“Merch is where the money is.”
You may see Bob Timberlake, the 86-year-old artist in Lexington, North Carolina, only as a painter of rural imagery (house in the woods, wicker chair in front of hydrangeas, house surrounded by a snowy field, picked strawberries in a basket, house on an island), but he also is a brand. His name is trademarked, as is his signature and an image of a quill, to identify a variety of products that he has designed or with which he is associated. His name is attached to bedroom furniture, living room furniture, dining room furniture, kitchen furniture and wall decor (including frames, signs and plaques), plus mirrors and pillows, colognes and perfumes, dinnerware, decorative pottery, stoneware, and enamelware. Then there are the ceiling fans, electric lighting fixtures, fabrics, curtains and clothing, house paints and wood stains. He has even put his work and his name on the Bob Timberlake Boykin Collection of whiskey and wine.
His son, Dan Timberlake, a lawyer and advisor to his father, told Observer that “there are close to a dozen trademarks.”
Perhaps, we need to step back a moment and ask—Is Bob Timberlake an oddity in the art field, licensing his name to a variety of home and bath products when he isn’t painting? The answer is no. There are quite a few other artists in this space with a “brand” that pushes products in a commercial context, such as Keith Haring’s Radiant Babies on t-shirts, magnets, stationery and baseball caps. Many other artists, including Banksy (who doesn’t do licensing), Jean-Michel Basquiat (whose estate does), Dale Chihuly, Norman Rockwell and Andy Warhol, have trademarked their names for merchandising purposes.
Perhaps, we need to step back a moment to define the term. Trademarks are words, logos or images—for instance, Jolly Green Giant, Aunt Jemima, Betty Crocker or Mickey Mouse—that specifically symbolize, or refer, to a company’s products and services.
One more often associates artists with copyright than with trademarks, but they may have both. Certain marks can be both copyrighted and trademarked where there is a distinct design element. A thumbnail self-portrait of Andy Warhol along with his signature have both been copyrighted and trademarked, but certain written terms—Warhol Factory and Silver Factory, for instance—have only been trademarked.
What distinguishes Bob Timberlake is not so much his brand but the fact that he pursued licensing his name while alive, compared to other artists whose commercial viability was generated by the executors of their estates. In the past year alone, the sisters of Jean-Michel Basquiat, who died in 1987, have licensed his name for scented candles, flip-flops and Great Jones Distillery’s Basquiat whiskey, as well as $159 welcome mats from Ruggable. Timberlake is not the only living artist whose name generates income.
New York-based expressionist painter Tom Christopher is another living artist currently licensing his work (and name) to two companies: the first, a dress-making firm that will incorporate his work in shirts (“Illusions by Tom Christopher” is the line), and the second, the Swiss watch company Ikepod. Christopher began his career as a commercial advertising artist before switching to fine art, so the side hustle of trademarked collaborations was never far from his consciousness.
“Merch is where the money is,” Christopher said, before adding that he doesn’t “make all that much” from licensing deals. “If I get a check, it’s a surprise.” Still, he was in the running to design a BMW art car, which would have involved very little money but a lot of prestige. “I wanted to rub elbows with Warhol and Jeff Koons,” both previously commissioned by the German automaker BMW to create art cars.
BMW (BMWYY) has worked with twenty artists over the past several decades, including John Baldessari, Alexander Calder, Futura 2000, David Hockney, Jenny Holzer, Jeff Koons, Roy Lichtenstein, Julie Mehretu, Robert Rauschenberg, Frank Stella and Andy Warhol, to produce one-of-a-kind (or limited edition) art cars—mostly for showing off but sometimes for racing at LeMans, according to Thomas Girst, a spokesman for BMW in Munich. With Koons, an edition run of ninety-nine M850i xDrive Gran Coupés were produced with the artist’s images on them, priced at $350,000 (almost twice what they cost without the designs), “and they sold out in just two weeks.” All artists commissioned by BMW are given two undecorated cars as payment and for editioned models, they receive a small royalty based on the sales price for each vehicle sold. “It’s shared risk,” Girst said.
The automaker consults with museum directors from around to identify artists interested in being commissioned to design an art car. In all these years, Girst said, only Jasper Johns has turned down the opportunity. (“He wasn’t interested in the idea of mobility.”)
Licensing deals let artists, or the artist’s heirs, earn money even as the number of saleable artworks in an estate diminishes over time. There was controversy some years ago when the heirs of Mexican artist Frida Kahlo disagreed over the creation of a Barbie doll with her likeness, but the legal dispute was less about the overall concept of product branding—a strange legacy for an artist who espoused Communist ideals—but in the specific use of her name and image. The artist died intestate, so who has the specific rights to use a trademark was not clear.
Opportunities to extend an artist’s brand are easy to find for some artists and their agents. “We are contacted by multiple manufacturers every day about licensing products, but we are very selective in our approvals,” said Lily Lyons, director of exhibitions and external affairs at the Calder Foundation, which acts to collect, exhibit and interpret the art and archives of artist Alexander Calder. “We have very occasionally undertaken product collaborations that we find educational and inspiring.” Artists and their agents also have to guard against illegitimate uses of their names and images. Lyons and the foundation “try to fight unauthorized products to the best of our ability, as they are a disservice to the work of the artist, an example of which is a marketplace of Alexander Calder socks.”
Bob Timberlake’s trademarks have been subject to lawsuits when other manufacturers have sought to stop him from trademarking a name that is close to theirs. Timberlake Cabinetry, a division of American Woodmark Corporation, sought to prevent Bob Timberlake from registering his name in similar products that might compete in the market, and Timberland, a manufacturer of outdoor clothes, shoes and accessories, also tried to block the artist from registering his name even though the two companies do not compete. “They both lost,” Dan Timberland said, but added that the two lawsuits cost his father between $250,000 and $300,000.
It’s a sobering takeaway. When artists consider licensing their brands, they should think very seriously about whether they’re ready to go head-to-head with large corporations in court. The ever-present threat of frivolous lawsuits might just be the main downside of brand licensing for artists who don’t have the cultural capital of
