How Vendors Can Protect Their Creative Work: A Legal Perspective on Copyright Ownership

The interplay between creative vendors and photographers within the wedding and event industry often raises complex questions about intellectual property (IP) rights. For example, consider a high-end floral arbor designed by a florist that features prominently in a photographer's marketing images. This elaborate design can significantly enhance the photographer’s portfolio, attracting high-end clients and increasing their profits. But what rights does the florist have over their creation once it’s photographed and used for marketing? Legally speaking, is there any copyright ownership of that creative work?

Understanding Copyright Protection in the Context of Event Design

Copyright law is designed to protect "fixed mediums of creative authorship." For a work to be eligible for copyright protection, it must be original and fixed in a tangible form for more than a fleeting moment.

Originality Needed to Satisfy Copyright Protection

Let’s first discuss ‘originality’. This means the work must display a minimal amount of creativity and be independently created by the author. But, even if a vendor believes their design is original, it must also pass a complexity analysis to be eligible for copyright protection. The design must contain a sufficient level of creative authorship. Simple, routine, or functional designs might not qualify.

The Fixation Requirement Needed For Copyright Protection

While many event designs meet the originality criterion due to their unique and creative nature, they often fail the fixability requirement. The primary challenge with event art is that they are short-lived or temporary works. These pieces are often improvisational, constantly evolving, transient, or perishable, which means they do not meet the copyright law's requirement for being "fixed" in a tangible medium.. Unfortunately, event designs often fall short under the ‘fixability’ requirement. Floral arrangements, tablescapes, balloon arches, and other event decor are undeniably creative and valuable. However, they are typically considered temporary installations. Once the event ends, the tangible expression of these designs is dismantled, making them difficult to classify as "fixed" works eligible for copyright protection. There has to be a certain level of permanence in a creative work in order for it to receive copyright protection. Thus, while many event designs meet the originality criterion due to their unique and creative nature, they often fail the fixability requirement.

So, a floral arbor, no matter how intricate, is not fixed in a medium that can be preserved and is often considered a temporary artistic expression. However, certain aspects of event decor that are more enduring, such as unique patterns on signage or stationery, could potentially be copyrighted due to their fixed nature and higher complexity. But, again, this copyright protection is NOT automatic and the event vendor would need to file for a copyright registration with the U.S. Copyright Office in order to determine if that work was even copyrightable and registrable (or even go to court if the U.S. Copyright Office did not issue a registration to see if the Court would deem it original and fixed enough to be eligible for copyright protection).

Photographer's Image Rights and Licensing

Now, an issue that does come up is the professional photographers at weddings and events taking photos of event vendors’ creative works. When a photographer captures an image of an event design, they automatically own the copyright to that photograph. This is well-known under copyright case law that photographs and digital images garner immediate copyright protection by the photographer who fixes their work in a tangible medium (So, when the composition is transferred from the lens, the shutter is clicked, and then transferred onto the memory card or film, the work receives copyright protection. Not to mention that work then becomes more original and more fixed through post-processing and editing via the photographer’s style.)

But, is there any legal issue with the intellectual property of the vendors’ works within those images, such as the floral arbor or any other design? This is the “copyright” within a “copyright” argument for vendors. Event vendors may believe that they do have some intellectual property rights to their works that are being captured by photographers at events. Their catering menus, floral walls, tablescapes, balloon arches, and the like, are certainly creative and valuable. But, as we explored above, that does not make the works copyrightable under the law.

Protecting Your Creative Work as an Event Vendor

As an event vendor, it may seem unfair that your artistic creations aren’t protected by copyright law, while photographers can license images of your work to third parties, earn money from publications, and use these images to attract new business. Imagine being a high-end florist and seeing a photographer benefit from showcasing your floral designs in their portfolio to attract more high-end clientele. While your contributions significantly enhance the photographer's appeal, the legal rights to the image remain with the photographer.

Given the limitations of copyright law in protecting temporary event designs, what can vendors do to safeguard their creative contributions?

Contracts and Agreements: Clearly outline the usage rights in contracts with photographers and clients. Specify how your designs can be used in marketing materials and insist on proper attribution. Although copyright ownership may not be available for your work, proper credit on every image featuring your designs enhances your visibility and reputation in the industry.

Trademarking: Consider trademarking unique aspects of your brand, such as a logo or a specific design style that identifies your business. For instance, you could add a logo to the back of a menu you create for a dinner event. Or you may be able to have a card below your wedding cake indicating that your company created the cake. However, there may be limitations since clients purchase your services for their event, and trademarks are usually left out of the final design. Ensure your mockup designs, mood boards, and similar materials have your logo prominently displayed. These materials are also copyrightable, so include a copyright disclaimer at the bottom of documents like PDFs.

Vendor Communication: Maintain open communication with all vendors, especially photographers. Explain that your creativity is an integral part of their images and that it is in their best interest to credit your work in magazines or online publications featuring their images. While this is common practice in the wedding and event industry, some photographers may need a gentle reminder.
By taking these steps, you can better protect your creative contributions and ensure your work receives the recognition it deserves.

Just Remember, You Do Have Creative Value

It’s important to recognize that while not all creative works are legally protected, their value in the marketplace remains significant. Just because something is not copyrightable does not diminish its artistic worth or its impact on your business’s success. As a creative professional, understanding these distinctions and navigating them effectively can help you maximize the benefits of your work while protecting your interests as much as possible.

In conclusion, while the legal framework may not fully safeguard every aspect of event design, strategic use of contracts, trademarks, vendor communication, and proper attribution can help protect and promote your creative contributions in the industry.

**If you're a photographer, here's another great blog on licensing options for your images when you share them with vendors. This post features some swipe copy you can use when sharing those images via email. Also, The Legal Paige has a Non-Exclusive Licensing Agreement that you can utilize when sharing images with vendors so it's crystal clear what vendors can and cannot do with your images.

Citations: 17 U.S.C. § 101; Peter Pan Fabrics, Inc. v. Candy Frocks, Inc., 187 F. Supp. 334 (S.D.N.Y. 1960); F.W. Woolworth Co v. Contemporary Arts, 193 F. 2d 162 (1 Cir. 1951); Mazer v. Stein, 347 U.S. 201 (1954); Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art 39 COLUM. J.L. & ARTS 335 (2016); Mazer v. Stein, 347 U.S. 201 (1954), Kim Seng Co. v. J & A Importers Inc., 810 F.Supp.2d 1046 (C.D.Cal. 2011); Kelley v. Chi. Park Dist., 635 F.3d 290, 303 (7th Cir.), cert. denied, 132 S. Ct. 380 (U.S. 2011).