CONTRACTS & LEGAL ISSUES FOR ARTISTS
© David DeSimone
HANDOUTS*
Guide to Copyright Basics
The Anatomy of a Contract
Guide to Artist-Gallery Consignment Contracts
Guide to Small Claims Court
Guide to Leasing Studio Space
Artist’s Guide to the Visual Artists Rights Act
*All of the handouts were published by St. Louis Volunteer Lawyers and Accountants for the Arts. Special thanks to the St. Louis Volunteer Lawyers and Accountants for the Arts for providing permission to distribute these materials at this program. Many other helpful publications are available on the website of St. Louis Volunteer Lawyers and Accountants for the Arts
BASIC COPYRIGHT LAW
1. What is a copyright? A form of legal protection given to “Creators of Original Works of Authorship”.
2. What is the rationale for copyright protection? Allows artists, authors and other creators to obtain economic benefit from their creative endeavors in order to stimulate artistic creativity for the good of the general public.
3. When is a copyright created? Copyright begins when a work is created in a “fixed form”.
4. Who owns the copyright? Generally the copyright is the property of the creator of the work, exceptions including work made for hire.
5. What rights does the owner have? The owner has the right to distribute copies, reproduce work, prepare derivative works, perform the work, and display the work.
6. What works are protected? Copyright law protects “original works of authorship” that are “fixed in a tangible form of expression.” Works that can be copyrighted include the following categories: literary works; musical works including any accompanying words;
dramatic works including any accompanying music;
pantomimes and choreographic works; pictorial, graphic and sculptural works;
motion pictures and other audio-visual works
sound recordings;
architectural works
7. What works are not protected? There is no copyright protection for titles, names, short phrases and slogans; familiar symbols or designs. Some of these items can receive trademark protection. There is no copyright protection for ideas, procedures, methods, systems, processes, concepts, principles, discoveries or devices. Some of these items can receive Patent Protection. There is no copyright protection for works consisting entirely of information that is common property and containing no original authorship (e.g. standard calendars, height and weight charts, etc.).
8. How long does copyright protection last? For work created by an individual, copyright protection lasts the author’s life plus 70 years. Works made for hire (generally employees of businesses) receive 95 years from the first publication or 120 years from creation, whichever is shorter.
9. Notice of Copyright
a. ©, “Copyright” or “Copr.”
b. Year of first publication of works
c. Name of copyright owner
*For works first published on and after March 1, 1989, notice optional, but highly recommended.
10. Registration of copyright
a. Registration is not required
b. Advantages of registration
c. Registration procedures
11. Work Made for Hire - exception to ordinary rule that creator of work obtains copyright. This is available in 2 situations: With an employee who creates work in the regular scope of employment. With specially commissioned work by a non-employee, if there is a written agreement that the work is to be made for hire. This only applies to certain specified (and limited) types of work.
12. Transfer of copyrights. A copyright owner can transfer any or all of the owner’s exclusive rights in the work. Transfer ownership of a material object that embodies a protected work does not transfer the copyright. Transfers must be in writing and signed by the copyright owner.
13. Fair Use Doctrine is the limited right to use copyrighted materials without compensating the creator. Instances include criticism, comment, news reporting, teaching, scholarship and research; parodies; copies for personal use. The problem is that what is a “fair” use is not well defined. The more limited the use, the more likely it will be found to be a fair use.
14. Moral Rights
The concept is that the artist’s reputation and livelihood are dependent upon presenting his work as created. Moral rights are not fully protected in US. There are four categories of moral rights. They include the right to be credited as creator, to prevent others from claiming they created work and to prevent a name
from being used on work you didn’t create; the right to prevent work from being altered or mutilated; the right to withdraw work if it no longer represents the author’s views; the right to determine how and when work is made public.
BASIC CONTRACT LAW
1. What is a contract?
2. Three required elements for a contract include offer, acceptance and consideration.
3. Consideration is defined by the exchange of something of value. Gift promises are generally not enforceable because there is no consideration. Consideration is not always money. Consideration can be a promise to do something in future. Consideration can be performing a service. Consideration can be a promise not to do something.
4. Contracts can be written or oral, however beware of oral contracts. Most contracts are enforceable even if not in writing but some types of contracts must be in writing, including transfers of copyrights. A written contract is the best practice. It avoids misunderstandings about what is agreed to, provides a record of what was agreed to, and is much easier to enforce.
5. Important considerations for written agreement: Put every provision in writing. Use clear language. Make sure you understand every provision. Beware of “standard form” contracts. Don’t include any provision that you don’t agree with or cannot live with. Do not assume you can change the agreement after it is signed. Both parties must sign the agreement. The agreement should be dated. Make sure both parties have a copy of the signed agreement. It is often less formal and less threatening to use a “letter agreement”.
6. If you are unsure, get legal advice. Especially when there is allot of money involved, if it is a long term agreement, or if you don’t understand the agreement.
PRACTICAL TIPS FOR NEGOTIATING CONTRACTS
1. Do not be afraid to negotiate.
2. Make sure the other party fully understands your position and motivation (i.e. what you want and why you want it).
3. Make sure you understand the other party’s position and motivation (i.e. what they want why they want it).
4. Have a professional/business-like attitude. Do not take other party’s position/statements personally. Do not get "personal" with the other party.
5. Do not expect to get everything that you want.
6. Be sure to keep the "big picture" in mind (i.e. know your important goals and objectives).
7. Do not make threats or demands that you are not willing or able to carry out.
8. Do not take unreasonable positions.
9. Do not allow the other party to intimidate you or “push you around” and do not try to intimidate the other party.
10. Be flexible -- try to find a creative alternative or a middle ground to allow both parties to reach their objectives.
11. Once an agreement is reached, put all of the terms and conditions of the agreement in writing.
12. Be sure that both (all) parties sign the written agreement.
13. Do not sign anything that you do not understand.
14. Do not sign an agreement with terms you do not agree with or cannot live with.
15. Do not assume that you can change the terms of an agreement after it has been signed. The agreement can only be changed if both parties agree.
16. Beware of “standard form” agreements - likely to be overly favorable to party who drafted the form.
MISSOURI CONSIGNMENT ACT
1. What is a consignment? Consignment: transfer of physical possession of fine art by the artist to consignee; consignee has no title to,
estate in or right of possession in fine art superior to that of the artist; consignee has power and authority to
transfer and convey title to a third person. Artist: person who created the fine art or if the person is deceased, such person’s heirs. Art Dealer: person engaged in the business of selling of fine arts, but not a person exclusively engaged in selling
goods at public auction. Fine arts includes: visual arts, such as paintings, sculptures, drawings, mosaics or photographs; calligraphy; graphic art, such as etchings, lithographs, off-set prints, silk screens and other works of a similar nature; crafts, including items made through use of clay, textiles, fiber, wood, metal, plastic, glass, ceramics or
similar materials; works in mixed media.
2. Risks of Consignments
a. Consignee sells work but does not pay artist.
b. Consignee’s creditors claim an interest in the art or the proceeds of the art.
c. Art is lost, stolen, or damaged.
3. Missouri Consignment Act - R.S.Mo. Sections 407.900 to 407.910
5. How a consignment is created under the Statute. An artist delivers a work of fine art of the artist’s own creation to an art dealer for the purpose of exhibition or sale. The work is accepted by the art dealer unless delivery is pursuant to an outright sale for which the artist is paid full compensation at or before delivery.
6. Written agreement required. Must include at least the following provisions: The proceeds of the sale must be delivered to the artist on a schedule agreed to by the artist and the art dealer. Art dealer is responsible for the stated value of the work in the event of loss or damage. Art dealer must sell work for at least the amount agreed to in writing by the artist. The art may be used for display by the art dealer and others only with the prior written consent of the artist.
7. Art dealer is an agent of the artist. Art dealer must represent the artist and take actions in the artist’s best interests. Creates a fiduciary duty to the artist; special obligation to look out for the artist’s best interest by providing all relevant information to the artist, and not taking any action which is contrary to the artist’s best interest.
RESOLVING DISPUTES
1. Mediation
2. Small Claims Court
3. Arbitration
4. Sue the B******s