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Art licensing is a great way for artists to generate additional income for their work. As the copyright holder of the work, you control how it can be used and what you would receive for its use, whether that use is a one-time sale or a continuous use over time. Think of art licensing as “renting” the reproducible image of your artwork to a person or company to use in some specified way for a defined period of time. Licensing artwork doesn’t usually include physical work as licensing requires the work to be easily reproducible, so it is generally the digital version of the work that gets licensed, not the physical work.  

For example, you could license a pattern you digitally created for a line of wallpaper or your oil painting of a pine forest that was digitally photographed for the package of a pine-scented candle.  

Unfortunately, much of the general public, such as your customers, are unaware of what they are really purchasing when they buy your work.  Take the following scenario.

Licensing Latte Art. Janet recently opened a local coffee shop called “The Grind” and hires you as a photographer to shoot the new store and the unique latte art that has been drawing customers throughout the area. The photos are intended to be used for the Grind’s new website.  You complete the shoot, invoice Janet and are paid for the work. Six months later, you are reading Wired magazine and see an article on a new coffee machine called “CoffeeArt”, which creates cool foam patterns automatically.  On the product packaging, you see your unmistakable photographs from The Grind, with their telltale signature latte foam art.   You call Janet immediately.

Janet says, “Yeah, pretty cool right?  That company was started by a friend of mine and I gave him those pictures for the product packaging so we could get some publicity.” You tell her that you hold the copyright to your photos and that she had no right to give them to someone else. They were only supposed to be used for her website.  Janet responded that she bought the photos so they are hers to do with what she wants. You then contact CoffeeArt and tell them they are using your photos without permission and ask them to pay you for the use of the photos. CoffeeArt asks you to contact their attorney.

Scenarios like this are all too common. Janet and CoffeeArt are not maliciously infringing your work; the misuse purely occurred due to a misunderstanding as to what rights Janet was entitled to when she hired you.  To avoid scenarios like this, it is important that you communicate to your client exactly what rights they are receiving.  The appropriate vehicle for ensuring that all parties understand how the works can be used is an art licensing agreement.

What exactly is an art licensing agreement?

As the copyright holder, you are provided exclusive rights in your work as per the Copyright Act.  Those rights include the right to make copies, distribute, publicly display, and make derivatives of your work.  Those rights are solely yours and cannot be taken away.  However, those rights can be transferred to another entity, either in their totality or just a limited use.  

An art licensing agreement, also known as an art licensing contract, sets out the rights you are giving away as well as other terms by which you are allowing the licensee to use the image for a product or service.  The agreement should explain where and for what period of time your artwork can be used, how much money you will receive for its use, and how and when you will receive payment, including whether it is an ongoing scheduled payment or a one-time fee. An art licensing agreement can also include terms for renewal and how the artwork can be used as part of any promotional activities related to the product or service.

More importantly, the agreement sets out the rules for handling matters if any of the terms in the agreement are broken. For example, if the licensee sells the company to a larger conglomerate, does the new company have the right to use your work, or would you want to renegotiate the fee? If there is a problem between you and the licensee, and you want to file a lawsuit, in some situations, you would have to file it in the licensee’s state, which may be very inconvenient, requiring you to travel there for court proceedings.  The agreement instead could stipulate that all lawsuits are filed in your County/State.   

The art licensing agreement should also include some guarantees for your licensee as well.  For example, what happens if the image you are licensing includes something that unintentionally violated another artist’s copyright?  Under copyright law, even though the licensee is not at fault, they would still be held responsible because they are displaying and reproducing the work without the permission of the copyright holder. It doesn’t matter that the licensee was unaware that the art was infringing. The licensee would then have to pay a portion of the product or services’ profits to the copyright holder. To handle this possibility, many art licensing agreements include a warranty by the artist that states the work does not infringe on another person’s copyright and allows the licensee to transfer the handling of the lawsuit as well as any damages to the artist should a copyright infringement suit be filed against them. 

A Free sample Art Licensing Agreement

If you are working with companies that regularly license artwork, you will probably be provided with an art licensing agreement. In that case, we suggest you have an attorney review the agreement since it will likely heavily favor the licensee.  Many agreements are so full of legal language that can make the agreement difficult to understand, or the agreement may leave out key terms that can provide you with extra protection. In other cases, though, you will be providing the art licensing agreement, so below, we have provided an example that you can use with your clients. 

As mentioned earlier, the agreement not only provides legal protection but lays out the rules by which the artwork can be used.  As you can see, though, like any contract, this one also has its share of legal language, so we also recommend adding a summary of the basic terms to your invoice that explains, in colloquial and understandable language, what the images can and can’t be used for and how long the agreement will last. That will help avoid any misunderstandings while also providing you the legal protection should there be any problems.

In the agreement below, any parts marked in red are variables that should be changed to accommodate your business. This sample agreement is for general use and may not be appropriate for every situation. Please read it carefully and make changes as necessary, as not all sections may apply to your particular business. You may want to have an attorney review this agreement to ensure it is tailored to your business and the laws of your state.  A review of the agreement should cost a lot less than if the attorney were to create the agreement from scratch.

SAMPLE ART LICENSING AGREEMENT

This Artist Licensing Agreement (the “AGREEMENT”) is entered into effective this date, [DATE] between [ARTIST NAME] (“ARTIST”) and [CLIENT NAME] (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.

Scope of this Agreement. This Agreement applies to any image, graphics, digital assets, or digital images created or taken by Artist and delivered to the Client (collectively known as “IMAGES”). This Agreement governs the relationship between the parties and in no communication or other exchange, shall modify the terms of this Agreement unless agreed to in writing.

Rights: All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Artist. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Images only for the agreed upon terms as set forth in the Client Invoice and signed by both parties. Images used for any purpose not directly related outside of those terms must be with the express permission of Artist and may include the payment of additional fees, unless otherwise agreed to in writing. Images may contain copyright management information (CMI) at the discretion of the Artist in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes a violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Artist for any penalties and awards available under that statute.

Relationship of the Parties: The parties agree that Artist is an independent contractor and that neither Artist nor Artist’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Artist and the Images or any other deliverables prepared by Artist shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

Creation: The manner and method of creating any Image is solely at the discretion of Artist and the Client has no right to control Artist’s manner and method of performance under this Agreement. Artist will use his/her best efforts to: (a) ensure that the Images conform to Client’s specifications; and (b) submit all Images to Client in publishable quality, on or before the applicable deadlines.

Delivery: Artist may select delivery of photographs in JPEG, TIFF, PNG, or other standard formats at a resolution that Artist determines will be suitable for the Images as licensed. It is the Client’s responsibility to verify that the Images are suitable for reproduction and that if the Images are not deemed suitable, to notify the Artist within five (5) business days. Artist’s sole obligation will be to replace the Images at a suitable resolution but in no event will Artist be liable for poor reproduction quality, delays, or consequential damages. Unless otherwise specifically provided, Artist is not responsible for providing images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. Artist has no obligation to retain or archive any Images delivered to Client.

Fees: All fees and expenses payable under this agreement are required no later than ten (10) business days from the delivery of the Images and payable irrespective of whether Client makes actual use of the Images. If full payment has not been received within thirty (30) days all rights are revoked at Artist’s discretion. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Artist with written statement that all images have been removed and destroyed.

Cancellation: If Client cancellation of this Agreement prior to 1) Stated delivery date on the Client Invoice or 2) within one (1) month of this agreement, Client will pay any expenses incurred and a twenty-five (25)% cancellation fee. For Client cancellation within two (2) days of the delivery date, Client is responsible for one-hundred (100)% of the fee and any expenses incurred.

No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Artist, and Artist shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Artist.

Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.

Indemnification: Client will indemnify and defend Artist against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Images or materials furnished by Client. It is the Client’s responsibility to obtain the necessary model or property releases are ensure they are full effect and in force.

General Law/Arbitration: This Agreement sets forth the entire understanding of the parties, and supersedes all prior agreements between the parties. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of [STATE]. Any claim or litigation arising out of this Agreement or its performance may be commenced only in courts physically located in [COUNTY] [STATE], and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute, either party may request mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Severability: If one or more of the provisions in the Agreement is found invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected. Any such provisions will be revised as required to make them enforceable.

Waiver: No action of either party, other than in writing agreed to by the parties, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such action will not preclude further exercise of other rights or remedies in this Agreement.

IN WITNESS WHEREOF, the parties have caused this Artist Licensing Agreement to be duly executed as of the dates written below.

[Client Name]

By: __________________________________ Name: __________________________________

Title: __________________________________ Date: __________________________________

 

[Artist Name]

By: __________________________________ Name: __________________________________

Date: __________________________________

 

 

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