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Using a name on a piece of artwork

 
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Stypist
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PostPosted: Sat Mar 14, 2015 9:11 am    Post subject: Using a name on a piece of artwork Reply with quote

I have seen many examples of people selling products online that make reference to band names / song lyrics / film titles, famous quotes etc. and so have taken that this is the norm. I have presumed this is legal and just want clarification that my own designs are watertight.

I create re-imagined concert posters for classic gigs you may have been to, or wish you had been to, but in a minimalist graphic style. I look at them as commemorating a historical musical event - if you will. The artwork is my own, very occasionally taking original photographs as inspiration but creating something I hope is unique. I am using the name of the relevant group / performer on the top of the artwork, along with the date, venue etc.

If you google 'The Stereo Typist' you will see examples of my work.

I want my new enterprise to be as legitimate as possible. I am a big music fan, so the last thing I want do is upset one of my idols! Are the bands / performers in question (although many of them are now retired/disbanded/deceased) entitled to a royalty from my work? If so, how to I go about finding this out. I would be happy to withdraw any material that is dubious - I am a one-man-band and can do without a law-suit!

Any advice on what kind of titles / images to avoid or a way around any legal implication would be very greatly received.


Thanks
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AndyJ
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PostPosted: Sat Mar 14, 2015 1:22 pm    Post subject: Reply with quote

Hi Stypist,
The main problem as far as I can see is the use of other people's photographs in your work. The rights to these works will probably belong either to the original photographers or possibly the band/artist's management or record label. Rarely will the artist or band members themselves be the actual owners of rights in the images of them. There are a number of ways of avoiding infringement. First, of course, is to find the owner and ask for permission to use the image, but this will invariably incur the payment of a fee; secondly you can continue to use a photograph loosely as inspiration for your artwork, changing as many of the major details as far as you can so that your work and the original have very little in common, while still being able to recognise the celebrity concerned. And finally if you are willing to consider your works as pastiches or parodies, there is a specific exception to copyright law for this purpose. However, from the couple of examples of your work that I have seen, I'm not sure this exception is arguable in your case. Some recent decisions in the European Court of Justice have emphasised that a parody should include a humorous or mocking purpose, although to date the English and Welsh courts have not yet had to consider a case of parody/pastiche under the new regulations. If you go for option two, ie basing your work on an original photograph, I would advise not using particularly iconic works as your inspiration. This is because copyright infringement occurs when a substantial part of a work is copied. Substantial in this context refers to the essence or heart of the work, in other words the thing that makes it stand out from other works in the same genre. So where the original is well known or is particularly striking, the amount of it which is 'substantial' is likely to be greater than with a lesser known work.

A second issue may involve trade marks. Some bands may well have registered their names as trade marks and so using the name on a poster may be problematic if it suggests that the poster, albeit for a fictitious event, was somehow authorised by the band. To avoid this particular issue, I suggest you always check the name you wish to use with the IPO's register of trade marks, and if you find it has been registered, you can then decide whether to approach the registrant for permission to use it, or avoid the name all together.
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Stypist
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PostPosted: Sat Mar 14, 2015 4:39 pm    Post subject: Reply with quote

Thanks!
That has been really helpful and will definetly help me choose what pieces of artwork I choose to put online. Really appreciate your time on this matter.
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AndyJ
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PostPosted: Sat Mar 14, 2015 7:38 pm    Post subject: Reply with quote

Hi Stypist,
Earlier when I was writing my first reply, the IPO trade mark website was down for maintenance. I wanted to include an example of a band's name which was also a registered trade mark. Now that the search function is back up, here's a link to one of several registrations from the name Rolling Stones, this one being registered by Musidor BV, who are intellectual property agents for a number of bands, including the Rolling Stones.
It has also occurred to me that, in addition to the names of bands, you should also be careful about using logos associated with some bands as these too may be registered as trade marks as well as being protected by copyright as artistic works. The Rolling Stones lips and tongue from the Sticky Fingers album comes to mind.
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Stypist
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PostPosted: Sun Mar 15, 2015 3:41 pm    Post subject: Reply with quote

Thanks, yes - I will make sure I avoid any band logos - this doesn't fit in with the style of my work really.

After researching, several of the band names are trade-marked. I am most likely not going use any photographic images going forward to be on the safe side.

What are the realistic risks of using a trademarked name on a print - if I clearly state this is not an official piece of merchandising but my artistic impression of a historical gig that did take place.

I noticed for instance that in some cases their are catering / wine / cleaning businesses registered with the same names as bands (obviously inspired by them I'm guessing)etc - it is all a bit confusing.

I do wonder if I am so small fry that the likely hood of legalities is unlikely?
Are you asked by the performers representative to withdraw the image if they object, or can it get serious right away.
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AndyJ
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PostPosted: Sun Mar 15, 2015 5:02 pm    Post subject: Reply with quote

Hi stereo,
As you have noted, the same or similar words can be registered by two different companies for goods and services which are entirely unconnected, because the public is unlikely to be confused that there is a link between them.
However in your case, you wish to use the same mark (ie the name of the band) on goods which are similar to goods where the registered mark is/was used, namely posters. This falls foul of section 10(2) of the Trade Marks Act 1994 and a disclaimer would be insufficient to ward off a claim of infringement.
Anyone contemplating a claim would, as a first step, need to issue a letter outlining their complaint, and this would normally represent an opportunity to settle the matter without going to court. Realistically a trade mark owner will have two main considerations: whether your activities might seriously damage their trading position either in terms of lost revenue, or in damage to the reputation of the band, and secondly whether seeking financial compensation is worth it based on your likely profits. As you are probably aware, bands often make a large proportion of their earnings from ticket sales and the sale of merchandise, and so anything which could potentially undermine this revenue stream would be something the band's management might wish to tackle. It is therefore hard to say how each and every band might react to your enterprise. Some might undoubtedly see it as non threatening and take no action, while others may take a harder line. The problem is that generally speaking the only visibility we have of how prevalent this is, is when court proceedings are initiated, although occasionally disputes are aired in the press long before getting to court.
On that basis I would not advise the 'too small to be noticed' approach.
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Stypist
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PostPosted: Sun Mar 15, 2015 10:33 pm    Post subject: Reply with quote

Thanks again for your reply I really appreciate you taking the time to explain how it all works.
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