writing that simply rearranges the words of someone else's writing is not original work.

Can I use someone else's work if I make changes to it?

If your work transforms the source material, then it may be considered original. Transformative work is a new work that adds value, substantially changes, comments on, or gives a new expression or meaning to the source.

If the submission uses another artist or writer's work as raw material and transforms the original work by bringing new insights and understandings to the piece, it may be submitted to the Scholastic Awards.

Changing the medium-for example, creating a painting based on a photo that was taken by someone else or creating a poem by rearranging the lyrics to a song-does NOT make the work transformative.

Cropping or resizing an image does NOT make the work transformative.

Changing the order of the lines in a poem or adding a few words to a sentence written by another author is NOT transformative.

What if I cite my sources? Can I use another person's work if I give them credit?

You may use limited portions of another's work if you cite your source and if the final product is still an original idea. For example, you can quote another author in a critical essay if you cite the author in the works cited section of your submission.

There is no formula, specific number of words, or percentage of someone else's work that is acceptable to use when submitting your work to the Scholastic Awards. What is important is that your finished work is something new and different from your source.

Consequences of Copyright & Plagiarism Violations

If the Alliance has reason to believe that a submission violates the participation terms, the student submission will be disqualified. In this event, the Alliance may refuse or revoke the grant of an Award, and take such other measures, including the recall or removal of the awarded work, as the Alliance deems appropriate. Bear in mind that this policy is in the interest of both the student and the Alliance, since the display or distribution of an infringing submission could result in financial liability for both the student and the Alliance.

What if I find a work that was submitted to the Scholastic Awards that isn't original?

If you suspect that a work was copied from another source or was plagiarized, please let us know by emailing us at info@artandwriting.org. We will investigate to determine if the work violates our participation terms. Because of student privacy concerns, we will not follow-up with you to report on the outcome of our investigation.

Tips: Preventing Copyright & Plagiarism Violations

Educators and students are responsible for educating themselves on copyright and plagiarism issues. This page is only a guide. There is no formula for creating an original work.

If you have any doubt about whether a submission is original, choose not to submit that work.

Always cite all sources, whether the source is protected by copyright or not.

Even if you have permission to use a work or if the work is in the public domain, the work that you submit to the Scholastic Awards must represent a new, original work.

No number of words or percentage of a source can be safely assumed to render a work original.

Changing the medium of an original work is not considered transformative. For example, a painting or drawing of a photograph taken from the Internet or a magazine is not considered original and should not be submitted to the Scholastic Awards.

Changing the order of the lines in a poem or adding a few words to a sentence written by another author is not considered transformative. For example, a poem comprised of rearranged or paraphrased song lyrics is not considered original and should not be submitted to the Scholastic Awards.

Educators: if a classroom assignment involves any copying of a another artist or writer's work, even if it's just for the purpose of practicing and learning, please direct students not to submit these works to the Scholastic Awards.

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The Scholastic Art & Writing Awards may be an awards program, but first and foremost, it's a celebration of you: your hard work, your unique talents, and your originality! A Gold Key is not the only award we give; another comes long before the National Ceremony at Carnegie Hall when our jurors, world-renowned artists and writers meet you through what you've made.

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The Quick-Reference Guide to Trademark Search

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Everything you need to know about trademark search, both in the US and global, can be found in this helpful guide. Trademark search can be complex, but this...

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Copyright has never been an easy, black-and-white kind of issue. Arguments over copyright between creatives happen all of the time, it's an inescapable issue.

Read through some of these famous court cases that have created major public discourse over copyright - how it's handled, what it means, and why we should all care.

1. Rogers vs. Koons
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Photograph: Art Rogers - 1985; Polychrome: Jeff Koons - 1988 (both via The Design Observer Group)

Case

Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rogers' photograph and used it to create a set of statues based on the image.

Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rogers sued Koons for copyright. Koons responded by claiming fair use by parody.

Outcome

The court found the similarities between the 2 images too close, and that a "typical person" would be able to recognize the copy. Koon's defense was rejected under the argument that he could have used a more generic source to make the same statement - without copying Rogers' work. Koons was forced to pay a monetary settlement to Rogers.

Significance

This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another's work to create your own original piece? And if you do so, does that constitute derivative work?

It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward.

You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist?

2. The Associated Press vs. Fairey
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Photograph: Mannie Garcia - 2006 (via The New York Times); Poster: Shephard Fairey - 2008 (via Wikipedia)

Case

Famous street artist Shephard Fairey created the Hope poster during President Obama's first run for presidential election in 2008. The design rapidly became a symbol for Obama's campaign, technically independent of the campaign but with its approval.

In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia - with the AP demanding compensation for its use in Fairey's work. Fairey responded with the defense of fair use, claiming his work didn't reduce the value of the original photograph.

Outcome

The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.

Significance

Though there wasn't a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It's unlikely that Garcia's work could have ever reached the level of fame it did, if not for Fairey's poster. Garcia himself stated he was "so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had," but still had a problem with the fact that Fairey took the image without permission and without credit for it's originator.

Credit, credit, credit! On 99designs you cannot use licensed work - but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source.

3. Cariou vs. Prince
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Photograph: Patrick Cariou - 2000; Adaptation: Richard Prince - 2008 (both via artnet)

Case

Richard Prince is a well known appropriation artist - one who transforms the work of others to create new meaning in his own work. For an exhibition in the Gagosian Gallery, Prince appropriated 41 images from a photography book by French photographer Patrick Cariou, claiming fair use that he created new meaning out of the photographs. Cariou argued that it wasn't fair use, but copyright infringement.

Outcome

A judge ruled in favor for Cariou in 2011, claiming the changes made to Cariou's photographs weren't significant enough to constitute a change in meaning - fair use. However, the case is currently in appeal and the final decision has not yet been reached.

Significance

The initial ruling in this case in favor of Cariou has created huge divisions in the artistic community. It brings up questions about artistic intent and the subjectivity of art, asking "who was this judge to determine whether or not the appropriated artwork had enough meaning to be considered fair use" when the art could be interpreted differently by each person who viewed it. The jury is still out on this one.

Imitation vs. inspiration

Don't be a designer who creates work too close to that of another. You have to make sure you are creating something original and not derivative.

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Update 4/25/2013

Not two weeks after this article was published, the original decision in this case was overturned and the judge ruled in favor of Prince for the majority of the works in dispute, claiming that Prince's work transformed the work in the way that it was aesthetically different, and thus acceptable under the argument of fair use.

Read more about the decision as well as the 5 pieces which are still under review by a lower court in The New York Times and Hyperallergic.

4. Modern Dog Design vs. Target Corporation
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Illustrations: Modern Dog - 2008; T-shirt: Target (both via Business Insider)

Case

Seattle design firm Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011.

Outcome

TBD. There hasn't been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue.

Significance

The Modern Dog case has brought to light a question burning in the mind of many designers and artists - what happens if a major corporation with many more resources than me, utilizes my artwork for profit?

Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it's turning into a very extreme situation for them. We'll have to keep an eye out for how this progressed and continues to change the conversation around this issue.

Always defend your designs. Regardless of who you're going up against - if you think your design is in the right, then make it known.

5. Vanilla Ice vs. David Bowie/Freddie Mercury
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Case

Vanilla Ice had a hit, in 1991, with Ice Ice Baby - it sampled but did not credit the song Under Pressure by David Bowie and Queen. Though at first denying it, Vanilla Ice later retracted the statement saying it was "a joke". Facing a lawsuit by the duo, Vanilla Ice 'fessed to sampling the work.

Outcome

The case was settled privately out of court with Ice paying an undeclared sum of money and crediting Bowie/Queen on the track.

Significance

There's really not a ton of meaning directly related to design with this one (except for, don't use other people's creative work!). But I couldn't resist adding it. This is one of the most hilarious copyright cases ever.

There are more cases out there! Any you have learned from?

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5 famous copyright infringement cases (what you can learn)

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Copyright is never an easy issue. From Rogers vs. Koons, to Vanilla Ice vs. David Bowie, learn from these 5 famous copyright infringement cases...

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The nature and quality of different products is usually determined from the logos which are on them. An MP3 player, for example, is simply that unless the Apple logo is emblazoned upon it somewhere, for it is this branding which transforms an arguably ordinary product into something a little more special.

Looking at the logo design for a particular business can stir specific emotions and/or expectations in consumers. This means that many companies are eager to protect the intellectual property of their logo in an attempt to shield the image of their brand from harm.

Even logos which are only vaguely similar to those representing pre-existing businesses are easy targets for legal action.

In no particular order, here are 5 recent (and questionable!) logo design copyright infringement lawsuits which I found to be quite interesting:

Skullcandy VS Skelanimals

Extreme sports headphones brand Skullcandy has filed a federal lawsuit against Skelanimals - an accessories and apparel brand of cute but skeletal animals - it was revealed earlier this week (16/11/2011). The reason for this is that the logos of both companies comprise a skull shape which the plaintiff feels "is likely to cause confusion [...] or deceive the consuming public" according to the U.S. District Court case file.

Skelanimals claims its content - including the company's logo design - have been used since the year of the brands' inception (2003) and that all intellectual property was successfully copyrighted back in 2008. It is interesting to note that whilst the Skelanimals logo has so far appeared on everything from T-shirts to mugs, to jewellery, soft toys and stationary, it is the fact that the logo has also recently appeared on headphones that has seemingly irked the audio manufacturer. Skullcandy claims that they are "recognized globally" for their skull, "particularly in the headphones category."

The case continues.

Sony Ericson VS Clearwire Corporation

January 2010 saw mobile communications company Sony Ericsson filing legal action against wireless internet service provider (WISP) Clearwire Corporation for having a green swirly logo similar to their own. The action was taken shortly after Clearwire announced plans to move into the mobile phone market. The Sony mobile-division had demanded $150,000 in cash from Clearwire to cover its legal fees, in addition to three times this amount for the copyright infringement of their logo.

However, Sony Ericsson decided to drop the lawsuit earlier this year in May, once Clearwire established that they no longer had any immediate plans to launch a smartphone on to the market. Clearwire's change of heart was no doubt a combined result of the popularity of its core technology - WiMAX - decreasing worldwide, the company's primary customer Sprint turning to the competition and Intel selling of its Clearview shares.

Apple VS Apfelkind

The owner of a small cafe in Germany by the name of Apfelkind (meaning "apple child") was shocked to receive a cease-and-desist letter back in October this year from computing company Apple. Apple issued the letter in a bid to prevent the eatery from using the image an apple within their logo - a red, apple-meets-child's-face design.

Apple stated that the cafe's logo could "confuse customers" (particularly due to the inclusion of a leaf) and see consumers assume that the cafe is somehow affiliated with the tech giant. Press accounts of the case state that the intentions of Apfelkind's owner - Christin Roma - include applying her logo to fashion garments, toys and its services once the cafe moves into the realm of a franchised chain and this is what has Apple most concerned.

Although Roma admits to being a fan of Apple products herself, she is refusing to drop her patent application for the logo. The case continues...as does Apple's relentless battle to sue any company which dares bear an apple fruit within their logo!

Nike VS Point 3 Basketball

The Jordan Brand-arm of the Nike Corporation released its first signature shoe for basketball-star Dwayne Wade back in April this year, marked with a logo comprising a number 3 set in cross hairs. Just a few weeks later however, basketball hoops and apparel manufacturer Point 3 Basketball filed a claim for trademark infringement of their logo, claiming that the one which appeared on Wade's shoe was "virtually identical" to their own.

The two brands launched a joint press release last week stating that a "mutually agreeable business resolution" had now been reached (a pay-off, perhaps?) The second Wade-branded shoe meanwhile was too announced last week and displays a completely rethought logo (which resembles a "3", "M" and "W" all at once) on the tongue of the sneakers.

Variety VS The Vandals

Back in 2004, Californian punk band The Vandals landed themselves in a spot of legal bother when they released their album Hollywood Potato Chip with the bands' name emblazoned on the front in the style of the logo for entertainment-trade magazine Daily Variety.

The magazine took an instant dislike to the fonts' resemblance, for the title of the release is a negative expression of the materialistic culture of Hollywood - a message Variety did not want to be associated with. The case was eventually settled with the band agreeing to redesign the cover art to include a different font.

In April 2010 however, Variety once again tried to sue to band in the wake of several images of the original cover design appearing on certain websites. The Vandals continue to claim that they are not responsible for the third-party distribution of such images and have headlined several benefit gigs in order to raise money to cover their ongoing legal fees.

Interestingly, it is the bands' bassist and law student Joe Escalante who is representing the band in the case. Escalante says that he has been studying incredibly hard to ensure that he is prepared for court.

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Logo Copyrights and Wrongs: 5 Interesting Recent Infringement Lawsuits | Top Design Magazine - Web Design and Digital Content

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The nature and quality of different products is usually determined from the logos which are on them. An MP3 player, for example, is simply that unless the Apple logo is emblazoned upon it somewhere, for it is this branding which transforms an arguably ordinary product into something a little more special.

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Your brand name was chosen and your logo was designed, now you need to protect your brand assets: logo trademark is fundamental to brand building.

There are many unscrupulous people out there ready to infringe on your creative intellectual property.

You must copyright your logo to prevent it from being stolen.

This applies for big brands like Apple, and small startups as well - no matter the size or the industry your company operates in.

Should I copyright or trademark my logo?

How simple it is, when you hear intellectual property attorneys describe the difference of both: copyright and trademark laws.

Copyright covers creative works of expression fixed into a tangible medium of expression.

Trademark covers business names, slogans and other items used to identify it in the marketplace.

However, there is a great deal of overlap between two areas of copyright and trademark, and businesses are known for using both to protect their logos from undesired use.

Copyright is designed to protect against almost all unlicensed copying that is outside of fair use.

Trademark only deals with use of the mark that causes confusion in that company's marketplace.

In short, trademark is designed not to prevent copying, but confusion in the marketplace, thus severely limiting what uses of the logo can be considered infringing.

We need to delve deeper in the copyright/trademark law to understand the difference.

In this article, I will provide you with a complete instruction about the correct use of both copyright and trademark laws.

First, let's differentiate these two terms.

The only way to achieve protection is through a copyright, trademark or both. And here lies the confusion with logos - many of them actually qualify for both trademark and copyright protection.

What's the difference between copyright and trademark?

In order to have a better understanding of how copyright and trademark work, it's helpful to know which type of intellectual properties each one protects.

The biggest difference between them is that copyrighting won't protect your brand's name and logo from infringement, but a trademark will.

Copyright is made for artistic works protection (i.e. its authorship)

A common symbol for the copyright is ©, but you can also add 'Copyright' or 'Copr.' and even your name and year the work was published.

For example "© 2018 by ebaqdesign" at the bottom of my website claims right to everything on it.

Trademark is made to prevent confusion in the company's marketplace.

There are different symbols for trademark protection:

™ for the unregistered trademark

℠ for the unregistered service trademark

® for the registered trademark

The process of both copyright and trademark takes time to get final approval, but by starting now you preserve your rights to ownership and thus legal remedy.

On the other hand, if you don't have a trademark or copyright you may not be able to sue another party for infringement of your logo.

Did you know that you already have a copyright in your logo at the moment you draw it?

Did you know that due to The U.S. Copyright Law, every original work of authorship is under protection, automatically.

On it's most basic level, copyright of unique visual design is automatic, and originates with the designer.

Any unique logo that I designed for a client will have automatically had copyright assigned to it, and to me.

Read more about copyright basics for graphic designers on AIGA's website.

The copyright law protects "original works of authorship" expressed in a physical form (i.e. books, movies, songs, paintings, photos, choreography, logos etc.)

However, copyright does not protect facts, ideas, systems, or methods of operation, it protects the only the unique way you expressed these things in your work.

In other words, copyright law protects the "expression" of an idea, but copyright does not protect the "idea" itself.

The distinction between the idea and the expression is fundamental in the Copyright law.

Read more about it in Copyright Act of 1976.

Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly.

In order for a work to have copyright protection, it must reach a requisite level of creativity.

Many logos, however, do not - this is one difficulty about logo copyright registration.

Since copyright can't protect a name, colors or the design of the logo, most simple logos simply do not have the required level of creativity to be considered copyrightable.

When you register the copyright, you are able to sue everybody, who tries to copy your work or exploit it for his own purposes.

Since your copyright is registered federally, you are in charge of your property usage, publishing, distribution, and presentation to the audience.

That's why you must must transfer the copyright to the client at the time of the logo artwork delivery.
How to transfer a logo copyright to the client?
While a logo designer automatically gets the copyright, the transfer of the existing copyright to the client, isn't done automatically.

Neither is it a 'given' when invoices are paid, and designer and client part ways.

The logo rights that has to be initiated by the designer, or suggested by the client.

So after the logo is selected, and no further changes need to be made, I sign a written contract, that states I am transferring all ownership and copyright to my client.

Still have some questions that remain unanswered? Read more about the Copyright law on Wikipedia.

3. Trademark Protection

Trademark is about protecting things that identify a business in the marketplace and logos are among the most important means of identification.

As such, logos are generally protected by trademark and enforceable as such.

Trademark protects all details of your work (names, words, colors, font etc.)

Trademark can be both words combination, symbol or type of design, which differentiate your particular brand from many others, who are offering same products and services, as you.

While copyright protects your work authorship, a trademark protect all the details so no one else can use it.

Trademark protects details like: mark, name, font, colors.

If you want to protect your brand identity you have to register a trademark for your company name, logos, and slogans.

By using the trademark symbol, you notify other people that products they use are your property.

In order to prevent unauthorized use of your mark by third parties, you have to choose a strong one.

Brands, which are the most powerful nowadays, are the excellent example of how strong mark should be created.

Looking at the brands such as Google, Apple or Microsoft we can see examples of how to create a strong trademark:

registering the name, which doesn't exist as the word;

a simple word, which is totally unrelated to the products you produce;

words, which are generic to your product (f.e. 'Cookies' for a specific type of cookies) either obviously describe things you produce(f.e. 'Peanut bar' for the bar with the peanut).

The three symbols that represent trademark are the circled R (®), little capital letters TM (™), and the little capital letters SM (℠).

The circled R can only be used once you have a federal registration. This means you've applied for it and received a trademark registration from the US government.

This is serious, because using that circled R is actually a violation of federal law unless you have the trademark, even when application is pending.

However, you can use the (™) from the moment you apply, or before.

For example:

1. You're a lawyer that offer legal services. It's a service mark (℠).

2. You sell goods, e.g. clothing. It's a trademark (™).

Have some questions about the trademark law what remain unanswered? Check this Trademark FAQ.

4. Which Protection to Use

If you design a logo for yourself or your business, you actually may, if the logo qualifies, have two forms of intellectual property protection on it:

Trademark to prevent others from using it in the marketplace

Copyright to prevent most other unwanted copying

It may take time to get final approval for a trademark or copyright, but starting the process preserves your rights to ownership and thus legal remedy.

Logo design protection is a complex part of intellectual property law because they often overlay.

If you don't have a trademark or copyright you may not be able to sue another party for infringement on your logo.

As we already established, copyright is responsible for the ownership of the artistic work, while trademark protects your brand authenticity.

To specify, trademark protection relates more to confusion in the global/local market, rather than to the unauthorized use of the logo.

This means both the terms protect your intellectual property, but different its aspects.

In the United States, you don't have to register copyright and trademark.

You own copyright as soon as you put your work on the paper or on the computer so as the trademark just when you started to use name or logo for business promotion.

Both copyright and trademark help you to secure your rights.

In case of copyright, you protect your original idea and logo design from being stolen.

However, trademark never expires, as long as your brand exists people will recognize your business with it.

Although registered trademark protects all details your logo was made from, you won't be able to protect your logo authorship without registered copyright.

In assume that your home country is US. If you're looking to for specific instructions on how to do the process in the UK - check this article instead.

Before claiming the copyright, do a research among all existing logos on the U.S. Copyright Office website to ensure your logo design is unique.

Besides, it is crucial to officially define, who holds the copyright for the logo (the creator of logo or business, for which this logo was made) to prevent possible conflicts about further actions.
How much does it cost to copyright a logo?
It can cost you anywhere from $35-85 depending if you apply online or by mail, and if you select the category (less work for USCO).
How to copyright a logo step-by-step:

1. Fill out the application online on the official site of United States Copyright Office. Besides, you can also submit the application in a paper form.

2. Pay a registration fee (for the logo it's $39) with a card, electronic check or your deposit account with the U.S. Copyright Office.

3. Send nonreturnable copies of your logo (if it was already published somewhere you have to send two copies if it wasn't yet - only one).

4. Wait for a confirmation mail.

Despite the way you apply for the copyright and the application phase, your copyright is effective since the date you submitted the form, NOT the date of its approval.

As for registered copyright, you can protect usage of your logo, its publishing, distribution, and control how it is presented to the public.

Having a registered trademark helps your clients to differentiate products from services your brand offers.

But before you start you trademarking process:

Make sure that your logo is available for your adoption and use

As it reads on the Jacob Cass' blog.

As well as for the copyright, you should search the USPTO's database for trademarks, similar to your logo, and evaluate ones you find for possible conflicts.

It will save you both money and efforts you could spend for the whole registration procedure because the USPTO doesn't make any research for similar logos until the very moment you submit the application.

For registering a trademark for your logo you have to:

File an application via Trademark Electronic Application System (TEAS), which requires a detailed description of your logo and what it represents.

Check the status of your application (normally it takes about 4 months to finish the process, but it may vary).

Set up a "trademark watch" service to protect your rights.

In case of registered trademark, you can protect your brand identity and, what is the most important - prevent usage of your name and design by third parties.

When your work is copied, distributed or publicly show without the permission of the copyright owner it's considered the copyright infringement.

In order to get a compensation, you have to prove that person copied your work.

After you proved that infringement was made, you can sue the infringing side.

In order to avoid copyright infringement treat an artistic logo the same as you would any other photograph or painting and don't make any use of it that you wouldn't if it weren't a logo.

In fact, you are much more likely to have a copyright dispute over a stock photo that you place on your blog than a logo really.

8. Trademark Infringement

When the third party is using your trademark without authorization, which causes confusion about the source of the product it is considered trademark infringement.

In order to claim trademark infringement, you have to prove you own a valid mark and it has a priority to the infringing one, and that infringing side is actually causing confusion in the customers' minds.

Similarly to copyright infringement, when you prove your brand is actually suffering from trademark infringement, you are able to sue defendant mark.

Did you know that companies, such as Tiffany, have trademarked their core brand colors?

This simply means e.g. that Pandora can't use the turquoise tiffany color.

The law says that your trademark is infringed upon when another company's brand elements are similar enough to confuse consumers.

Trademark infringement not only make a loss in sells, but also hurts the brand when another one use similar elements but produce inferior quality.

9. Logo Infringement Cases

If you're still in doubt about registering the copyright and trademark for your brand's logo, these examples will convince you of their importance.

Apfelkind (eng. apple child), a small cafe in Bonn, Germany, suddenly received a logo copyright claim from the Apple.

Due to the Apple, cafe's logo (red apple within child's face) confuses customers and let them think that cafe is connected with tech giant in some way.

As long as the owner of cafe Christin Roma refuses to change her cafe logo, Apple won't give up to sue everybody who dares to use an apple in the logo.

Louis Vuitton VS Louis Vuitton Dak

One of the funniest logo infringement cases was a Louis Vuitton claim against a South Korean fried chicken restaurant - Louis Vuitton Dak.

The restaurant wasn't only using the mirrored logo of the famous brand for their packages, but even stole the name of it.

When restaurant rapidly changed its name to LOUISVOI TONDAK, Lous Vuitton sued the fast-food company for $1 450 000 more for non-compliance.

Remember:

Your ideas and works are unique only when they belong to you exclusively

Many brands try to avoid expensive legal procedures with a constant change of their names or logos like Louis Vuitton Dak did.

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How To Copyright And Trademark A Logo #branding #logodesign #graphicdesign

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Your brand name was chosen and your logo was designed, now you need to protect your brand assets: logo trademark is fundamental to brand building. There are many unscrupulous people out there ready to infringe on your creative intellectual property. You must copyright your logo to prevent it from being stolen.

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Before the 1976 Act, the last major revision to statutory copyright law in the United States occurred in 1909. In deliberating the Act, Congress noted that extensive technological advances had occurred since the adoption of the 1909 Act. Television, motion pictures, sound recordings, and radio were cited as examples.

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Legal Topics Intellectual Property Trademarks

What Is Logo Theft?

Logo theft is a violation that occurs when one party steals or uses another party's trademarked logo without their permission. This is a more specific term for trademark infringement, and can take many forms. It typically involves the theft of a trademark or a service mark. For instance, logo theft can consist of:

One party stealing the template from a company's business logo and using it for profit

Creating a new logo similar to the original logo so that it will confuse consumers into thinking that both logos came from the same company

Taking the logo off of a product and placing it on a different product

Logo theft is very common when it comes to clothing items. Many products are counterfeited solely due to the theft of a company logo. Without the logo, counterfeiters might not be interested in producing a fake product. Many graphic design conflicts also involve some sort of logo theft issue.

Are There Any Legal Penalties for Logo Theft?

Like all forms of infringement, logo theft is met with serious legal consequences. Legal penalties for logo theft can include:

Jail or prison sentences

Confiscation of unauthorized products or materials

Cease and desist injunctions

Criminal fines

Civil damages for loss of profits

Are There Any Defenses for Logo Theft Charges?

Logo theft charges may be defended against depending on the facts surrounding the situation. The following circumstances constitute defenses for logo theft:

The logo did not actually constitute a valid trademark (for instance, it was never used in commerce)

Likelihood of confusion is low (that is, consumers are clear that the logo identifies a product separate from the one being claimed)

The original logo or trademark has become generic - i.e., the logo does not specifically identify any type of company product or service

An example of a valid defense in a logo theft charge is that the logo does not identify a specific product or service (generic trademark defense). For instance, one company cannot sue another one simply because the competitor wears the same shade of green uniforms as theirs. Logo theft must involve the unauthorized appropriation of the words or visual design that clearly identifies a product or service.

Should I Hire a Lawyer for Assistance with Logo Theft Claims?

Logo theft is a serious offense, and can lead to some far-reaching legal consequences. It may be in your best interest to hire an intellectual property lawyer in your area if you have any disputes, inquiries, or concerns involving logo theft. Your attorney can perform legal research for you and advise you on your rights and legal decisions. Also, if you need to appear in court or file a lawsuit, your lawyer can provide you with professional representation during the process.

Last Modified: 04-30-2018 08:18 PM PDT

Link to this page: Law Library Disclaimer

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Legal Topics Intellectual Property Trademarks Logo theft is a violation that occurs when one party steals or uses another party's trademarked logo without their permission. This is a more specific term for trademark infringement, and can take many forms. It typically involves the theft of a trademark or a service mark.

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By Zachary J. Wadlé

Missouri teenager Jimmy Winkelmann grew weary of his high school classmates' blind and materialistic infatuation with The North Face products, and decided something had to be done. Mr. Winkelmann's answer was to come up with his own competing apparel line to mock the ubiquitous North Face fleece jackets found on his high school campus. He called his line "The South Butt" and designed a suspiciously similar logo to that of The North Face.

According to ABC news, Winkelmann said the idea for The South Butt was born a few years ago when he and his high school pals were poking fun at the kids at their private high school who satisfied their need to belong by buying the exact same jackets and vests. "People thought it was so cool to wear The North Face fleeces," he said. "Everybody had to have them." The term "South Butt" started as a joke, he said, and "then it just, like, escalated." Winkelmann turned to his uncle, who owned a business printing marketing items like T-shirts and pens, for help in manufacturing the first South Butt T-shirts. Ultimately, The South Butt clothing line expanded to include T-shirts, ladies' track shorts, both $19.99 each, and fleeces, which retail for $75.29. Winkelmann claims the entire company was founded not to rip-off The North Face, but to get people thinking about the alternatives.

The North Face apparently does not want people thinking about alternatives. In August, lawyers for The North Face sent Winkelmann a cease and desist letter requesting that Winkelmann stop using The South Butt name, and The South Butt logo. There are undoubtedly similarities between the two logos. Both logos are red squares with white lettering and design. The North Face logo features a half-dome with three ridges. The South Butt logo uses a similar design, but upside down, and with two ridges that Winkelmann confirmed are meant to infer "butt cheeks."

The North Face's counsel wrote to Winkelmann that the companies' logos are similar enough to possibly cause "consumer confusion as to the source, sponsorship or affiliation of particular promotions and services that could dilute or tarnish the distinctive quality of the famous and distinctive [The North Face] marks." The North Face requested that Winkelmann stop sales, production and promotion of his product, and also asked him to drop his trademark application for The South Butt LLC and its logo.

To respond to The North Face's missive, Winkelmann enlisted attorney Albert Watkins, who is a friend of Winkelmann's father and reportedly traded his services for a good bottle of red wine. Mr. Watkins wrote to The North Face: "I am compelled to respectfully disagree with the posture or assertion that 'The South Butt' would in any way give rise to confusion on the part of any person. In fact, the sense of parody employed by Jimmy within the context of his South Butt undertakings clearly demonstrate a respectful, if not flattering 'anti-North Face' posture designed in all respects to distinguish itself from any and all North Face products."

Mr. Watkins' letter invokes a primary affirmative defense raised by defendants in response to trademark infringement claims. Winkelmann's defense rests on his claim that The South Butt represents a protected parody of The North Face's trademark rights. Trademark parody involves the appropriation of another's mark as a well known element of popular culture, and then building on it to contribute something new for humorous effect or social commentary. The Fourth Circuit's decision in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 ("Louis Vuitton") is an important trademark parody decision because it provides a detailed analysis of the parody defense to trademark infringement claims.

Haute Diggity Dog, LLC was a company that sold a number of parody pet products including products named Chewnel No. 5, Jimmy Chew, Dog Perignonn, Sniffany & Co., and Dogior. The product which was the subject of the Louis Vuitton lawsuit was Haute Diggity Dog's parody pet toy called CHEWY VUITON. The toy mimicked the shape, design and color of a Louis Vuitton handbag, but was intended as a chew toy for dogs. Unfortunately for Haute Diggity Dog, Louis Vuitton was not amused by such haute couture for dogs. In fact, Louis Vuitton was so doggone incensed, it filed a lawsuit against Haute Diggity Dog alleging trademark infringement of its Louis Vuitton mark.

The first question facing the Court was whether or not CHEWY VUITON was a trademark parody. As stated by the Court, a trademark parody is a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner. It must convey two simultaneous and contradictory messages: that it is the original, but also that it is not the original and is instead a parody. This latter message not only differentiates the parody from the original but must also communicate some articulable element of satire, ridicule, joking or amusement.

The Fourth Circuit found Haute Diggity Dog's use of CHEWY VUITON was a parody. The CHEWY VUITON toy was found to be similar in its name, monogram, design and coloring, which clearly indicated to the Court that the toy was an imitation. The Court also noted that all of the design and name elements were different. (e.g., Chewy/Louis, Vuiton/Vuitton). Each of the design elements Haute Diggity Dog selected to create the parody was close, but not identical to the design elements of the Louis Vuitton handbags

The Court then turned to the question of whether Haute Diggity Dog's parody infringed upon Louis Vuitton's trademark rights. The Court found that the strength of the Louis Vuitton mark was a factor that weighed in favor of Haute Diggity Dog. Normally, a strong mark favors the senior trademark owner, but, in the case of a parody, the fame of the mark allows consumers to readily perceive the target of the parody. Similarity of the marks themselves also favored Haute Diggity Dog. The Court found that the parody was sufficiently blatant so as to easily invoke the famous Louis Vuitton trademark in the mind of consumers, yet still distinguish the products. The similarity, or in this case dissimilarity, of the products also was in Haute Diggity Dog's favor as one product was a $20 dog chew toy and the other was an expensive designer purse. With respect to similarity of facilities and advertising channels, the Court found it relevant that Haute Diggity Dog's products generally were sold at pet stores with other pet products, including other parody products, while Louis Vuitton handbags generally were sold in Louis Vuitton boutiques or department stores and advertised in high-end fashion magazines. Based upon these circumstances, the Court found that Haute Diggity Dog did not infringe upon Louis Vuitton's trademark.

Will Mr. Winkelmann's "The South Butt" brand prevail against The North Face's infringement claim? The question is difficult to answer with certainty. Undoubtedly, The South Butt was intended by Winkelmann to invoke The North Face brand in the minds of consumers for the purposes of mocking blind consumer allegiance to The North Face brand. However, unlike the facts in Haute Diggity Dog, Winkelman's products do not seem to be readily distinguishable from The North Face products. Winkelmann sells a South Butt fleece jacket, just like the North Face does. Winkelmann apparently markets his South Butt apparel to the same consumers that the North Face does. These facts tend to support The North Face's position, and may cause trouble for Winkelmann.

What can be said with certainty is if you intend to use a trademark parody in your business, you must be prepared to be sued, or at minimum, harassed by a larger and more well-known company. By definition, the more famous a trademark, the more likely a parody will be effective. Is your trademark important enough to be on the other side of a large and presumably well-funded adversary like Louis Vuitton? Unless you are lucky enough to have counsel like that of Mr. Winkelmann who will conduct your defense for a good bottle of wine, you must be prepared to expend a considerable sum in legal fees to prove that your mark is a parody and does not infringe upon the rights of another company.

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The Parody Defense to Trademark Infringement: The North Face vs. The South Butt | The IP Law Blog

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By Zachary J. Wadlé Missouri teenager Jimmy Winkelmann grew weary of his high school classmates' blind and materialistic infatuation with The North Face products, and decided something had to be done. Mr. Winkelmann's answer was to come up with his own competing apparel line to mock the ubiquitous North Face fleece jackets found on his high school campus.

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Copyright and Public Domain: How to use it and where to find Free stuff