The Frida Kahlo barbie doll was the subject of a legal dispute amongst the artists' heirs.

    The art of the deal: why more artists are getting trademarks

    16 June 2020

    You may see Bob Timberlake, the 83 year-old artist in Lexington, North Carolina, only as a painter of mostly quaint, rural imagery, but he also is a brand. His name is trademarked, as is his signature and an image of a quill, to identify a variety of products that he has designed or with which he is associated.

    From bedroom furniture to wood stain, “there are close to a dozen trademarks,” said his son, Dan Timberlake, a lawyer and advisor to his father.

    In previous years, high-brow artists would have turned their noses up at such barefaced commercialism. But Bob Timberlake is far from an oddity in today’s art world. An artist’s “brand” is increasingly used to push useful products in a commercial context, such as Keith Haring’s radioactive babies on t-shirts, magnets, stationery and baseball caps or Donald Judd’s home furnishings.

    Other major artists, including Banksy, Jean-Michel Basquiat,  Dale Chihuly, Norman Rockwell and Andy Warhol, have also got in on the act. Even if, like Banksy, your work has a distinctly anti capitalist theme, trademarks are becoming the go-to tool for ensuring a longterm income from your art.

    For all his anti-capitalist themes, Bansky is one of the growing number of artists to take out a trademark for their name (Getty)

    Artists are more often associated with copyright than with trademarks. But in an age where images are not just instantly and endlessly copied but can also be turned into marketable products at the drop of a hat, maintaining commercial control of your work and where it is used has gained newfound importance.

    Increasingly artists apply for both. Certain works can be both copyrighted and trademarked where there is a distinct design element. A thumbnail self-portrait of Andy Warhol along with his signature has been copyrighted and trademarked, but certain written terms – Warhol Factory and Silver Factory, for instance – have only been trademarked.

    Indeed, the trademark is opening up new revenue streams for artists. New York painter Tom Christopher is licensing images to two companies, the first is a dress-making firm that will include his images (“Illusions by Tom Christopher” is the particular line) and the second is the Swiss watch company Ikepod that will use two images (one of the Chrysler Building and one other). Christopher, however, began his career as a commercial advertising artist before switching to fine art, so the side-hustle of a trademark was never too far from his consciousness.

    Licensing deals help artists, or the heirs of an artist, continue to earn money even as the number of saleable artworks in an estate diminish over time. There was some controversy a couple of years ago when heirs of Mexican artist Frida Kahlo disagreed over the creation of a Barbie doll with her likeness, but the legal dispute was less about the overall concept of product branding – a strange legacy for an artist who espoused Communist ideals – but in the specific use of her name and image. The artist died intestate, so who has the specific rights to use a trademark was not made clear.

    Artists are learning quickly that turning themselves into a brand is not without its risks. Bob Timberlake’s trademarks have been the subject of lawsuits when other manufacturers have sought to stop him from trademarking a name that is close to theirs. Timberlake Cabinetry, a division of American Woodmark Corporation, sought to prevent Bob Timberlake from registering his name in similar products that might compete in the market, and Timberland, a manufacturer of outdoor clothes, shoes and accessories, also tried to block the artist from registering his name even though the two companies did not compete. “They both lost,” Dan Timberland said, adding that the two lawsuits cost the artist between $250,000 and $300,000.

    It’s a costly business – but one that is increasingly de rigueur for the modern artist.