These tips are not for the purpose of providing legal advice. You should consult a solicitor for advice on specific matters.
CONTRACTS
A legal contract is always the way to go. If you cannot do this, get as much as possible in writing: a written agreement; a clear exchange of emails; a signed napkin with notes…
A legal contract has four elements: the offer
- acceptance of the offer
- consideration (what is paid – remember this does not have to be money)
- the intention to create a legal relationship
If one of these is missing then you don’t have a contract! Have you ever had to agree to pay one peppercorn for something? This is the consideration – without some form of it, there is no legally binding contract.
INTELLECTUAL PROPERTY
Intellectual Property (IP) is quite a broad term, but it covers the ‘creations of the mind’ (got to love that phrase). It is your rights over what you have created: what you have created is legally viewed as your property. You have the right to manage how your work goes out into the world, how it is treated, and how it is represented.
For artists, the three main aspects of Intellectual Property are: Copyright; Moral Rights; Resale Rights.
Copyright
The right entitles you to benefit economically from the reproduction of your works. You automatically own copyright of your work and it lasts for your full lifetime and 70 years after your death. Copyright can be ‘assigned’ or ‘licensed’.
- Assigning your copyright means you can never get it back and will have no future rights to it. You will also not have control over the way in which your artwork is used.
- Licensing your copyright is granting permission to use your artwork. You can decide in which way it is used and for what purpose. You can license the same artwork for various uses. Things to be wary of: reproduction quality (especially colour); that others should not manipulate or montage your images; that credits and work details are accurate. If you don’t want to deal with it yourself, DACS (Design and
Copyright
Society) www.dacs.org.uk can represent you worldwide, negotiate prices and rights, and pass on your royalties minus an administration fee.
Moral Rights
These rights allow you to protect how your work is seen – you can legally object to any modification, deformation or mutilation of the work. They also protect your right to be identified as the artist.
The laws are different in each country: In the UK these rights last the same length as (economic) copyright. In the US they cease upon the artist’s death. In France they last forever. You can waive your moral rights. Unlike copyright, they cannot be assigned or licensed.
Independently of the author’s economic right, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation. Copyright and Designs and Patents Act, 1988
As artists experiment with the bounds of traditional media, it is important to note that moral rights do not cover computer programs, material used in newspapers and magazines, or reference works like encyclopaedias and dictionaries. I look forward to the court case in which these rights are asserted for a computer program as a work of art – won’t the court transcripts be interesting? An important spin-off of this right is a question of restoration and conservation. If anyone has interfered with your work, you can essentially disown it. Always send detailed instructions with your work, along with maintenance plans, and think about what will happen to your estate after your death. In contracts, address the issue of conservation and restoration – does this need to happen with your authority? Can restoration happen at all?
Best practise is that any future owner should ask your permission before embarking on any restoration works.
Resale Rights
The Artist’s Resale Right (also known as Droit de suite) means that you could be entitled to a royalty when your work is sold for over €1,000 on the secondary market. The work has to involve participation by an ‘art market professional’ i.e. a dealer/ gallery/auction house. ARS only applies to works sold in the European Economic Area (EEA). Works must be original works of art or limited editions made by the artists themselves, or under their authority, including “works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs”, and under copyright protection. Your royalty is worked out according to a sliding scale from 4% to 0.25%.
Portion of the sale price / Royalties From 0 to €50,000 / 4% From €50,000.01 to €200,000 / 3% From €200,000.01 to €350,000 / 1% From €350,000.01 to €500,000 / 0.5% Exceeding €500,000 / 0.25%
This scale is cumulative, so if you reach more than one of these thresholds, you will get that amount at that percentage – add these all up to get the final sum. The maximum royalty is capped at €12,500. In the UK you can only claim resale royalties through a collecting society. DACS (Design and
Copyright
Society): www.dacs.org.uk and Artists’ Collecting Society: www.artistscollectingsociety.org are the two main UK collecting organisations. The right lasts the same length as copyright: the artist’s lifetime and 70 years after the artist’s death. This is an inalienable right – you cannot choose not to have it, or give it up, and no-one can take it away from you. Forms of the right were first introduced in France inspired by Jean François Millet’s wife living in extreme poverty whilst his works were selling for fortunes.
The Intellectual Property Office offers this information booklet: www.ipo.gov.uk/businessguidance.pdf