Château Mouton Rothschild exemplifies the trend of label “as” art, perhaps even to the point of rendering itself a unique example of label = art through the use of the most “celebrated artists of their day” on its wine labels. Many companies traditionally understand that trademark law affords them an exceptional tool in protecting their brand, its use is circumscribed by its own purpose, the protection of the right to use a mark to identify the source of goods and services. This level of protection is a great form for words, basic shapes, and even tag lines or phrases. But in the ever developing world of product design and promotion, it’s surprising that companies often overlook an added protection that copyright can afford them for the amalgamations of graphics, pictures, slogans, even artwork combined with logos and company names that amount to label design or the advertisements (think posters and commercials) they create. Even the short and inventive descriptions companies create to tell consumers about their products can amount to original works of art protected by copyright. For example inventive copy about a beer or liquor or even the description on a shampoo bottle:
This language is more than simply a list of ingredients, directions, or a catchy phrase. No one can seriously dispute that if plaintiff were to discover that a competitor’s package utilized the exact language as above with the exception of the product’s name, plaintiff would be entitled to protection. While this text tries the limits of the modicum of creativity necessary for a work to be copyrightable, I find that taken as a whole it comes within the purview of the Copyright Act.
In registering your work the copyright office may need some clarification on the elements of a whole label that you are seeking protection for, i.e. the original artwork, text or font and text, and ask that you disclaim the non-original elements. This still affords the product label or advertising a copyright protection that can be used in defending the use of your product label design or advertising or the copyrighted elements of it, against unauthorized use by competitors or others. Another famous example of product label and poster design as original works is the art created by Henri de Toulouse-Lautrec for different venues and products that have now become standard fare for display in homes across the world.
The converse, and equally important part, of this is that in using art or another’s product in any fashion in your own labels or advertising, you’ll want to ensure adequate authorization for the use.
These issues have recently come to the forefront in two separate instances that serve as a reminder of the importance of copyright protection and copyright clearance.
On the converse – flipside of using someone else’s art: McDonald’s is the subject of a lawsuit by the estate of the graffiti artist Dashiell Snow for the allegedly improper use of Snow’s art as décor in McDonald’s restaurants. You can read the complaint filed by the estate here. Claiming registration of Snow’s works, the complaint asserts that McDonald’s use is infringement and, in addition to other claims, demands statutory damages for using Snow’s artwork.
On the protection side – asserting your copyright claims against someone else’s use: Granted, this one didn’t work out so well for the copyright claimant, but Steak and Shake recently defeated a lawsuit brought by Culver’s where Culver’s asserted that a commercial Steak and Shake ran infringed on Culver’s copyright by reproducing elements of a similar Culver’s commercial. (Both commercials can be found in the link above through the Chicago Tribune piece on the case.) You can read a copy of the Court’s opinion finding that there wasn’t any infringement here.
These examples prove the point that copyright should not be overlooked as a sword or shield in protecting your brand. If you take the time and effort to produce noteworthy copy or have original artwork for your labels, it is definitely worth the effort to protect those elements.
Tip: Copyrighting your label or promotional posters and commercials can afford you another avenue of redress where another’s use of your product on their website or in their advertising might be allowed under other intellectual property protections.