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"Merchandizing properties" are not a recent arrival on the copyright and trademark scene. As early as the 1930s, the Walt Disney Company foresaw the substantial economic gains from licensing the images of its animated motion picture characters in a variety of consumer media, from publications, to soft toys, clothing and household items. Most recently, the World Intellectual Property Organization has prepared a substantial comparative law study of "Character Merchandising." The merchandizing of fine arts images, however, is a more recent development, and is one that has so far received less attention from academic commentators. This article offers some preliminary observations, based primarily on United States intellectual property law, concerning the copyright and trademark issues implicated in the merchandizing of images drawn from, or inspired by, works of leading modern artists, such as Picasso, Dali, Matisse and Mondrian.

Before undertaking the legal analysis, it is worth briefly surveying the commercial arena. U.S. newspaper and trade journal reports during the last year reveal the breadth and significance of art image merchandizing. For example, shops purveying reproductions of items in the collections of major U.S. art museums have proliferated in recent years. The Metropolitan Museum of Art in New York City, in addition to its homebased boutique and mail-order business, last year opened a third Metropolitan Museum of Art shop in the Los Angeles area, and one in Denver, Colorado. The Museum had already established "16 international Metropolitan Museum of Art shops in Japan, Taiwan, Hong Kong, Mexico and in various locations throughout Europe." The newly-opened MuseumStore at the new San Francisco Museum of Modern Art was expected to have $3.8 million in sales during its first year (the store was to open three months before the museum itself!); and the four Chicagoarea stores of the Art Institute of Chicago enjoy $10 million in sales annually. In 1993, retail sales in the U.S. and Canada from licensing by museums, contemporary artists and artists' estates totalled $4.74 billion.


Intellectual Property Law | Law