Lesson 2: Understanding Contracts

Lesson 2: Understanding Contracts
by Terri Hopkin (2005©Terri Hopkin, Cathy Poage)

We all now know and understand that every painting, every print, every piece of artwork that you have ever seen has been painted or created by some talented artist. Every photograph that you have viewed has been snapped by someone with a camera, and the copyright of each individual piece of work is originally OWNED by the artist or the photographer. It is that simple.

Copyright is the artist’s right to say this is “mine”, I own it and I decide how it can and cannot be used. It is their property. Copyright is automatic, it does not have to be filed for it, it does not need approval – if you paint a picture or snap a photograph before the ink is dry you own the copyright!

What we do need to remember, and what sometimes seems to be overlooked, is that artists paint to earn a living. It is their trade; it is the way they feed their families. They sell and display their work through various mediums, but the bottom line is, if you are looking at their paintings, either in an online gallery, a store, or perhaps even in a gift shop, it is there to be sold, just like all other merchandise.

However, as soon as the artist or photographer decides to sell their work, or even give others permission to use their work they are entering into the field of Contract Law. The contracts signed, the decisions made, all effect what they can and cannot do with their copyrights. This first decision is known as “First Sale Doctrine” in some parts of the world it is known simply as “exhaustion of rights”

So let us go back a stage and look a bit more closely at how the artist actually works, let us look a bit more closely at how Copyright Laws and Contract Laws affect them in their every day business world.

Today, you are the Artist!

Let’s assume that you are Joe Designer - the artist, you have just finished your masterpiece, what will you do next? What can you do with your finished painting? There are many examples we could use, but let us concentrate on these for just now:-.

1 - You could sell the "Original Painting” at a premium price, the exclusivity of a unique painting from a recognized artist always attracts top dollar.

2 - You could opt instead to sell the "Original Painting" AND have a "Limited Edition" collection of prints produced, this would mean that the original would not attract as much money as before, because it will have lost some of it's exclusivity, but you could add your signature to the prints and make additional monies from selling "Signed, Limited Edition Prints" too.

3 - You could go one stage further; you could sell the "Original Painting", sell "Signed Limited Edition Prints” and also sell regular, unsigned “Prints" too.

As we are concentrating in understanding the artist and understanding copyrights and contracts, let's imagine you have three buyers for your work.

Buyer 1 - Jane, buys the "Original Painting";

Buyer 2 - David, buys print number 9 of 100 from your "Signed Limited Edition Print" collection;

Buyer 3 – Mary, buys the regular, unsigned Print.

When you sell your art, you sell the physical image; the law assumes that you retain the intellectual rights and the copyrights to your work. No-one can copy, sell copies or even give away copies of your work to a third party. If anyone did, it would be a Breach of Copyright and would be punishable under the law. It doesn't matter if you live in the US, Australia, France, England or most other countries in the world, the same laws apply.

But what about the buyer’s rights, does this mean they cannot re-sell the paintings? Of course they can sell the original and the prints, they can sell them in any way they choose - auction, advert, garage sale, etc., and they can even give them away. What they cannot do is duplicate the original image they bought, and then sell multiples of the art. That is theft, plain and simple.

Contracts

So lets move on a bit, and look at how Contract Laws and how they affect the Copyright Laws.

Imagine a major Greeting Cards manufacturer contacts you, they have seen your prints (the same prints you sold to Jane, David & Mary) and now they want to purchase the rights to the image, they want to use it on a new range of Greeting Cards, Jigsaws and Calendars, and the deal looks very lucrative..... But can you legally sell your image in this way? Are you free to negotiate this deal; after all you still own the copyright?

The simple answer is it all depends on the original contracts you entered into when you sold the first paintings and prints.

*           Did you promise Jane, the buyer of the "Original Painting" that it was unique, an original painting, and one that you would not be repeating or selling prints from?

*           Did you promise David that there would be, for example only one hundred “Signed Limited Edition Prints” sold?

*           Or perhaps you made no promises to Jane, David or Mary; instead you sold your work with the simple disclaimer - All Rights Reserved?

All of these factors come into play in establishing the law concerning your pre-existing contracts.

Assuming Jane, David and Mary each bought your art as sold; and you made no promises about what you intended to do with the image in the future, in fact you did add the disclaimer – All Rights Reserved, then you would be entitled to enter into business discussions with the Greeting Cards Manufacturer.

However, if we assume that you only sold the original masterpiece to Jane, and you sold it as a one off, original, you would NOT be able to enter into a business deal with the Greetings Card Manufacturer. Yes you still own the copyright, but when you sold to Jane at a premium price, your contract was for an original painting. You would have to go back to Jane and see if she is prepared to enter into a business discussion with you.

In law this is known as the “First Sale Doctrine” in some parts of the world it is known simply as “exhaustion of rights” It protects both the artist and the buyer equally.

Photography too

Now imagine you are a professional photographer, Mrs. Brown wants to commission you to photograph her newborn baby. A gorgeous little girl with an adorable little face, she wants the image as a special keepsake and she also wants a few prints made so she can give them to the baby's grandparents, aunts and uncles.

Who will own the copyright to the photographs? The answer here is that you, the photographer, would automatically own the copyright to the image and potential income from repeat prints.

When Mrs. Brown became your client, you entered into a business contract with her, but what conditions did your contract stipulate? It is not uncommon for members of the public and companies to stipulate to photographers that they wish to commission not only the photographs but they also wish ownership of the copyright too. It is all down to the small print of the contract and legally that contract will over rule any rights to copyright.

Now imagine for a moment that the same Greeting Cards Manufacturer wants to use the images of the baby in their production runs. When you took the photographs of the baby you retained the copyrights to the images, Mrs. Brown never thought to ask for ownership. Are you legally in a position to enter into a contract, after all you do own copyright?

The simple answer is no, not without reaching an agreement with Mrs. Brown. In this instance while you may very well hold the copyright, but Privacy Laws would prevent you from entering an agreement with the Greetings Card Manufacturers. Mrs. Brown and her baby are entitled to their privacy and you would first need to reach an agreement with Mrs. Brown before any deal with the Greetings Card Manufacturer could be done. Mrs. Brown would be well within her rights to say no, after all not every mother wants her baby's image sold.

As the photographer you can legally prevent Mrs. Brown from duplicating your photographs herself, for her to do so would be a breach of copyright and would be seen by the law as depriving you, the photographer, of potential income from the extra prints.

As the photographer, you are permitted to add to your resume and portfolio a copy of the image as an example of work you have done.

What about animals?

Before we leave this example, let’s assume Mrs. Brown wants a photograph of her favorite pet dog, do the same laws apply?

Privacy Laws do not extend to animals, but once again it would be the detail of the contract, not the copyright that would dictate what could and could not be done with the photograph of Mrs. Brown’s dog.

Recap

Well, that is the end of this lesson. I hope you found it informative, and I hope you enjoyed being both an artist and a photographer for a short time. Owning the copyright does not necessarily mean that the Artist or Photographer can always do what he wants with the images. All too often it is Contract Laws and Privacy Laws that restrict the uses of his work.