Trademarked Names in Painting Titles

Q. I understand that names of universities, sports teams and buildings such as museums and stadiums can be copyrighted. If I paint one of these places or structures, may I use the copyrighted name in the title of my painting without legal ramifications? What if a name or a logo appears on a building or a sign—may I paint that building or sign with the name or logo, just as I see it?

A. Names of universities, sports teams, buildings and the like are not copyrightable since the copyright law requires works to be substantial—that is, mere words and short phrases are not copyrightable. Names, however, may be protected as trademarks under the Lanham Act. A trademark is infringed by an unauthorized use of a name that sounds like, looks like or is confusingly similar to one which is protected. In other words, for there to be an infringement, there must be a “likelihood of confusion” by a reasonable consumer.
For this reason, if you desire to use the name of a school, sports team or building in a painting, the question you must ask yourself is whether a reasonable observer of your painting would believe that you are somehow affiliated with or the owner of the school, sports team or building. In the scenario you have posed, that conclusion is highly unlikely. Therefore, using the name or logo of a school, sports team or building in the title of your work or in the work itself would likely not be an infringement of the institution’s trademark. If you plan to sell posters or use the image in some other way where confusion may arise, you should discuss the particulars of your situation with an intellectual property lawyer.

Note: Copyright laws are subject to change. This article was originally published in the September 2008 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.

Leonard DuBoff
was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as
Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.

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