Who should own a trademark?

Character creator or illustrator

[ADPickle]

I hope I'm not asking something that doesn't belong here, but I can't find an answer anywhere. Here is the scenario:

The author writes a children picture book. She creates a strong character and specific scenes but is not an artist.

She hires an artist to illustrate the book. The artist brings the character to colorful life.

Is the author obligated to share a trademark of the character with the illustrator?

My apologies if this is an inappropriate question for this forum. If no one knows could you please direct me to another site or forum?

Thanks in advance.

[stajer]

Welcome to WebmasterWorld AdPickle.

You are talking about copyright, not trademark. In the United States, if you hire someone to create artwork for you - whether a website or an illustration for a children's book - the copyright will remain with the artist UNLESS the contract between you and the artist explicity said the work covered was a WORK FOR HIRE and rights would go to the buyer.

[ADPickle]

Thank you Stajer. This is helpful, for the contract did read the work was for hire. The author has copywritten the book in her name. The reason I'm asking about the trademark issue is, the author is thinking of trademarking this character and the artist feels that she should own the trademark as well. Sorry for my poor terminology.

[purplecape]

In a work-for-hire situation, rights to the trademark likely reside with the author too, but it depends on the wording of the contract.

[Marcia]

If it's specifically work-for-hire, this is what applies under U.S. law:

[copyright.gov...]

The copyright belongs to the one who did the hiring. Was it WFH or independent contractor? There's a difference between the two.

[edited by: Marcia at 2:13 am (utc) on Sep. 5, 2008]

[Marcia]

More:

The author writes a children picture book. She creates a strong character and specific scenes but is not an artist.

Creating a character is beyond simply copyright of an illustration or artwork, it's the original creation of a whole "concept" and identity. The author who developed and conceived the character is the creator.

i.e.: who drew the Mickey Mouse cartoons?

The author has copywritten the book in her name. The reason I'm asking about the trademark issue is, the author is thinking of trademarking this character and the artist feels that she should own the trademark as well.

The trademark should rightfully belong to the author who created the character, and she should definitely trademark it, if only for licensing protection in the future.

Disclaimer: this is not to be construed as being in any way legal advice or opinion, because it isn't. It's just my personal opinion based on whatever I've read and seen; but if I were the author/creator I'd fight tooth and nail to fully protect all the rights to my creation.

[edited by: Marcia at 3:58 am (utc) on Sep. 5, 2008]

[ADPickle]

Thank you all so very much for this helpful information. Marcia, I feel the same way you do, it's my friend's creation and I want to do everything I can to help her protect her wonderful creation. The link is extremely helpful as well.

I hope I can assist any of you one day in some manner.

My heartfelt appreciation to you all.

Thank you.