Maryland Bar Bulletin
Publications : Bar Bulletin : October 2013

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The Internet age has provided artists with a market for their work that is literally world-wide. However, the magnitude of those opportunities, combined with the ease with which intellectual property can be manipulated and stolen through the World Wide Web, requires artists and their legal counsel to take specific contractual steps to protect the integrity of their work, while ensuring that the work is being effectively marketed.

There are two general areas of concern when crafting contract language for a license to display and market an artist’s work: ensuring the protection of the artist’s copyright interests, and ensuring that the artist’s agent(s) is working diligently and honestly to promote the reputational and financial interests of his or her client.

With regard to copyright interests, there must be a formal and specific declaration that the artist retains, at all times and in all cases, all copyrights to the work in question – except, of course, to the extent that those rights have previously been conveyed (and the contract should describe the extent of that conveyance and the related parties).

Along similar lines, a clause should be included stating that no Internet images of the work should be altered in any way, including potential alterations by any third parties with access to the work. The artist, of course, should have a contractual guarantee that he or she will be able to personally approve any computer files of his or her work before those files are uploaded to the Internet, and that only approved files will be uploaded. Likewise, a guarantee should be included stating that no reproductions or sublicensing of the work shall be permitted without the written permission of the artist.

Finally, regarding the question of copyright, the license should specifically provide that the agent will notify the artist of any known or suspected infringements of the artist’s copyright, whether by the actions or inactions of the agent or a third party.

With regard to the integrity and diligence of the agent, there is a broad range of issues that should be addressed in drafting a license. Here are some of the most important ones:

  • The license should specify a definite start date for the agent’s efforts on behalf of the artist, coupled with a guarantee that the agent will make a good-faith effort to market the artist’s work beyond the posting of the work and related information on the Internet.
  • It must include a clause that describes in detail the named credit to be given to the artist, down to the selection of typeface, font size, and location on the site itself, coupled with provisions on the extent to which the work will be displayed on the site (e.g., display on site’s home page, display on a separate page, etc.) and, if the artist has his or her own website, a guarantee that the agent’s site will include a link to that site (again, with specifications about the location, prominence and general appearance of the link).

It must also include a provision for a quarterly review of the agent’s records by the artist’s accountant, as is commonly done in the music industry, and for the artist’s right to demand immediate payment of any sums then currently due under the terms of the license.

With regard to the question of assignment and delegation of rights and duties, the license must specifically bar any assignment or delegation of rights or duties on the agent’s part without the written permission of the artist.

No license should ever include “automatic renewal” provisions; rather, it should state that renewals should occur every two or three years, and shall only become effective and binding when the parties take affirmative steps to make that happen.

With extremely rare and unlikely exceptions, no license should grant an agent an “exclusive” or “worldwide” right to market an artist’s work. Just because an agent has a website does not mean that he, she, or it has the financial and personal resources in every market around the globe to effectively sell an artist’s work in all potential markets. An artist who signs a licensing agreement that contains such language runs a very serious risk that he or she will be permanently bound to use in all markets an agent who might not even have the power to effectively reach even one. 

While the foregoing is not an exhaustive list of issues to consider in drafting an art licensing agreement, it should be comprehensive enough to illustrate the importance of retaining competent counsel to represent the artist’s interest in this rapidly-growing avenue of marketing art and artists.

Stephen R. Rourke is a partner in Rourke & Rosenberg, LLC, an immigration law firm in Pikesville, Maryland. In addition to immigration, Mr. Rourke practices family, business, non-profit and entertainment law.

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Publications : Bar Bulletin : October 2013

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