It’s so very empowering to know your mission. My mission is to help artists sell their art without selling out.

Meeting other people who share a similar mission or values ignites instant rapport.

I just experienced this when I had the pleasure of meeting Danielle Merrick, Executive Director of the Kansas City Volunteer Lawyers & Accountants for the Arts since 2010. 

Danielle also has a lot to say on the subject of making art and making money.

I recently partnered with the Kansas City Volunteer Lawyers & Accountants for the Arts to help deliver my “Free Live On-Line Business Training for Artists Program.”

So I asked her to share three lessons and one piece of parting advise that she gives most often to artists about making art and making money.

1. Avoid unwittingly entering into legal partnerships.

Many artists collaborate creatively.

If they create something of value they want naturally want to sell it.

Here’s the problem. You can unwittingly enter into an unclear legal partnership.

If you haven’t bothered to outline your agreement clearly in writing it sets you up for copyright, trademark, contract, and taxation issues.

2. Put all of your agreements in writing. Why?

• A. Putting things in writing is a good basic business practice.
• B. Property, that includes intellectual property, can only be legally transferred in writing.
• C. Last but not least, not having a written agreement can destroy relationships.

If you’re contract-signing phobic then you can use a simple email exchange to outline and confirm your agreements.

3. As soon as you create something you own it.

As a creator, author, painter, designer, musician, etc. You have common law rights to your intellectual property that you should control.

Those rights are referred to as “copyright.” No one has the right to “copy” anything that you have created without your written permission. That means no recording or photographing at all. Nada.

Ignorance is not a defense in the law.

That means that other creators also have the same rights. So collage artists beware.

Unless you have permission in writing to “copy” another creator’s creation, you’re breaking the law.

Great tip! Someone who is infringing on your copyright could be a potential business partner who you have not yet met.

• Step 1. When you discover someone using your creations, simply send them a standard licensing agreement and an invoice for their use.
• Step 2. If they don’t respond, send a cease and desist letter and state “I will take further legal action if necessary.”
• Step 3. Take legal action. Take them to small claims court or a file a federal claim. To file a federal claim your copyright must be registered with the Copyright Office.

Another reason to file your copyright is that it strengthens your defense and you have access to specific remedies, meaning that the damages that you can recover are much greater if you have filed your copyright.

You can register a series of work. Meaning that you can inventory everything that you have created and registered it all at once.

You do not need a copyright attorney to register your copyright.

The sooner your register your copyright the better. Get it done within 30 days of its first publication.

One piece of parting advise? “Recognize that your art is a business.”

That is why it is essential that you understand the legal and accounting aspects of your artistic enterprise.

Danielle Merrick has been the associate staff director of the Entrepreneurial Legal Services Clinic since 2004, and the Executive Director of the Kansas City Volunteer Lawyers & Accountants for the Arts since 2010. Professor Merrick earned her bachelor of social welfare from the University of Kansas and her J.D. and LL.M. in Taxation from UMKC.

Previously, she was employed with American Century Investments in the Tax Department and worked on individual and corporate tax forms. She was also involved with the launching of the state of Kansas’ 529 plan.

Has your copyright been infringed upon? What did you do? How did it work out?

Today my trademark certificate arrived from the U.S. Trademark Office for MAKING Art Making MONEY.

It’s my mission to help artists speak these words in the same dang sentence. So I took this prudent measure to protect my life mission.

You’ll notice the ® symbol next to The MAKING Art Making MONEY Semester logo. There used to be a ™ but now that the Trademark Office has acknowledged my ownership of this trademark I can use the ® symbol.

(MM) is an abbreviation for MAKING Art Making MONEY but it’s also a fitting acronym for a million. ?

This year I spoke to a woman who’s the head of a career office at one of the very top art and design schools in the U.S.

To protect the innocent, I’ll leave her name out of it. I offered to deliver free on-line business and marketing training to the alumni of this art school. 

Her response.

I know who you are and I absolutely believe in what you are doing and I would love to work with you. But if I use the words “making art and making money” in the same sentence with the administration of this art school, I could be fired. They’re communists.

So what did I do? I trademarked “making art making money!”

Ironically, these “communists” are charging art students well over $50,000 in tuition a year.

Over 5000 fine art majors will graduate from these top 42 art schools and in less than two years very few of them will be making art because they won’t be able to afford it.

The responses I received when I offered this free business and marketing training to the alumni of the top 42 art schools were:

• complete silence
• incredibly rude (Young lady you know who you are and I know that you’re reading this.)
• or something like “We’d love to work you after we’ve reviewed your entire curriculum.”

My response to the later.

Oh really? I’ll bet you’d like to see my entire curriculum but you see that’s my intellectual property an it belongs to me.

By the way, do you teach your art students to protect their intellectual property? Because I do.

Talk about giving an inch and taking a mile. Good God!

So what exactly is a trademark?

It’s any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.

Trademarks are powerful tools of commutation that represent your brand by conveying the unique attributes of your company, reputation, and products.

It doesn’t have to be a word. It can be a symbol that can be recognized by all languages. Think Apple or Nike.

Trademarks make it easy for your customers to recognize your business and they capture their attention.

They carry the identity of your enterprise.

Bottom line. Trademarks are valuable assets and that can appreciate in value over time.

The more your business reputation grows, the more valuable your brand will be.

Without the ability to protect our vital creative assets, we can’t conduct business.

So if someone comes along and pilfers your intellectual property or dents your brand’s reputation, there are tough legal and financial remedies available.

When your register your copyright or your trademark, you have the law on your side to claim damages.

Yesterday I had the pleasure of meeting with Alma Robinson, Executive Director of the California Lawyers for the Arts. 

Alma established  Alternative Dispute Resolution Services in 1980 and she shared a very helpful strategy for your creative enterprise, adding a mediation clause to your contracts.

In doing business consulting with artists, I find that their legal rights are often compromised because:

• Artists often do not completely understand their rights
• Artists are often reluctant to assert their rights
• Artists do not have proper written agreements to protect their rights or their business terms
• Artists often don’t have the funds to duke it out in court

And let’s face it; people will take advantage of those they perceive as weaker.

So what to do? 

First of all, be professional. 

Discuss your business terms clearly and then reiterate them in writing. 

Do not transact business without a written contract. If someone doesn’t want to sign a contract, then that is a BIG red flag.

You can simply spell out your business terms on your invoice or sales receipt.  It’s not complicated.  For example:

• Who owns the copyright? You do, unless you are transferring or licensing it. Spell this out.
• When is the payment due?
• What exact services or products are you providing in exchange for payment?
• When will you delivering the services or products?
• Is shipping included?
• What is the sales tax amount?
• What form of payment do you accept?
• Will you accept returns or exchanges?
• What is the date of the sale?

No one wants a fight. It can be costly, stressful, and strains relationships. Most importantly, it can damage reputations.

So take a great tip from the California Lawyers for the Arts.  Add a mediation clause to your written contracts. 

This post does NOT constitute legal advice.  That’s not my job. And you may not be from California. 

The point is, just make it clear to your customers that they must agree to mediation in the case of a dispute.  You will be:

• Setting a cooperative tone
• Protecting yourself
• Demonstrating your professionalism
• And saving yourself from legal fess and ligation that you may not be able to afford

Mediation

All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts.

Mediation/Arbitration

All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts.

If mediation is not successful in resolving all disputes arising out of this agreement, those unresolved disputes shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.

Arbitration

All disputes arising out of this agreement shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.

What is copyright exactly?  It is the legal right to copy, or reproduce, a “work of authorship”, such as: a painting, drawing, song, or photograph.  Who is the owner of the copyright?  The author is the owner, and no one else, unless the author transfers their rights.

Why is copyright so damn important? Because your copyright is an asset that can create significant income and it is part of your brand as an artist.

So listen up to Veronique Kherian, owner of Kherian Law, a copyright attorney based here in San Francisco who will be a panelist and the upcoming Artists Who THRIVE seminar….

Just about any business owner, no matter what industry she is in, has copyrightable material worth protecting.

However, how can you tell what is eligible for copyright protection? Here are some key pointers.

1. A copyrightable work must be “original,” and so the creator of the work must have created the work herself.  There must be some “minimal degree of creativity.” Works that are made of only preexisting works, such as a collage made from magazine clippings, might only be eligible for protection as a collection because the individual elements of that work might not have been created by the person claiming copyright ownership.
2. Copyrightable work must also be a “work of authorship.”  For a single person composing a song or writing a computer program, it is relatively easy to determine the author.  In the case of a collaborative effort, with multiple sources of contribution, such as a collective work, determining an author becomes trickier.  For instance, a work has joint authors when more than one person has contributed to a work, and they all intended that their individual contributions are interdependent or inseparable vis-à-vis the whole work.
3. Copyrightable work must be “fixed in any tangible medium of expression.”  There must be some fixed, physical embodiment of the work.  As a rough guideline: if you can make a copy of it, view it, hear it, or touch it, the work is fixed.

Copyright protection will not extend to ideas, or intangible concepts.  For instance, if someone discovers a better method of tying one’s shoes, the method will not be copyrightable.  The typed explanation of this method, however, may be. This is a topic that delves into the realm of patent law, and should be discussed with a patent attorney.  Blank forms are usually not copyrightable either.

This description of copyrightable work is brief, and the law of copyright is broad.  If you have any questions about protecting your intellectual property, please contact an attorney.

Veronique Kherian focuses her practice on trademark and copyright issues.

You may contact Ms. Kherian at:

• info [at] kherianlaw.com
• 415-766-9366. Kherian Law’s
• www.kherianlaw.com

When copyright infringement is disregarded can the value of your original art work protected?

Yesterday I received this friendly and generous email from “Cindy” in China.  Something just tells me that is not her given name.

Hand-Painted;Customized;Reasonable Price;Satisfaction Service;

Hi,

We are one of the leading OIL PAINTING REPRODUCTION wholesaler from China.We can offer you competitive price for oil painting reproduction based on fine quality.

Our oil painting reproduction on canvas includes Abstract oil paintings, Impressionism, Still life, Landscape, Animal, Mediterranean Sea, Flower etc.

Price is starting from US$3.00/Pic for decoration style with size 8″x12″. You are welcome to  offer us picture&size&quantity you required.(Starting from quantity 1 )We will quot. you as per your requirement.

Welcome visit at www.artsingallery.com  for more.

Thank you for any of your kind response.

Regards,

Cindy
Fine Art Gallery Shop
www.artsingallery.com

Mail: [email protected]
Xiamen.China

Before you have an experience of mild disgust, let’s learn from this.

Here’s the thing.  The concept of intellectual property simply does not hold the same weight in China.

If an idea can offer up value to the common good then they see no reason that it should not be shared.  So it’s not really stealing.

The problem with this mentality is that the profit incentive to innovate is quickly eroded.

But this is an economic force that us creative types have been, and will, continue to bump up against.

So clearly we creatives must bring more to the table than just a product called art.

The value proposition of a painting, a piece of jewelry, or a sculpture must contain deeper layers of value so that it cannot be easily copied.

Here are some things to consider.

• What is the story of your creations and how do you convey it?
• What is your personal relationship with collectors and how do you cultivate it?
• What elements of added value do you offer besides the finished works of art?
• Will you create bespoke works for collectors?
• What elements of creative value do you offer that cannot be copied?