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Concerning claims of Trademark to the name and Signature of Gil Elvgren.
(TO THOSE WHO HAVE BEEN APPROACHED AND/OR HARRASSED WITH CLAIMS AND DEMANDS FOR MONEY AND/OR CREDIT LINES BY AN INDIVIDUAL CLAIMING TO HAVE TRADEMARKED THE SIGNATURE OF THE GREAT PIN-UP ARTIST GIL ELVGREN)
THE FOLLOWING SHOULD AND WILL BE OF ASSISSTANCE TO YOU AND/OR YOUR LEGAL COUNSEL.
This is a legal position concerning claimed trademark rights regarding artworks and signatures by Gillette Elvgren. This information is provided for use by anyone who needs it.
This letter is to address trademark issues regarding reprinting, publishing, and/or selling of various artworks or reproductions created by the well-known and highly celebrated advertising and " pin-up" artist Gillette Elvgren. In particular, this is both to respond to to questions concerning the legal ramifications of the alleged trademark "rights". In short, and as one will see in greater detail below, An individual has overstated any trademark rights that he may have in the Elvgren signatures, and therefore, the alleged trademark rights in these signatures should be of little or no consequence to most.
You may have been contacted by a man who is the proprietor of an art gallery in California. He may have informed you-- and evidently other pin-up art collectors and dealers-- that he is ( to use his own words) the " Registered Trademark holder of Elvgren for the following description: ' Artwork and paintings, namely originals and reproductions of paintings, printed and painted reproductions, illustrations, prints, lithographs, gift cards, posters, and post, trading cards with artwork thereon, portfolios, poster books, calendars. He is insisting that anyone selling reproductions of original Elvgren artwork must either -- (a) obtain from him some sort of advance authority to make and sell such reproductions; or (b) acknowledge his (or his company's) alleged trademark rights in the two stylized "Elvgren" signatures by way of a printed statement accompanying the reproduction. As will be explained in greater detail below, this person lacks any legal basis to require anyone to take either such action.
Here are a few preliminary observations, which are based on investigation into this matter: He appears to have obtained registered trademarks in the two stylized "Elgren" signatures which most commonly appear on Elvgren pin-up art - (A) the scripted or cursive-style "Elvgren" typically associated with Elvgren's Brown & Bigelow images (U.S. Patent and Trademark Office - Red. No. 2,097,829); and (B) the printed or "block-lettered" ELVGREN signature which was affixed to earlier Elvgren works (U.S. Patens and Trademark Office- Reg. No. 2,095,296).
Evidently, he did not retain an attorney to prepare his trademark applications, and he apparently did not consult with an attorney at any point during the course of preparing the applications. Although he has directed others to contact an attorney in Monterey, this attorney apparently did not advise him concerning his trademark applications.
The claimant has referred persons to someone named "Greg" at the Federal Bureau of Investigation offices in Monterey, CA, or has suggested that this " Greg" would investigate or take some other government action to prevent the abuse or violation of the trademarks that are claimed. The action in this regard are obvious and baseless threats, which are designed to intimidate others. In fact, the FBI is not in a position to take that sort of action and no one should be intimidated by his comments or statements on this topic. This invocation of the FBI may actually be a criminal offense.
He claims to have obtained from Brown & Bigelow. ("B&B") certain "exclusive" rights to reproduce copyrighted Elvgen images. He has indeed obtained certain exclusive artwork reproduction rights. However, and despite requests for information from which one might be able to ascertain the extent of his alleged contract rights, he has thus far failed to provide a copy of any such agreement or agreements when requested. Since he seems exceedingly concerned about his exclusive B&B rights, one would expect him to make clear what his rights are. Suprisingly, he never does this. (Thus, if one choses to to reproduce a B&B copyrighted image, one should first consult with B&B. The more B&B hear from threatened and harrassed parties, the stronger their remedial action which is in progress, will be.
Legal research on the issue of these trademark claims and interviews with representatives of the United States Patent and Trademark Office have been undertaken. On the basis of this research, investigation, and interviews, it is concluded that his is claiming trademark rights which, if they are valid for anything, do not entitle him to restrict anyone from reproducing or selling Gillette Elvgren's artwork, further, provided one's efforts are to reproduce or sell Elvgren's work as it originally appeared, one is under no legal obligation to honor his request that one identify him or his company as the owner of any trademark in Elvgren's signature.
These are three basic categories of Gillette Elvgren artwork available today-
1. Those images to which no one possesses a copyright (and are therefore in the "public domain");
2. Those images which are protected by copyright (in favor of B&B, for example) and cannot be reproduced without appropriate permission and
3. Original paintings created by Gillette Elvgren, (which are frequently owned by individual collectors, museums, and corportations). Other than the caveats outlined immediately below, with respect to all three categories of Elvgren images, he cannot, by virtue of his registered trademarks, restrict or prohibit one from reproducing Gillette Elvgren's artwork, even though the image in question contains Elvgren's signature:
Where one has determined that an Elvgren image is in the public domain, no authority of any sort is necessary to reproduce the image. Where Elvgren's signature appears as a portion of the original image, he has absolutely no basis for asserting a trademark infringement by virtue of the reproduction.
Where an Elvgren image is protected by copyright, one much obtain the permission of the copyright holder (B&B in many cases) before it can be legally reproduced and distributed. One does not have to obtain permission of any sort from the claimant to reproduce or distribute the reproduction.
In every case where Elvgren affixed his signature to his work, the signature is an integral part of the painting or print to be reproduced. The signature does not need to be "edited out," and reproduction of a painting or print with original signature is not a violation of the claimant's trademark.
Thus, his trademark rights (if he has any vaid trademark rights), are very limited. Assuming he has an enforceable trademark right of any sort in the Elvgren signatures, his rights are much more circumscribed than he has led others to believe. No matter what he claims, he cannot block anyone from using an individual's last name (Elvgren, in this case) to describe the origin of a product (such as a painting created by Gillette Elvgren) that preceded his trademark. Specifically, he cannot prohibit people from using th name " Elvgren" in a descriptive fashion any more so than anyone can legally forbif others to describe a painting created by Pablo Picasso as " a Picasso" or " a Picasso masterpiece."
For example, if someone put together a print set entitled " Elvgren Girls," this by itself certainly would not infringe upon his trademark. If one advertised in a newsletter or magazine a " wonderful collection of Elvgren prints, " here too one has used the term merely to describe the prints as reproduction of Gillette Elvgren paintings, and his trademarks are not infringed. Finally, if one was to print and sell a book entitled " Elvgren's Models" the use of the term " Elvgren" is descriptive of the book's images, and it would NOT be be an infringement of his trademarks.
So what, if anything, does his trademark rights give him? If anything, he may be legally able to prohibit or restrict the use of the stylized Elvgren signature where it is not part of an original Elvgren painting or print. More specifically, it may be a violation of his trademarks to use either of the Elvgren signatures apart from the original or reproduction artwork, or to affix it to an object or print in some way other than in the manner in which the signature appeared in the original work. As an example, we would recommend against anyone producing or selling a re-print of Elvgren artwork whether for card sets, lithographs, calendars, etc. -- where the reprint(s) depict Elvgren's signature in any way that is different than the way the signature appears in the orig nal. It might be an infringement if one were to print the signature ELVGREN on a Tee shirt. I doubt anyone would in fact care to buy anything with just the name on it.
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