An Insider's Look at Art Licensing
How an Artist can Avoid Disaster
in Today's Print Market
by Lance J. Klass
President, Porterfield's Fine Art Licensing
If you're thinking of having your work reproduced as prints by a print publisher, don't expect a smooth and easy ride to fame and fortune. Instead, you may need a set of super shock absorbers because you may find a road full of potholes that are three feet deep.
Besides being shaken up emotionally and financially, you may lose more than your time and energy -- you might even lose your art.
In recent years I've heard dozens of horror stories from artists who have had terrible experiences in the print industry. In the worst cases artists have lost the right to reproduce their own art. Some artists discovered after the fact that their art had been sublicensed to other companies; they hadn't been notified, they hadn't signed a sublicensing agreement, they hadn't approved the product and they didn't even make any money from the new use of their art.
Other artists found themselves trapped for years in contracts with companies that seemed to have no interest in ever printing their art. The list of abuses goes on and on.
Why do these abuses happen? The print industry is coming out of a period of great affluence in which a lot of often shady characters made a lot of money. Now they're in an extremely competitive marketplace that is completely different and that requires a new breed of cat to survive. And some of those cats are predators.
Yes, there are good, solid, ethical people in print companies that treat their artists very well. But there are bad apples as well, people who will do whatever it takes to survive and prosper. Your rights are really their last concern.
How do you tell the difference? By their licensing agreements ye shall know them!
First, some basic rules:
Never Sell Your Rights Away
What are your rights? Here are two of them that you need to understand. Learn them and know them as they belong to you.
The most basic is your "copyright," which is your right of ownership of your art. Your copyright begins when you first put brush to canvas and it usually lasts for one hundred years, depending on when you created the art. You own the copyright to your art unless you sell or assign it in writing to someone else.
Next is your "reproduction right," which is your ability to reproduce or copy your original work of art. It comes along with your copyright just like night follows day. Very simply, it means that if you created a piece of art, then you have the sole right to reproduce it unless you specifically grant someone else that right in writing.
These are key rights that should be addressed in any license you might sign to allow someone to reproduce your art. What's a license? Very simply, it's a written, signed legal agreement which allows someone else to gain reproduction rights to your art for a specific purpose.
Under proper conditions, a print company will propose a written license to you that will give them the ability to reproduce specific pieces of your art on specific products (prints) for a specific period of time (and no longer) and for a specific payment or series of payments (royalties). This is the only type of print company you should consider allowing within ten miles of your art.
Other companies will attempt to gain as many of your rights in your art as possible, and pay you as little as they can to gain those rights. While this problem is probably worst in the card industry, where companies will try to purchase full copyright and reproduction rights -- forever -- for a few hundred dollars, it also exists throughout the print industry. And some print companies can be pretty tricky in how they go about gaining full rights to your art.
One common trick is to let you keep your copyright to the artwork, while giving them "full and exclusive reproduction rights" to your art. Don't be fooled! This makes your copyright worthless because you won't even be able to reproduce your own art. For all practical purposes it will belong to the print company, and not to you, for the term of the agreement. If the agreement doesn't have a clear termination date, that could mean that you've basically lost control of your art -- forever.
Never Allow Sublicensing Without Your Permission
"Sublicensing" is a term which means that a licensee (in this case, the print company) can turn around and license your art to other companies to use on other products. Many print companies in this very competitive print market have found that they can actually make more net income by licensing "their" art to other companies in other fields than they can by publishing and selling prints with your art.
The desire to have a body of art that they can license out to other companies motivates some unscrupulous print companies to sign up artists -- and gain full reproduction rights and sublicensing rights to their art -- just for the purpose of having art to license elsewhere.
Yes, they may run some prints that they may or may not promote and may or may not sell, but what they're really after is your art, what you've created over the years and what you may create in the future as well.
If you've given them "full reproduction rights" for an unspecified period of time, then they've won the battle as soon as you signed the contract. If they have a specific clause in the contract that gives them vague or unspecific "sublicensing rights", watch out. You may find yourself working with a "print" company that is interested more in licensing your art than in publishing it.
Ever wonder how some of the biggest print publishers in America got to be large art licensors with huge bodies of art? Look no further for companies that have convinced artists to allow them either full reproduction rights or the ability to sublicense their art, often for unlimited periods of time.
Is sublicensing always a bad thing? Not at all, if you're working with an ethical company that lets you review agreements and approve each and every one of them and that works extra hard to protect your rights every step of the way. That can lead to extra income through the creation of licenses that you're proud of. But remember that as an artist, you need to be in control, not a print company or some unknown licensee.
How to Read a Licensing Agreement:
1) read every sentence - you won't know what it says until you have read what it says, word by word. Don't pass that responsibility off to a lawyer who may know as much about art licensing agreements as the fellow on the bus.
2) understand every sentence - if sentences are vague or don't make sense, don't just pass them by. Make certain that the language is cleared up to your satisfaction, and written in plain English, not in legalese. Remember that you're responsible for what's in an agreement if you sign it so make certain that you understand completely just what it is that you're signing.
3) watch for dangerous words and phrases - if you see the terms "reproduction rights," "sublicensing rights," or "assignment" in your licensing agreement then be very careful that you know just what's going on before you sign, or you may be giving away your own basic rights to your art.
4) ask questions, and get the answers in writing - unsure of what something means? Then ask to have it clarified, in writing, before signing an agreement.
5) don't accept verbal assurances - they're no substitute for what is written in black and white in a contract that you're about to sign. A licensee may tell you one thing but have something completely different in the contract. Always rely on what's on paper.
6) have a clear termination date written in the contract - Make sure that the contract lasts for a specific period of time and that it doesn't automatically renew. That way, if the print company wants to continue the relationship, they'll need to come back to you -- and if you're not happy with the experience, don't be afraid to say goodbye.
7) be able to say "goodbye" early if they just sit on your art - Make sure the contract has in it a sentence which says that the agreement automatically comes to an end if the print company doesn't "bring to market" (produce and sell) prints of your art within a certain period of time, let's say six months. That's plenty of time for them to publish prints unless they've stuck your art in a drawer and forgotten about it (this does happen).
So there you have some
basics. Learn them, use them, and go forth into the print market and find
excellent companies -- yes, they do exist -- to reproduce your art on good
quality prints, pay you a decent royalty, and treat you well.
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Lance J. Klass is President of Porterfield's Fine Art Licensing, with many years of experience in the licensing field and expertise in promoting the works of artists seeking to increase their income and establish their names in the world of commercial, licensed art.
If you're interested in having Porterfield's review your portfolio, please email us first.
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