Friday Feature: Kim Minichiello

"Bird's Eye View" original watercolor by Kim Minichiello

Hi Everyone,

I have a fabulous Friday Feature today:))  If you've been reading my blog lately Kim has been a guest on my blog.  She filled us in on very important information about trademarks and copyrights.  So today I wanted to show you her fabulous works of art.  

To see more of Kim's work visit her website and blog

How did you get your start?  What’s your artist journey so far?

Since I was little, I can remember drawing or doing creative things.  My mom was a big influence, we always had a garden in the summer and I learned a lot about plants and horticulture.  She is an excellent cook and instilled in me a passion for food and cooking.  We also did a variety of needlework; sewing, knitting, and embroidery.  I feel all of these things are artistic endeavors, and I’m so glad I was exposed to them. 

I went to Purdue University, and received a degree in Environmental Design, which is Interior Design with an emphasis on architecture.  I took as many art classes as I could and was exposed to and became interested in textiles. I worked at a design firm in Indianapolis, Indiana, while attending college, and got a good foundation there in sketching and rendering interiors.  As a designer, I felt it was important to be able to illustrate your designs and ideas.  

Two years after I graduated from college, I got a job at Walt Disney Imagineering and became an Imagineer.  They were designing Disneyland Paris and I was part of that design team.  While working at Disney, I still pursued my interest in textiles and created one of a kind garments, home furnishings, and children’s clothing after my daughter was born. I also studied drawing and painting at The Art Center College of design, with artist Mark Strickland.   At that time, I decided to continue my relationship with Imagineering on a freelance design basis, to pursue other endeavors.  One of those was art licensing.  I co-founded a design studio with one other designer, where we created digital art for the art licensing market.  

In 2007, my family and I had the opportunity to move to Hong Kong.  Until that time, most of the painting I had done was for interior or architectural rendering or illustration, or all digital. I always wanted to live in Asia and was so inspired by my surroundings that I started painting for my own enjoyment. I met some artists there who I am still friends with, who taught and inspired me.  I also started plein air painting in both oil and watercolor in Hong Kong. Shortly after our time in Hong Kong, we moved to Paris, France for a few years.  I had worked and lived there previously, but this time I become a self imposed student of art, visiting museums, painting and sketching as often as I could and have continued to this day.

Where were you born?

I was born and grew up in a small town, Logansport, Indiana which is about 75 miles north of Indianapolis.  

"Tai Guardian" original watercolor by Kim Minichiello

If you could live anywhere where would you live?

This is  tough because I have traveled and lived in some amazing places.  To be honest, I love where I live now in Florida. I live in Windermere, in the Orlando area.   I love tropical climates and Hawaii is also one of my favorites.  One thing I do miss though, is being able to walk to places as I did living in cities like Hong Kong and Paris. Here in Florida I pretty much have to drive everywhere.  I’m also a museum junkie and miss living in an area where there are a number of major art museums close by to visit regularly.  If there was a place like I live now, where I could walk for shopping and dining and have a major art museum or two near by, that would be perfect!  Anyone know where that is?

What’s your favorite thing to paint and why?

Right now I love painting things relating to Asian cultures. Even before living there I have had an affinity for them. I really enjoyed and was inspired by my experience of living in Hong Kong and traveling to Mainland China, Japan, Thailand, Indonesia, Cambodia and Nepal.  The things that I saw and experienced in all of these locations really speak to me when I’m working on a painting. Through my paintings I am immediately taken back there and I can recall many wonderful memories.    

Could you talk about your painting techniques?  

I paint watercolor and oil, recently, I’ve been focusing more on watercolor so I’ll talk about that.  I’ll either use a photograph from my travels, or a plein air sketch as inspiration.  I’ll think about the subject for a while, what drew me to it, and design the painting in my head to get an idea of where I’d like to go.   I might use a number of photos for inspiration to come up with the final design.  I sometimes use Photoshop as a tool to work out design, size and composition or will sketch out my ideas on paper.  Then I’ll draw out the design on the watercolor paper, I really enjoy this process too.  Sometimes I’ll work out a color palette ahead of time and other times, I’ll dive right in.  I paint either wet on wet, or wet on dry or wet on moist to get the desired effect I want.  I’m not really a glazer, I like more direct painting to get in and get it done.  I pay close attention to value, hard and soft edges, and color temperatures next to each other. With watercolor, I try to have somewhat of a plan when I paint each area, but I also try to be spontaneous, and let the paint do what it wants, that’s the beauty of watercolor!  I find it to be a challenge and somewhat of a mind game to be in control and be intuitive and spontaneous at the same time.  That’s what I love about this medium.   I put my painting up and stand back from it often to make value judgements, especially when I’m working big.  The final phase I call the tweaking phase, where I’ll push and pull value and add details.

"Mayan Gate" original watercolor by Kim Minichiello

Do you have go-to paints/colors, what are your favorites?

Once I took a color theory workshop with Pat Weaver, and have since used a more limited palette and mix more of my color. The three primaries I use most are, Aureolin Yellow, Permanent Rose and Cobalt or French Ultramarine blue.  That being said, I still can’t help having at my disposal a variety of other colors I’ve learned to like.  But, I usually mix my colors.   Indigo, Quin. Burnt Orange, and Quin. Yellow seem to creep into most of my paintings.

Do you have a favorite artist?  Who has been your biggest inspiration?

This is hard, there are so many but I’ll try to be brief!  I would have to say first my family is a huge inspiration to me.  My husband is a designer, artist, and plein air painter, and my daughter is an actor and performing artist.  I’ve learned so much about painting and the theatre from them.  I love that my husband and I share the same passion and he is so supportive of my art career.  As far as workshops, my friend and fellow artist in Hong Kong, Isabelle Lim, was a huge inspiration, taking a watercolor workshop with her, I got that light bulb or aha moment where I really started to understand watercolor and fell in love with it. Likewise for Janet Rogers, where I  learned to stretch myself and paint more spontaneously and loose.  Last year at the Florida Watercolor Society convention, I took Nicholas Simmons’ workshop, and he inspired me to paint big, which I’m really enjoying.

As far as favorite artists, I have had the wonderful opportunity to visit museums all over the world and study and see in person a variety of amazing work.  Whenever I stand in front of a: John Singer Sargent, oils and watercolors, Joaquin Sorolla, Edouard Manet, Edouard Vuillard, Franz Bischoff, Edgar Payne, and most of the French Impressionists, to name a few, my heart skips a beat!

What have been some of your crowning achievements?

I think first and foremost my family and watching my daughter become the creative, talented, independent person she has become.   Starting my creative career as a designer and my time with Walt Disney Imagineering, I’ve had the opportunity to work on almost every Disney Park and travel all over the world either doing research for projects or living where the parks were being built as part of the installation and design team.  A few years ago, I had the amazing opportunity to design the stained glass windows as part of the castle suite for Cinderella’s castle in the Magic Kingdom.  Most Imagineers can’t say that they have had the opportunity to work on a Disney Castle!  Even though I have been painting a number of years for my own enjoyment, I just recently put myself and my work out there to start my fine art career.  In just a years time, I have gotten juried into Florida Watercolor Society, Central Florida Watercolor Society, Women Painters of the Southeast, and Georgia Watercolor Society’s Annual Exhibitions, all on my first attempt.  I’m very proud of that and feel honored to be in the company of so many talented artists.

"Lion Dance" original watercolor by Kim Minichiello

What are five things you would like to happen in your life in the next five years? Dream big here:)

1. Have my work juried into one of the biggies, NWS, AWS, and International Shows in China and Europe, and win an award in a juried exhibition.
2. Teach, possibly do a workshop in France, and make many new wonderful artist friends.
3. Write a book or get published.
4. Continue to travel the world and paint and live internationally again.
5. Do a plein air event.
6. Judge or curate an art exhibition.
7. Have my art bring enjoyment to people, make them stop and look at things in our amazing world in a different way, and acquire a number of collectors so that my art will go to good homes.
8. Stay healthy and continue to paint as much as I can.

Sorry that’s more than 5 but you said to dream big!

What is your advice for other artists who are just getting started in their career?

Show up and paint, don’t make excuses that you aren’t good enough or why you can’t paint that day, etc.  Paint and get to know the medium you enjoy working with. Play and try different techniques and methods, make some discoveries until you hone in on the methods and materials you prefer.  Be a perpetual art student, read magazines and books on all aspects of painting, and study works of other master artists. Try to discover why you are you drawn to their work?  Take workshops or classes from artists whose work you admire.  I have never taken a workshop where I didn’t have some take away that I use in my painting practice.  If your goal is to get into juried shows.  Don’t give up, we all get rejections.  Judging can be subjective, even Nicholas Simmons said at the critique for last year’s FWS Exhibition, if he had judged the show on any other given day that the award results may have been different.  

What is the best advice that you have received as an artist?

Two recent things come to mind and are resonating with me.   I attended Lori Putnam’s demo at the Women Painter’s of the Southeast Exhibition, she was also the judge for the show.  She said while judging she would be looking for paintings that were painted from the soul versus the ego.  That really made me stop and think.  I took this to mean that if we as artists have a personal connection to our subject matter, our personalities will shine through our work.  When I am connected to my subject matter I enjoy the painting process a lot more and I feel the end results are better. In other words, paint what you love and enjoy the process.

The other piece of advice, I just read in the current issue of Plein Air magazine.  Ken Auster says, “Teachers keep telling you to paint 100 pictures, as a way to get better and find your style.  I’m here to tell you 100 bad paintings won’t get you anywhere.  Effort without critical thinking, will just perpetuate bad painting.  Hard work has to be combined with reading art books, looking at museum paintings, studying with good teachers and honest criticism from yourself and from others with more experience.” 

You have owned your own company and delved into the world of art licensing, where you worked with over 35 manufacturers, Target, Stein Mart, etc. Can you talk about your experiences with this?

I worked with one other designer and a licensing agent.  Analyzing trends in the current market place, I created art using Photoshop and Illustrator, sometimes using vintage imagery.  Compiling different themed collections that could be licensed for a wide variety of products, by a variety of manufacturers my art was used on, home furnishings, textiles, decorative accessories, and stationary to name a few.  The products made by the manufacturers were sold in some of the stores you mentioned.  I would get royalties, that you share with the agent if you are working with one,  from the products that sold.   In the licensing world royalty percentages can be small, you have to have quite a few contracts and sell a large quantity for a substantial income.  It helps if you have that one image or style that really resonates with the marketplace.

"Joss Sticks" original watercolor by Kim Minichiello

You worked for Walt Disney Imagineering, what was that like?

It was great on so many levels.  First I met my husband there! :-)  I got hired during the design phase of Disneyland Paris for Discoveryland and Main Street, and got a chance to meet and work with some of the classic artists, designers, and authors that knew and worked with Walt Disney, Herb Ryman, John Hench, Bill Evans, Frank Armitage, and Marty Sklar. I had the opportunity to see a lot of Disney art.  Dorothea Redmond’s, watercolors for one, are amazing.  It was inspiring and energizing to be surrounded by so many creative and talented artists and designers.   We had the opportunity to take art classes to keep up painting and drawing skills, attend guest lectures and events at the studio. I loved Disney before working there, but I came to appreciate Disney history and the legacy of Walt Disney even more.  I learned to incorporate storytelling into design, paying close attention to and incorporating elements down to the tiniest details. Mainly, I did interiors for shops, restaurants and attractions. During some projects, I had the chance to design custom furniture, hardware, fabrics, drapery trimmings, and wallpapers for various projects.  Working on Animal Kingdom, the design team would go on research trips to Asia, to immerse ourselves in the culture, and photo document countries we visited to help us to re-create similar environments in the park.  We would also seek out and work with local artisans and craftsmen to create elements that would eventually be part of the overall design. One highlight for me, was working with Disney Artist, Frank Armitage, who was a background artist for Jungle Book and Sleeping Beauty, designing murals for Pizzafari in Animal Kingdom. Overall, it was hard work, with many long hours, but a once in a lifetime experience.

How did you get involved with creating textiles?

In college one day I passed a room with floor looms and padded tables for silk screen printing and was curious, so I took the class.  I enjoyed the silk screening process and while I worked in Indianapolis, I approached an Indiana artist, Marilyn Price, who did textile work creating large wall hangings incorporating silk screen printing, hand painting and quilting.  I became her apprentice for a number of years, and we are still friends today!

"Lotus Nocturne" original watercolor by Kim Minichiello

SPEED ROUND!

Chocolate or vanilla?

I assume you are talking about ice cream, so it would be both swirled together. But, I love pure dark chocolate!

Your dream vacation spot?

The next great place I haven’t been, or someplace tropical, or somewhere beautiful or culturally stupendous to inspire me to paint!

Book or movie?

I love both!  But, I would have to choose books, because they don’t make movies of art books!  With books, I can seek out and read whatever I’m interested in!

Favorite author?

This is hard... I read a lot, more non fiction than fiction.  My favorites are history relating to various cultures, travel, historical fiction, books about artists, and all my art mags!

Favorite movie?

I love old classics, but two of my favorites that are more current are Lost in Translation, and Midnight in Paris.  I also love period dramas, like the Merchant Ivory films, and documentaries on art, artists and designers.   I also really enjoy Wes Anderson’s movies, my two favorites are Moonrise Kingdom, and Fantastic Mr. Fox, and of course, Disney and Pixar movies.  

Romance or comedy?

A period drama with both romance and comedy.

Favorite dessert?

Rhubarb Pie

Night owl or morning person?

For productivity, late morning.  My favorite time of day is early evening, dusk, or in France aperitif hour!

Such a fascinating interview.  Thank you so much Kim:))

Have a great weekend everyone!

Carrie

Copyrights, everything an artist needs to know

"Hopper" watercolor by Carrie Waller

Today's guest blogger Kim Minichiello is discussing copyright issues. Last week she covered trademarks and it is important to know the difference.  There is a lot of great information in this post that every artist should read about.  I've sprinkled a couple of my paintings in that I questioned about copyright issues.

Without further ado here is Kim,

When Carrie and I were conversing on Facebook about the trademark issue with the Ball Jars in her painting, she posed a question that related more to copyright than trademark, so I will be addressing it in this article.  First, let’s start with the basics.

What is a copyright?

A copyright is a form of protection to authors of “original works or authorship” including artistic, dramatic, musical, literary, architectural and certain other types of intellectual works.  Any of the above types of original works would be the “intellectual property” of the artist, author, etc.  

The work must be original and be in fixed tangible form of expression.  Among those things which are copyrightable are: pictorial, graphic and sculptural works, dramatic works, pantomime and choreographed works, motion pictures and audiovisual works, sound recordings, computer programs, and architectural works.  

Items that are generally not copyrightable include works that have not been fixed in a tangible form of expression, for example; names, short phrases and slogans, variations of typographic ornamentation, lettering, coloring, or, lists of ingredients.  Some of these, as discussed in my previous article, can be protected by trademark.

How is copyright protection obtained?

A tangible original work is copyrighted the moment it is created. In other words, it is protected the moment it is expressed in a fixed format.  The fixation doesn’t have to be directly perceptible as long as it may be communicated with the aid of a machine or device, for example music or movies.  Publication is no longer required for statutory copyright protection, however in order to enforce a copyright, the work must be registered in the U.S. Copyright Office.  What this means is, if you wanted to file a copyright infringement suit against someone who violated your copyright, you would have to have registered it with the U.S. Copyright Office.  Essentially, you are always protected, however you must register to pursue any legal course of action if your copyright was violated.

This can get quite expensive to register your work.  Here is the link that breaks down the fees for registration: http://www.copyright.gov/docs/fees.html. (Some fees are lower if you do it on line.)  However, I have heard of some artists grouping their works into collections and protecting many images for the same fee.  For example, if you had created a book in Blurb of your work you could register the book and I believe all the images in the book would be protected.  This way you are only paying one fee for several images.

Notice of Copyright, is my work still copyrighted if I don’t indicate it is with the word copyright before my name or the symbol, ©?  

Yes, there was a law passed in the United States that no longer requires you to add a copyright notice for works first published on or after March 1, 1989. Your work is still copyrighted, however, it is highly advisable to indicate a notice on your work, especially in this digital age.  Works published before March of 1989 still require a notice to be protected. 

What is a copyright notice?

A copyright notice generally consists of three elements, all of the elements must appear together:

1. The symbol, © (the letter “C” in a circle), and/or the word “Copyright,” or the   abbreviation, “Copr.” 
2. The date of first publication
3. The name of the owner of the copyright in the work. 

The year may be omitted from certain works.  I feel many artists don’t like to include the year in their notice one reason being, if you have a body of work for sale, it easily identifies which pieces are older and may not be as appealing to buyers.  Therefore, you could probably omit the year in your notice.  If you were to register the work, the year would be in the registration.

"The Night Before Christmas" watercolor by Carrie Waller

Where should I put my notice on my work?

This is personal preference.  Some put it directly as part of their signature on the front of the work.  If you don’t do this then you must put it on the reverse side for 2D work or on the bottom for 3D work.  I have also read or heard a lot of back and forth discussions on whether you should include what is called a watermark copyright notice on any images you would post on line and put on your web site, blog, Facebook, Pinterest, etc., again, this is personal preference.  Same artists feel it detracts from the work and don’t use it.  Some want it to be very obvious by placing it in the middle of the image, or across the whole image, and some use a discreet mark in a corner or bottom of the image.

Ownership of Copyright

The copyright of a work immediately becomes the property of the artist who created it.  You may allow others to use your work with your permission in writing, or through a licensing agreement, or if you choose to, you can transfer your copyright but this must be done in writing.  If you do commissions, technically this could be considered a “work for hire,” which means the person is hiring you to do the work, and it is considered the employer, not the employee who would own the copyright.   Therefore, it would be a good idea to stipulate in your written agreement that you still own the copyright to a commissioned work.   You may be okay, however, giving the copyright to the person who commissioned you to do a painting, or maybe adding an extra amount to the price of the work to cover what you feel your copyright is worth could be a solution, if the person commissioning the painting would like to own the copyright.  

It also may not be clear to collectors who purchase your work that they own the original artwork but you still own the image, and have the right to use that image if you wanted to sell prints of it or use if for licensing.  

Many people don’t understand this and feel that once they own your artwork they can use it for other purposes other than it hanging on their wall and this is not the case.  For example, say someone buys a floral painting from you and they think it would be a perfect image to use on their daughter’s wedding invitations and thank you cards.  They do not have the right to do this without your permission and if they did it would be an infringement of your copyright.  However, you could work out an agreement where they could pay you a fee to use your image for that purpose.  This is essentially what licensing is all about, but that is a whole other topic!  

How long does a copyright on a work last?

For works by individual authors or artists, the term of copyright is the life of the creator, plus 50 years after his or her death.  The term for copyright for works for hire is 75 years from the first publication, or 100 years from creation whichever is longer.

So you may be wondering, if I can’t bring legal action against anyone unless I register the mark why go to all the trouble to indicate the notice on my work or register it with the U.S. Copyright office?

By putting the mark on your work you are making it clear to anyone that sees it that you are aware of, an own the copyright to your work.  If there was ever a question that some one violated your copyright, they couldn’t pose a defense of innocent infringement.  Your mark is clearly there.  It is sad but registration is not a condition of copyright protection, but it does have some benefits and one can register anytime within the life of the copyright.  The benefits are:

Establishes a public record of your copyright claim.

It is necessary for any infringement suits.

If made before or within 5 years of publication it establishes a presumption in court as to the validity of the copyright.  

If made within 3 months after publication and prior to infringement, statutory damages and attorney fees are available to the copyright owner in court actions.  Otherwise the copyright owner may try for only actual damages and profits.  

I know this article is getting long, but I feel this is an important topic and I wanted to be sure to address Carrie’s question which was, “What about if you use another person’s art as part of your composition, for example, a still life with a postcard of another artists work or a book that has illustrations incorporated into the piece.”  This question touches on the subject of fair use. Fair use is a limitation in copyright law that allows someone to use a copyrighted work for certain purposes, such as criticism or parody, comment, news reporting, teaching, scholarship and research.  There are also 4 factors considered to determine if a particular use is fair.  They are:

1. The purpose for the use, is it intended for commercial or educational purposes.
2. The nature of the copyrighted work.
3. The amount of the copyrighted work used for your purpose related to the original copyrighted work as a whole.
4. The effect of its use upon the potential market for or value of the copyrighted work.

There is a lot to think about and consider here.  The distinction between fair use and infringement is not clearly defined and is more than likely determined on a case-by-case basis.  

Carrie could use another person’s art, as part of her composition be it a post card or a book that has an illustration as part of her piece and claim fair use, but there are things to consider relating to the 4 points above.  

1. If Carrie would be creating her work to sell then yes, it would be for commercial purposes.  In the case of the book, the purpose of her using the book in her work is different than the purpose of the book itself, same with the postcard.
2. The nature of the postcard or book is important, the year it was created is a factor, is it still a viable image in the current market place and is the original copyright owner still making money from it. If so then they wouldn’t want someone else using it and making a profit from it.  Is the copyright of the image still current or has it been renewed if necessary to still be protected?  If not, then it would be safer to use it. It may even be in the public domain, better yet.
3. How much of the original postcard or book/illustration would appear in Carrie’s piece?    The less that is used in relation to the whole, then it’s a better argument for fair use.

4. For a book, the copyright would be for the book, Carrie isn’t making money off the author’s story, she is just painting a picture of the book itself.  For the postcard, she isn’t reproducing the card, and selling it as a card, she is painting a picture of the card in her painting.  Therefore, in my opinion, she wouldn’t be harming the copyright owners market.  

There really isn’t a cut and dry answer to Carrie’s question.  But, if Carrie considers the factors for fair use and does some research regarding current status of ownership of the copyright and proves “due diligence” in seeking information about the original copyright owner then she would be safer.   Or she could even ask for permission from the original owner to use these items in her work.   

A recent case involving fair use is the case between artist Shepard Fairey and The Associated Press and his use of their picture of President Obama for the HOPE poster he created.  I’m not going into the specifics in this article but if you are interested, you can research this topic on the Internet.  It is interesting!

Another thing to keep in mind is that other countries don’t have the same copyright laws that we do in the United States.  I am basing information in this article on U.S. copyright information.

In summary, copyrights protect the work of artists, authors, and designers.  Most artists do not have the resources nor would want to spend the time to register all of their work, however your work is still protected. Taking someone to court for infringement of copyright can be a very expensive endeavor and may not be within your financial means.  However, you still have protection.   If you find that someone is violating your copyright you can ask that they cease and desist using your image for their purpose and inform them that you are the copyright owner.  The bottom line is, it isn’t fair for someone other than the original author or artist to make any monetary gain or claim authorship on work that isn’t theirs.  If you would like to use the works of others in your own work, claiming fair use, either ask permission if it’s relevant, or show due diligence in searching and coming to the conclusion that it’s okay. 

I want to thank Carrie for giving me the opportunity to post these articles and I hope that I have helped clear up any questions that fellow artists may have had regarding copyrights and trademarks.  If anyone has anything to add or would like to start a discussion, feel free to contact me or make a comment on my blog or Carrie’s. Happy painting!

Guest Blogger: Kim Minichiello- Trademarks, how do they affect artists

"Anticipation" original watercolor by Carrie Waller

Today I have a guest blogger Kim Minichiello.  Kim came to my rescue and explained trademark issues to me after I had a situation occur with a local organization.  I found the information to be so important that I asked her to do a series of blog posts about trademarks and copyrights.  

To see Kim's work visit her blog and website

Recently Carrie had a situation with an organization not accepting a painting of hers into their show because the subject matter was Ball canning jars, and they were concerned about an infringement of trademark.  I can fully understand an art organization, and we as artists, wanting to protect our rights be it with trademarks or copyrights. The decision not to accept Carrie’s painting was based on having incorrect knowledge of trademark infringement.  I posted a comment on Carrie’s blog and we have been conversing about this issue on Facebook in the past few days. Carrie asked me if I would do a guest post regarding trademark and copyright, and I told her I would be happy to!

I’m not an attorney, I’m an artist, and I don’t profess to be an expert on trademarks and copyrights, but I do have some experience and knowledge on the subject matter.  I co- founded a company a few years ago creating digital art for the art licensing market.  Some of the designs that I created were to be mass-produced, utilizing vintage images so, I wanted to be sure that by using them I wouldn’t be infringing on anyone’s trademark or copyright.  At that time, I had an Intellectual Property Attorney, and the information I will be passing on is from my own research that was validated by my attorney and information she passed on to me.  There is also information on the US Government’s Trademark and Patent web site. http://www.uspto.gov and the United States Copyright Office web site, http://www.copyright.gov.

What is a trademark?

A “trademark” is any word, name, or symbol (logo), used by a manufacturer or merchant to identify goods or services, to distinguish them form those of others, and indicate their source.  Trademarks include the “brand” names of the goods, for example, BallTM canning jars, CokeTM and AppleTM.  The reason a company would want to trademark their name is to distinguish their goods and services from others.  The value of the trademark depends on the degree of recognition and goodwill associated with the mark by the buying public.  You would want your customers to recognize your name and mark to identify with what you sell, or a service you provide, as opposed to the goods and services of others, your competitors. 

Trademark law is the branch of law of unfair competition.  It would be unfair for someone else to pass off the same goods or services your company provides, in which you have spent time and money building up your brand to be recognized by the general public.  If a competitor that provides the same goods or service you do is using a similar name or logo, or even if the name sounds the same, there would be confusion between the two brands.  An example of this would be when the Beatles had a problem with Apple (computers) using the Apple name and logo to sell music.  The Beatles had previously trademarked Apple Corp. Ltd. and Apple Records and used an apple as a logo to sell music.  Therefore, they were claiming that Apple had infringed on their mark by using the name “Apple” and using an image of an apple to sell the same goods, music. (I’m happy they worked out an agreement, this was the reason the Beatles’ music wasn’t available on iTunes for a while.)

If a company doesn’t register their mark with the United States Government Patent and Trademark Office your mark can only be protected in the particular geographic region in which you do business, and you would have the burden of proving the extent of that area.  A mark with Federal Registration would extend your area of coverage to the whole country.  If you were to do business countrywide and want to establish your brand to sell certain goods, then it would be wise to Federally Register your mark.   Incidentally, when you see a “TM” next to a name or logo, the company is indicating that that name is trademarked, whether it’s registered with the United States Patent and Trademark Office or not.    If they follow through and Federally Register the mark, they can then use the “R” with the circle, ®, after the company name or logo.

How do trademarks affect me as an artist?  

Most artists use their names as their brand or logo.  Should an artist trademark their name?  This really isn’t necessary, unless you plan on being the next Andy Warhol.  If you are then it may be worth your time. (There are nine current trademark registrations for him for a wide variety of products.)  Also, if you were to pursue many licensing opportunities to have your art appear on a wide variety of products, like artists Mary Engelbreit, Laurel Burch, or Thomas Kinkade, then yes you should register your name.

Where it affected Carrie is when the organization she submitted her work to, to be juried in their show, thought they might be infringing on the Ball company’s trademark by displaying the work, or that Carrie had infringed on the mark by using the Ball jars in her artwork.  Neither case is an infringement of the mark.  Carrie would only be infringing on the Ball’s trademark, if she were to produce canning jars and use the same or very similar logo on the same or similar product as they manufacture.  The Ball trademark in Carrie’s piece is on the jar in her art.  There would be no confusion within the general public that Carrie is selling Ball jars.  She is selling her art with images of Ball Jars.  If the Ball Jar company wanted to use Carrie’s art to help sell their product, then they could license her image to do so, but that’s a whole other topic!

As an artist using a product like the Ball jar in your work, or in Chris Beck’s art, Peeps candy, they are using what is called “fair use” which allows an artist to use a trademarked company’s product in your own art which you can sell. Andy Warhol didn’t violate the Campbell Soup trademark or the Brillo Pad mark in his work either.  This isn’t an issue because Campbell makes and sells food, and Brillo makes soap pads, not original art or art prints.  When a company applies for a trademark they have to list the goods and or services they will be providing with that mark. The Ball Company does not list art or art prints in their goods and services with their registered mark. Therefore, there is no confusion amongst consumers and no infringement.

There is a situation where this could get a little gray.  Say the Ball company listed “mugs” as part of their goods and services registered under their mark, and Carrie were to mass produce and sell mugs with her image of the Ball jars on the mug.  The Ball Company at that point may have an issue with that, but it is still unlikely, there still would be no confusion between Carrie’s brand and what she sells and the Ball Company’s brand and what they sell.  Carrie would have to make and sell a lot of mugs and be making a substantial amount of money for it to be an issue.  If it did become an issue with Ball then they would simply ask Carrie to “cease and desist” selling mugs. 

The bottom line is Carrie is not infringing on Ball’s mark by painting their jars, and the art association would not be infringing on their trademark by accepting and displaying her work in their show. 

Between trademarks and copyrights, it is a copyright that affects artists more.  The next article I will do for Carrie will cover copyright. Stay tuned!