Preserving your brand online

feature

Because I have published several career guides for artists, periodically I Google my own name to see how easily (or not) I might be found by someone searching online for one or more of the books. Daniel Grant is not all that uncommon a name, and among those similarly named are a painter (www.dannygrantfineart.com) and a photographer (www.danielgrantphotography.com). There are many others as well. I once was confused for the photographer by someone who wanted to hire me. A trivial problem for me, but it may not be for artists who look to make a name for themselves, what is called branding.

Nine years ago, identical names led to a lawsuit. Keith Urban, the well-known country-rock singer recently brought a lawsuit against a Wayne, New Jersey painter with the same name for creating a KeithUrban.com Web site that displays his artwork but was alleged to intentionally confuse browsers about who actually painted them. The singer Keith Urban, who has his own Web site (KeithUrban.net), filed his suit in Tennessee, where he resides, accusing the painter of federal trademark infringement, dilution of a federally registered trademark, federal unfair competition and violation of the anti-cybersquatting consumer protection act and the Tennessee consumer protection act.

It is quite possible that the painter Keith Urban was trying to profit from the more famous namesake. On the Web site’s home page, the painter announces in large letters, “To Those Who Don’t Know, Oil Painting Is One of My Hobbies,” which suggests that this Keith Urban has some other gig, like country-rock music.

The lawsuit went nowhere, but it might open up an area of concern to fine artists who worry that others have their same name or that the titles they give to their artworks may have been used by someone else. In general, no one can be forced to change his or her name because someone else has trademarked it. Trademarks are distinctive symbols, pictures or words that sellers use to distinguish and identify the origin of their products. Trademarks that have come to be identified by consumers with specific products or services are said to have acquired a “secondary meaning.”

“Paul McCartney couldn’t stop people who are named Paul McCartney and sing from using his name,” said intellectual property lawyer James Silverberg. However, “you couldn’t perform under the name The Beatles, because people will assume that they will see John, Paul, George and Ringo. The name The Beatles is shorthand for the services of this group.”

Similarly, the Ford Motor Company could not legally require someone to change his name from Henry Ford, but, according to Washington, D.C. lawyer Joshua Kaufman, “if my name is Henry Ford, I couldn’t come out with a line of cars and call them Fords, because that name has acquired a secondary meaning.”

On the other hand, someone who is not named Paul McCartney but begins performing under that name could be sued under trademark law; even going to court to legally change one’s name may not eliminate the threat of legal action, as the original Paul McCartney would argue that the only reason a singer would take on that name and play guitar is to confuse people as to who is actually performing, Kaufman said.

It is no less illegal to use some famous person’s name as the domain name of a Web site if it is at all unclear if there is a relationship between the site and the famous individual. This type of use is called cybersquatting, which, as defined by a 1999 federal statute, involves registering or using a domain name with the bad-faith intent to profit from a trademark belonging to someone else. The cybersquatter usually then offers to sell the domain at an inflated price to the person or company who owns the trademark. In 2003, British Op Art painter Bridget Riley won a “cybersquatting” arbitration decision against American John Barry who had set up a bridgetriley.com Web site as a means of directly connecting visitors to an anti-abortion Web site, abortionismurder.com, although the artist did have to pay $999 for the rights to the domain name.

Using the same title for an artwork as some other artist tends to be more clear-cut. “Titles generally aren’t protectable,” Kaufman said, but generally doesn’t mean absolutely. Trademarks are used to distinguish one product from another. Very well-known artworks may have acquired a secondary meaning, such as Andrew Wyeth’s “Christina’s World,” although “if you painted a picture of a girl in a field whose name is actually Christina, I’m not sure that Andrew Wyeth could stop you from using that title,” Silverberg noted. On a practical level, however, so many artists do use the same titles (“Untitled,” “Still Life with…,” “Descent from the Cross”) that a specific trademark would not be defensible.

Things may seem more clear-cut in the performing arts, where Actors Equity, the American Federation of Television and Radio Artists and the Screen Actors Guild all require new members with names identical to current or past members to alter their professional names, such as adding a middle initial (Michael J. Fox, for instance) or making a larger change. African-American singer-songwriter Michael Gregory Jackson first used all three names on his early recordings before dropping Jackson on his own and performing professionally as Michael Gregory. In the fine art realm, painter David X. Levine’s middle initial might help eliminate confusion that he isn’t the famed caricaturist and watercolorist.

Similar names and titles have resulted in legal disputes in other realms, such as between The Beatles’ Apple Records (formed in 1968) and Steve Jobs’ Apple Computers (formed in 1976), resulting in the payment of a $25 million settlement by the computer maker. The Motion Picture Association of America has a Title Registration Bureau, which arbitrates disputes between filmmakers over titles that seem too close, ruling in 1992 that film director Ridley Scott needed to change the title of his film “Christopher Columbus” after a Dutch company had already registered its own “Christopher Columbus – The Movie.” Outside of the Motion Picture Association of America, a New York State District Court ruled in 1999 against Leisure Time Productions’ “Return from the River Kwai” because of its similarity to Tri-Star Pictures’ classic “Bridge on the River Kwai,” awarding Tri-Star $1 million in fees.

Closer to the art world, New York City art dealer David Findlay and owner of Findlay Galleries sued his younger brother Wally Findlay after Wally opened an art gallery two doors away from David’s called Wally Findlay Galleries. A court of appeals ruled in 1966 that even though there is in trademark law history a “sacred right” to use one’s own name, “Wally’s conduct constituted unfair competition and an unfair trade practice, and it is most inequitable to permit Wally to profit from his brother’s many years of effort in promoting the name of ‘Findlay’ on 57th Street. Wally should use any name other than ‘Findlay’ in the operation of his business next door to his brother.”

The problem of artists having the same names is that branding becomes more difficult. An image forms in our minds when we hear the statement “That’s a Warhol” or “That’s a Rauschenberg,” but if the art market has more than one Andy Warhol or Robert Rauschenberg, we become less confident and worry about making a mistake. A willing buyer may become less willing. When someone coincidentally has the same name and when that person is adopting the name of a more famous person in order to sow confusion and steal some business are questions that may require the services of a lawyer. Certainly, identical names lead to confusion that may be amusing (“Nope. Not that John McEnroe,” proclaims the home page for the Denver sculptor, distinguishing him from the former tennis player) or problematic (Scottish painter Peter Doig is currently being sued by the buyer of a painting by a Canadian artist named Peter Doige who wants Doig to admit the picture he bought years before is by him). One can only hope that no mass murderer with the same name gains notoriety at the same time you are developing your career. The law only permits Person One to stop Person Two with an identical name from intentionally infringing on his or her brand. As for the Denver sculptor, having the same name as the tennis star has had an upside: “People see the name and take a second look at my work,” he said. “That’s better than their not taking a second look.”

By Daniel Grant

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