Artwork Licenses Explained
At its core, artwork licensing is the process by which an artist can legally give permission to a business or person to use their art. This can take many forms and will likely vary from one agreement to another and one type of license to another, but usually an artist will license a business to run a certain number of copies or sales of a certain design for a certain period of time.
Artwork licenses can be strictly defined agreements that are only good for a short amount of time and near a specific geographical area , or they could be open-ended and without limits on the amount or duration. Generally, while artists and businesses might have differing opinions, it’s in the best interests of both sides to have very clear, detailed agreements.
Quality artwork licensing relies on solid communication between an artist and a business. If either group struggles to get a message through to the other, an agreement could be missed. The best way to avoid issues is to have a professional document to which both sides can refer.
Artwork Licensing Agreements Essentials
There are several key components that should be included in an artwork licensing agreement. These provisions are essential in order to define the rights and responsibilities of both parties and to avoid potential issues down the road. Following is a brief discussion of some of the more relevant components:
License Scope
A principal aspect of any artwork licensing agreement is the scope of the license being granted. A license can be granted for all forms of artworks, but often is limited to specific applications such as publication or electronic media. When an artwork is used for the first time in a new application, a permission must be sought (and additional fees paid) unless the proposed new application is somehow covered by the license from the first use. A license can also be limited with regard to the particular products manufactured, sold, published, distributed, etc. that may incorporate/use the artwork; the number of copies that may be produced or distributed; the geographic area where the product may be marketed/sold/distributed; and the duration of the license. The scope of the license must be clearly defined to avoid future disputes.
Payment Terms
Along with having the clear scope of the license, payment terms of the artwork licensing agreement also should be clearly defined. How the licensee will pay the artist for use of the work and how often, for example, should be clearly stated. In addition, payment may be contingent upon particular events such as publication, manufacturing, distribution, etc.
Restrictions
The license may require certain restrictions on the use of the artwork to protect the artist’s name, reputation and goodwill in the artwork.
Picking an Appropriate Template for Your Licensing Agreement
The primary factor in selecting the correct artwork licensing agreement template is, of course, the type of artwork to be licensed. The AGD template is appropriate for most types of licensed work. The "contract designer" template is appropriate if interior design services are involved. The "illustration/artwork/services" template is the right choice if a product design is included in the license, rather than simply a license to reproduce an original work of art. The "textile" template is right if a "design or embellishment is to be imprinted [on the licensed product] by screen printing, weaving, stitching, sewing or other fabric transfer technology such as sublimation or dyeing." The "photography" template is appropriate for photographic images, usually two-dimensional photography. The "3D modeling" template is appropriate for three dimensional models and sculptures.
Jurisdiction is also crucial in determining the proper template. The templates vary by State. For example, the "generally acceptable" template is used in most states, but be sure to be clear on which licensing agreement will apply to you.
Personalizing Your License Template
Once you have chosen the most appropriate pre-existing template, whether from a third-party or created by you, you will need to customize the form to address the specific terms of your transaction. The advantage of starting with a pre-existing license or assignment agreement is that its provisions will likely have been carefully tailored to address the multitude of issues that arise when selling, assigning, licensing or otherwise conveying rights in artwork. Where this is not the case, or where the template has not been carefully tailored for the proposed transaction, you will need to carefully customize your template so that it addresses those issues and provides for all of the specific terms of the agreement. As is the case with using a pre-existing template form of agreement, written agreements should also be tailored to the specific transaction and goals of the parties. Parties to an agreement or contract should note that agreement to a form battle-tested from prior deals, as noted below, does not eliminate the need to consider whether specific input is needed:
License Template Common Questions
Even with a template, problems can arise around how the relationship is structured, the payment schedule, or other key features of the contract. So what do you do when issues come up and you need to alter the text of the licensing law contract? One common source of conflict is compensation. This may happen when the parties have not clearly identified the distribution of money in the contract or the work takes longer than planned (at that point, time is money). At times an artist will need to renegotiate the contract with a client or publisher and get their consent over an amendment to the contract, whether it is to modify the trademark or title that is a part of the mixed-media. Though the license may be written as a binding agreement that is difficult to change, broader re-negotiations that cover matters like royalties, ownership, and producers may disguise itself in negotiation. A common misconception is that the license is void if the creator has taken assistance from both lawyers and agents . The truth is that materials written by an agent are not at all legally binding, but a contract aided by both a lawyer and an agent is a legitimate contract. If the compensation scheme in the contract fails to be an exact fit, for example, if it doesn’t exactly match the artist’s scope, it’s possible to customize the contract. Some artists find that they would rather avoid writing a custom contract, however a licensing law contract may be altered if it avoids copyright. The alteration must not eliminate the artist’s rights and shouldn’t override the contract’s confidentiality clause. An artist can also alter their contract to include additional elements, like an exclusivity clause that specifies their involvement, scope and duration. It’s imperative to think of all possible solutions to problems that arise. A good contract will often fold up into a variety of shapes to fit the needs of both parties, so long as it is fully defined and explains the responsibilities of all entities involved.
Licensing Agreement Legal Issues and Compliance
Navigating the legal complexities of artwork licensing agreements is a critical aspect that both licensors and licensees must consider. While a well-written agreement acts as protective legal documentation for both parties, it is crucial that such contracts adhere to the framework of intellectual property (IP) laws. A deep understanding of IP rights surrounding artwork not only safeguards the interests of the creator but also prevents any potential breach of their legal entitlements.
Licensors should be fully aware of their ownership rights prior to agreeing to the transfer of any IP in an artwork licensing contract. If licensing out their work, it is imperative to be clear about the scope of the license, including the type of use (e.g., reproduction or distribution), duration, and territorial restrictions. When issuing a license, it is equally important for a licensor to make sure that the use does not violate any existing licenses or agreements already linked to the artwork.
From the licensee’s perspective, a fundamental prerequisite when entering into an artwork licensing contract is to confirm the licensor’s authority to issue such a license. It is pertinent to study and understand the details of the original artist or creator to ensure compliance with existing IP laws. Failing to do so might lead to future disputes or even liability issues.
Both parties should also be familiar with international laws and agreements that may apply, especially for cross-border licensing agreements. For instance, different countries have varying copyright laws that affect the protection and commercialization of artworks. If parties are not aware of these stipulations, the usage of the artwork may unknowingly infringe on the creator’s legal rights.
Finally, what can be often overlooked is the need for an artwork licensing agreement to abide by general contract principles. From legality to capacity, agreements must observe the basic tenets of contract validity to be enforceable in a court of law.
Helpful Licensing Resources
Should you require further assistance, there are a number of resources available. These include online services such as The Contract Company, who offer many template documents as well as online legal advice for a fee; Community Legal Centres, with who the Commonwealth has a partnership with to resolve difficulties for artists, and of course The Arts Law Centre of Australia, of which I am an Ambassador , who provide assistance to arts practitioners with a variety of legal issues.
If you are seeking a more thorough understanding of artwork licensing or simply want to understand the issues that can affect your work, there are a number of publications available for purchase online, such as The Australian Art Field by David Bromfield or Artist to Artist: An Artist’s Guide to Collaboration.