Posted by Zack Clothier on February 7, 2011 at 2:56 PM
I have a couple of questions regarding a contract I recently received from a company that licenses artwork for fine art posters, limited edition giclees for interior design projects and home and office decor. I was wondering if anyone here could clarify a few things before I contacted the company and made a fool out of myself for not understanding. The contract states:
"The Artist, hereby agrees to appoint The Agent as its exlusive worldwide Licensing Agent for the purpose of introducing, arranging and negotiating licensing agreements for publishing and merchandising rights to the Artist's work. Exceptions: advertising and book publishing."
The company has chosen 30 or so images from my website that it would like to take on to present to its clients. Does this mean that only the images they've chosen to represent (and ones sent to them in the future) would be covered by this exclusivity, or my entire collection of images even if they decide never to take on any more of my work for the next two years (the term of the contract)? I don't want to lose out on future sales because I cannot license the work that they have not chosen to represent. Does this make sense? I understand that they would want exlusivity of the images they have chosen to represent and any that I send to them in the future, but if they only take on 30 images out of my whole collection that seems unfair if I cannot license the work they have not taken on somewhere else.
One more question, it states that this exclusivity has exceptions:
"advertising and book publishing", can I still freely distribute my work for publication in magazines, etc?
I would like to sound as professional as possible with my reply to this company so any thoughts or suggestions would be appreciated! Thanks
Posted by Lon Overacker on February 7, 2011 at 5:30 PM
Zack,
Hopefully someone with more direct experience will chime in, but here's my take on it.
"Artist's Work" I believe pertains only to the work/images you've submitted to them, NOT your entire collection. That part is pretty standard.
"exclusive worldwide Licensing Agent" basically means they have the exclusive rights to use your submitted work and you are excluded from selling your work except for "advertising and book publishing" as stated. In other words, if they use your image to make posters, calenders, coffee mugs, mouse pads or WHATEVER, they you CANNOT market your own image for posters, calenders, coffee mugs or mouse pads. You would be able to publish your own book or have an image published in a book.
I believe, but I'm not sure, that you could continue to sell your work as prints. The crux of that part of the agreement is they are preventing you from competing against them in bidding licensing agreements of your work, for the term. In other words, say they went to company to order 10,000 mouse pads using your image. The agreement prevents you from bidding or undercutting them by bidding directly to the same company.
That's what I'm thinking. Again, I hope someone else can expand or correct me if I'm wrong or missing something.
Lon
Posted by Rob Renner on February 8, 2011 at 9:54 AM
Zack,
I agree with Lon's assessment. For you the key phrase is "Artist's work." Many contracts will have a definitions section that defines the exact parameters of this phrase. Not sure how complex your specific contract is, but in my experience phrases like this are used in other areas of the contract and the context can help shed light the true meaning. If you cannot find a clear definition in the contract of what is or is not considered Artist's work you can also ask The Agent what they interpret it to mean. If their definition is agreeable to you ask them to include a clarifying/defining clause in the contract.
Posted by Zack Clothier on February 17, 2011 at 7:46 PM
Thanks guys, your comments have been very helpful!
Discussion
3 replies"The Artist, hereby agrees to appoint The Agent as its exlusive worldwide Licensing Agent for the purpose of introducing, arranging and negotiating licensing agreements for publishing and merchandising rights to the Artist's work. Exceptions: advertising and book publishing."
The company has chosen 30 or so images from my website that it would like to take on to present to its clients. Does this mean that only the images they've chosen to represent (and ones sent to them in the future) would be covered by this exclusivity, or my entire collection of images even if they decide never to take on any more of my work for the next two years (the term of the contract)? I don't want to lose out on future sales because I cannot license the work that they have not chosen to represent. Does this make sense? I understand that they would want exlusivity of the images they have chosen to represent and any that I send to them in the future, but if they only take on 30 images out of my whole collection that seems unfair if I cannot license the work they have not taken on somewhere else.
One more question, it states that this exclusivity has exceptions:
"advertising and book publishing", can I still freely distribute my work for publication in magazines, etc?
I would like to sound as professional as possible with my reply to this company so any thoughts or suggestions would be appreciated! Thanks
Hopefully someone with more direct experience will chime in, but here's my take on it.
"Artist's Work" I believe pertains only to the work/images you've submitted to them, NOT your entire collection. That part is pretty standard.
"exclusive worldwide Licensing Agent" basically means they have the exclusive rights to use your submitted work and you are excluded from selling your work except for "advertising and book publishing" as stated. In other words, if they use your image to make posters, calenders, coffee mugs, mouse pads or WHATEVER, they you CANNOT market your own image for posters, calenders, coffee mugs or mouse pads. You would be able to publish your own book or have an image published in a book.
I believe, but I'm not sure, that you could continue to sell your work as prints. The crux of that part of the agreement is they are preventing you from competing against them in bidding licensing agreements of your work, for the term. In other words, say they went to company to order 10,000 mouse pads using your image. The agreement prevents you from bidding or undercutting them by bidding directly to the same company.
That's what I'm thinking. Again, I hope someone else can expand or correct me if I'm wrong or missing something.
Lon
I agree with Lon's assessment. For you the key phrase is "Artist's work." Many contracts will have a definitions section that defines the exact parameters of this phrase. Not sure how complex your specific contract is, but in my experience phrases like this are used in other areas of the contract and the context can help shed light the true meaning. If you cannot find a clear definition in the contract of what is or is not considered Artist's work you can also ask The Agent what they interpret it to mean. If their definition is agreeable to you ask them to include a clarifying/defining clause in the contract.