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Trademarks

Fine art has long enjoyed copyright protection. The law recognizes the right of a painter or sculptor to the following exclusive rights set forth in Section 106 of the Copyright Act (17 USC § 106 (1)):

  1. The right to reproduce the art work.
  2. The right to prepare derivative works based on the art work.
  3. The right to distribute copies of the art work to the public.
  4. In the case of audio visual works (i.e. performance art), the right to perform the work publicly.
  5. The right to display the copyrighted work publicly.

Section 106 provides the legal basis for an artist to stop the distribution of unauthorized copies of her work. The sale of a painting, absent an assignment of the right to reproduce the work, does not give the purchaser the right to make copies. This is true even where the work was commissioned by the owner.

At times, however, copyright protection fails. While it is clearly impermissible to exactly copy a specific work by an artist, what about the artist's style? Would Dali have a protectable interest in his melting watches?

The Persistence of Memory, a jewel of a painting found at the Museum of Modern Art in New York, is reproduced below. Next to it is a clock inspired by the painting.

Can or should Dali's estate be able to prevent the sale of the clock? U.S. Copyright Law would provide little support. While it could be argued that the clock is a derivative work of art and therefore protected, this is likely to fail. It should be remembered that, while copyright law provides protection for creators of works of art for limited periods of time, the goal is to promote creative works for the benefit of the public. Once the artist's limited but exclusive period of time has passed, the work is in the public domain. At that point, anyone is free to make copies of and profit from the work.

Trademark law provides another potential source of protection for an artist. In the case of Romm Art Creations, Ltd., et al. v. Simcha International, Inc., 786 F Supp. 1126 (1992), the U.S. District Court for the Eastern District of New York considered the following: Itzchak Tarkay was an Israeli artist of international renown with a particular style. One of his lines was known as "Women in Cafes." The plaintiffs in this case had the exclusive right to distribute posters of that line. Patricia Govezensky was also an artist. She began to produce very similar posters to Tarkay's. When she persisted, the plaintiffs brought suit against her and her distributors claiming a breach of the Lanham Act. Section 43 (a) of the Lanham Act, 15 USC § 1125 (a) provides a statutory remedy for trademark or trade dress infringement and unfair competition to a party injured by a competitor's false designation of the origin of its product (passing a product off as someone else's work), whether or not the aggrieved party has a registered trademark... In short the Lanham Act provides civil redress to one damaged by unfair competition through false or misleading advertising and/or trademark or trade dress infringement. Id., at page 1133-34. In this context, the Lanham Act is designed to prevent unprivileged imitation and the copying of the appearance of a product. In order to prevail, the plaintiff (Tarkay's distributor) had to establish that the trade dress of the Tarkay work (in essence, appearance):

  1. was non-functional (not part of the necessary utility of the object);
  2. had acquired secondary meaning (i.e. was recognizable as a Tarkay); and
  3. there was a likelihood of confusion as to the source of the competing products.

In making its decision, the Court considered both greeting card and book cover cases, each of which found a Lanham Act violation. Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268 (10th Cir. 1988) and Harlequin Enterprises Ltd. v. Gulf & Western Corp., 644 F.2d 946 (2nd Cir. 1981).

The Court in this case found, on the basis of the following, that Tarkay had a protected trade dress in the style of the "Women in Cafes" series:

  1. His works entered the market prior to the defendant's.
  2. His paintings met the criteria of an arbitrary or fanciful trademark based on their distinctive visual impression.
  3. There was a likelihood of confusion between the works of Patricia and Tarkay.
  4. There was evidence of actual confusion.
  5. Patricia had the opportunity to view Tarkay's work.

The Court issued an injunction preventing the sale of Patricia's work.

This case has been criticized yet remains good law. It, along with the Hallmark and Harlequin cases, provides support for artists who have developed unique styles.

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