Artists as brand: legal protection of creative individuals’ names and works

Registering an artist’s name and pseudonym as a trademark

A surname or pseudonym can be registered as a trademark (TM). This is a common practice that allows the owner to control the use of the name for goods and services and to protect against unauthorized use. Before registering a name, it’s wise to check its availability, as others may have been using a similar brand for a long time, giving them legal rights. Additionally, some countries may require proof that the pseudonym is directly associated with the applicant and has been used in commercial activities.

Many well-known artists have registered their stage names as trademarks. For instance, artists like DZIDZIO, TINA КAROL, and Alan Badoev have done so. If someone else uses these pseudonyms in their business without permission, the trademark owners can take action, such as blocking advertisements on social media and marketplaces, filing claims against the infringers, or pursuing legal action in court.

International celebrities have also registered their names and pseudonyms as trademarks, including TAYLOR SWIFT, DAVID BECKHAM, and the KARDASHIAN family.

Protection of an artist’s works

An artist’s work is protected by copyright, which comes into effect as soon as the work is created. In most countries, copyright registration is not mandatory. However, in some countries, like Ukraine, it is possible to register copyright for a work and obtain a certificate that confirms the intellectual property authority recognizes the copyright for a specific individual. This certificate can serve as additional evidence in court disputes, as it indicates the registration date and the rights associated with a particular work.

Regardless of registration, copyright protection lasts for the lifetime of the author and extends for 70 years after their death.

In the United States, copyright registration has additional importance. For instance, the ability to receive compensation for damages depends on whether a work is registered. A person who has registered their copyright is eligible for statutory damages as stipulated by law, as well as attorney’s fees.

Without registration, the copyright owner can only claim compensation for actual damages. Furthermore, having a registered copyright can help demonstrate deliberate infringement of the artist’s rights by others, as this information is made public.

Ways to protect the artist’s name and works

If the author, or their heirs, did not secure the rights to their works during their lifetime, international foundations, museums, and organizations can serve as intermediaries. These institutions preserve artworks and regulate their usage.

However, the issue of rights protection by these institutions often leads to conflicts of interest. After 70 years from the author’s death, a work typically enters the public domain, allowing anyone to use it for their own purposes. As a result, these creative works may no longer need protection. Another conflict arises from the requirement to establish a connection between the institution and the author’s rights, specifically determining ownership of the rights to the works. While institutions often lack property rights to these works, they can still protect the author’s non-property rights, such as the right to reputation. This is crucial to ensure that the author’s reputation and dignity are not compromised, for instance, by alterations to the work, even when the rights to the work do not belong to the institution.

Typically, institutions own the physical manifestations of artworks, such as paintings and sculptures. However, this ownership does not extend to the copyright of those works. Copyright remains with the original creator unless specified otherwise in a contract. This situation can lead to conflicts regarding the use of artworks for reproduction, publication, or display. Moreover, the heirs of the original authors may also assert claims over the authors’ works, complicating rights protection for institutions. As successors can change over time, new owners may have varying perspectives on how the works should be used.

For instance, the Claude Monet Museum in Paris has been pursuing claims related to the use of Monet’s artworks. Although 70 years have passed since Monet’s death and his works have entered the public domain, the museum’s claims may hinge on other factors. These can include copyright in photographs or reproductions of the works that the museum may own, the museum’s brand if the use of the works is connected to its name, or special exhibitions.

How to balance the use of artists’ brands by others?

The use of a famous artist’s name significantly enhances the recognition of goods and services in the market, creating associations among consumers. For instance, the brand of Pablo Picasso is associated with art and luxury goods, the Elvis Presley trademark is utilized for various products related to his legacy, and the Ernest Hemingway trademark is registered for films and books. Registering these brands is a complex process that involves legal procedures, including obtaining permission from the heirs or the companies managing the artists’ legacies.

In today’s world, where branding and image play crucial roles, the issue of using an artist’s reputation and name for commercial purposes is particularly relevant. Although the rights to reputation and name may not be formally codified in law, their use still requires careful oversight.

It’s important to remember that utilizing an artist’s name should not damage their reputation. This is especially pertinent when registering trademarks or using a brand in contexts that might misrepresent the artist’s image or link them to industries unrelated to their work.

The reputation and names of artists, particularly those who are prominent cultural figures, are part of the public good. However, using these names for commercial purposes can result in the abuse and distortion of an artist’s legacy. In Ukraine, several trademarks have been registered that feature the names of famous individuals. For instance, the trademark ‘Bohdan Khmelnytsky’ is registered for alcoholic beverages (certificate № 199327 dated 12.05.2015), ‘Yaroslav the Wise’ is used for soft drinks, sweets, and non-medicinal perfumes and cosmetics (certificate № 282519 dated 25.09.2020), and ‘Anna Yaroslavna’ is registered for non-medicinal perfumes and cosmetics, confectionery, soft drinks, and alcoholic beverages (certificate № 282520 dated 25.09.2020).

To strike a balance between the public good and commercial use, it is essential to implement clear control mechanisms. This could include:

• Registration Rules: Establishing clear guidelines for registering the use of an artist’s name in specific areas of commerce.
• State Authority Oversight: Creating specialized bodies to monitor the use of an artist’s name.
• Exclusions from Protection: Making amendments to legislation that would limit the protection of an artist’s personal data in commercial contexts.

Conclusion

The legal protection of the names of famous artists and their works requires careful consideration. There is a risk that other entrepreneurs may exploit the reputation or association with these artists to gain recognition for their own goods and services in the market, potentially damaging the artist’s reputation. Therefore, the law provides tools to protect the interests of creative people: registration of a name and pseudonym as a trademark, registration of copyright, the possibility of protecting rights by cultural institutions or foundations, filing complaints and lawsuits against violators, etc. Establishing clear rules and control mechanisms will help strike a balance between public interests and commercial use while also preserving the legacy of prominent cultural figures.

Published by CASES

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