The visual artist faces various legal questions during the stages of the creation, exhibition, and/or sale of their works. Understanding and considering these legal implications is imperative to protecting yourself as an artist. We help artists protect their works and avoid unnecessary risks so they can focus their attention on their art. We can help you copyright your work and counsel you as you take your pieces out into the world at large.
Selling your art through a third-party such as a dealer or gallery puts you squarely in the middle of a business relationship. Furthermore, you want to ensure your work is safe when being exhibited or lent to a museum or art-space. A successful relationship hinges on you and the other parties involved having a clear understanding of the arrangement, especially the details sometimes overlooked when deals are done without legal guidance. Most disagreements can be avoided by being proactive and seeking the counsel of an attorney, such as those at Johnson & Moo, to assist you with drafting and negotiating your contracts with dealers, galleries, auction houses, exhibition spaces (such as cafes, etc.), private buyers, and others involved in the art world. Avoid souring relationships or even possible litigation by having us assist you with the business side of your transactions.
Art Sales and Auctions
Art sales and auctions both require contracts. We recommend having all of the following agreements in writing: those between 1) buyers and sellers in the case of a direct sale, 2) auction houses and sellers, and 3) auction houses and buyers. Sometimes additional agreements with brokers or other party representatives are also necessary. These contracts may seem intuitive and basic, but you will be glad you have them should there be any dispute as to ownership, money paid, money owed, authenticity, and moral rights.
Authenticity and Provenance
With so many valuable works of art in this world, knowing the authenticity and provenance of a work is extremely important. We assist in due diligence to review authentication documents and the history of a work prior to solidifying a sale, transfer, or lease of a particular piece. When necessary, we retain experts that will work with us to assist in these evaluations – or if appropriate, we attempt to cost shift for you and have the other party pay for or retain the expert so that you do not have the upfront costs, while still maintaining your rights to review and audit any and all expert evaluations.
Branding and Trademarks
Whether you are an individual or company, if you are in the business of dealing art, you should consider branding yourself with a trademark. What is a “trademark”? Basically, it is a source identifier. It tells the world that your particular goods or services are being offered. This can increase profitability and open many doors as you make yourself more recognizable to the art industry and public. We register trademarks domestically and internationally.
Consignment and Commission Agreements
Although consignment and commission agreements are commonplace in the art industry, there are still terms, from both sides of the agreement, that should be of primary concern when entering such a potentially profitable, but also risky, business endeavor. In addition to the basic percentage paid in a commission agreement, the situations in which commissions are and are not provided must be clearly, unambiguously described to ensure all parties understand the agreement, get what they bargained for, and do not need to sue the other party later.
Consignment agreements are generally risky for both the creator and buyer, but they can be very rewarding and are one of the amazing ways to develop truly unique, creative, and/or personal art. Thus, having a contract to account for as many of the possible problems is a safe and smart way to go about this business arrangement. There are facets of these agreements that we will handle, such as who retains the moral rights, to ensure all parties are content.
As an owner of the copyright in a work of art, it is important that you protect your intellectual property rights. If a work of art was created by you, or its rights were assigned to you in some way, then you likely own the copyright interests in that piece. Registering with the U.S. Copyright Office is the best way to protect your interests in that work.
If you think someone has infringed on your rights we can prepare a “cease and desist” letter informing them of their unlawful activity and the need for them to stop immediately. If the situation is not resolved like that informally, a proper copyright registration will allow you to bring a law suit against the infringing party and seek damages. You may have heard that you automatically receive a copyright upon creation of your work. While this is true, if you are ever in a position to bring an infringement law suit against someone, a registration certificate by the U.S. Copyright Office is usually necessary to prove your case and get the most compensation for the infringement as is possible.
Exhibition and Loan Contracts
At first blush, some deals seem straightforward and beneficial to all parties. But, we help you get the most from your contracts while still making a fair deal. We consider the term, money, and credit provided in exhibition and loan contracts. Other more unique provisions we will discuss and consider with you include the use of your name in advertisements, your right to review and approve advertisements, and/or the right to authorize advertisements. We also ensure provisions, like insurance, are appropriate for the circumstances.
Licensing agreements are frequently used in various industries. Because of that, agreements from other industries get utilized improperly for the licensing of art. Although portions of the agreements may be similar, there are particularities of art licensing agreements that need to be considered. We will review how royalties are calculated, how and when advances are provided, when sell-offs are allowed, and other provisions to ensure they are fair for you and in the industry.
Even when you are simply using a model to create your art, there are legal implications. You want to make sure you have the proper releases and waivers so that you can 1) retain all rights in your work, 2) transfer the rights in your work, and 3) avoid disputes and litigation if possible. Often, parties believe that because of the informal feeling of their relationship with a model, they do not need to worry about contracts and legal jargon. But, you are in a business relationship with your model if you intend in any way to profit from, sell, or market your art. Having the formality of attorney-drafted agreements will help you protect yourself, your rights, and avoid disagreements.
All copyrightable works contain what the legal industry terms “moral rights.” The artist of a copyrightable work automatically holds these moral rights, unless they are waived and/or properly assigned. These rights allow an owner of a copyright to choose to preserve the integrity of his/her work. There are two main subcategories that are usually of concern or interest: droit morale and droite de suite. Droit moral allows an artist to have his/her name associated with the work, even after it is sold. Droite de suite allows an artist to potentially collect money from all future sales of a piece of art.
We understand that art law does not only involve protecting the artists. If you want to purchase art, you need to be protected too. You are paying to obtain the full rights in that work and you need to ensure that you are getting all of those rights. The safest way to do that is with an attorney-drafted, written agreement. We make sure that the artists give up their moral rights and any future rights to any portion of the art, if that is what you desire to purchase. We can also help with more complicated arrangements wherein you wish to purchase a portion of the rights, but not all. In such situations a written agreement is even more important to make clear what both sides are getting, retaining, and giving up.
Representation & Option Contracts
To facilitate the sale and/or lease of art, representation and option contracts are used. There are a few vital provisions that go into such an agreement that need to be negotiated, agreed upon, and fixed in writing. These terms include whether the contract is exclusive, its term and any termination abilities of the parties, the percentage paid to the parties, and the obligations and warranties made by the involved parties. Signing a representation or option contract that you do not understand could significantly limit your rights and your ability to profit from the arrangement. Having an attorney draft the contract or review one presented to you is strongly recommended.
If you own the copyright in a work of art, one of those “rights” you hold is the right of reproduction. You get to dictate how and when that work is reproduced. When an artist allows another party to reproduce its work, he or she should enter into a reproduction contract. The artist and reproducer both have interests that should be reviewed in such an agreement.
If someone is reproducing a work for which you own the copyright, you may also want to pursue them to enforce your rights. We can send “cease and desist” letters and pursue other more severe remedies, if necessary.
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