An understanding of the rudiments of copyright law is extremely important to any professional artist, whether selling original work or reproduction rights.
It is worth reiterating here that copyright can only be exploited if you have access to high-quality digital files or transparencies from which reproductions can be made. Above all, don’t part with sold works until these have been photographed.
It is important to know that copyright nearly always rests with the artist, regardless of who owns the artwork. There are exceptions to this rule, such as work that has been specifically commissioned or completed during employment, in which case copyright stays with the commissioner or employer. Freelance artists working for a range of companies should keep this in mind.
If you sell a picture through a gallery to a private client, neither the gallery nor the final owner of the work has the right to reproduce it, e.g. as a greetings card. A painting and the copyright in that painting are two entirely separate commercial entities. With some exceptions, such as China, copyright is now fairly standard around the world: it lasts for the artist’s lifetime and for seventy years after their death. So long as works are in copyright anyone wishing to reproduce them has to seek the copyright holder’s permission. Artists can, however, sell their copyright. Sales of copyright must be put in writing; otherwise sales are invalid and cannot be legally enforced.
Galleries and publishers are generally entitled to reproduce an artist’s work in order to help sell it – through advertisements, catalogues, JPEGs for emailing to clients and uploading onto their website – but they are not entitled to profit from reproductions of a work.
Owners of copyright can sell reproduction rights, or a licence to print, for specific projects while still retaining copyright. For example, an artist can sell the right to reproduce a picture on a run of 20,000 calendars or a dinnerware service while retaining overall copyright.
This allows them to sell further licences, whereas once copyright is sold the artist has no say in how that image is used. Licensees might, quite reasonably, want to prevent licensors from selling licences to their direct competitors (e.g., other card publishers), so they might want to include restrictive clauses in the contract. They might, for example, want to state that the licensor agrees not to sell a licence to another card publisher, but is free to sell licences into other markets.
You need to consider any restrictive clauses carefully; try to assess whether the proposed restriction is likely to deny you any future revenue.
The licensee is the party who has bought the licence, or permission to print, while the licensor is the person who has sold it (generally the artist).
Selling permission to print
You need to be 100% clear what type of permission to print you have sold, and what restrictions on future commercial activity the sale might entail. If you do not understand the terminology used in the contract or agreement, you must not be frightened to ask for an explanation of its implications.
There are three common categories of sale for copyright and reproduction rights:
- Artists sell copyright outright. They have no control over the ways in which images are subsequently used, and the new owner of the copyright is free to sell licences as they see fit and to retain all the profits. (Sometimes, however, agreement is reached that copyright will be sold but royalties will still be paid to the artist. See below.)
- Artists sell copyright for a specific limited purpose; neither artist nor publisher can use the image for any other purpose. For example, if the image is published as a limited-edition print it can never be used for anything else, either by the artist or the print publisher.
- Artists sell reproduction rights, or a licence, for a specific limited purpose; the artist retains copyright and can continue to profit from it. For example, the artist sells the image for use on a set of table mats, but can then go on to sell it for other uses.
It is essential that you are clear whether or not you can sell licences in the future, whether you have signed the right to do this over to someone else or whether neither party can do so (e.g., for most limited editions).
It is an ethical norm (though not law at the time of writing) in the fine art reproduction industry that images which have been used for limited-edition prints will not be used for any other purpose or reprint. This commitment may be reinforced by a statement at the bottom of the print or on a certificate of authenticity. This needs to be clearly addressed when agreeing a contract with a publisher of limited-edition prints. Consider carefully the detrimental effect to your reputation if work published as a limited edition is seen by the public in other forms. You need to feel confident that your contract covers this possible outcome.
By contrast, it is ethically acceptable for images published as open editions to be published again as often as desired and in any medium (e.g., as greetings cards, on ceramics and stationery). If the artist sells the copyright, then the new copyright owner stands to profit exclusively from such sales. However, there are exceptions: some publishers insist on owning copyright in order to have control over how the image is used, but will include a clause in the contract stating a percentage that the artist will receive from sales of secondary rights. If the publisher does allow you a percentage of secondary rights, it can be to your advantage to sell the copyright, as the publisher might be better placed than you are to sell licences.
On the negative side, it could be galling to see a publisher profiting from an image over many years when all you received was a small one-off fee for your copyright 10 years earlier. One way to work out the value you should set on your copyright is to look at your artwork and imagine what you might earn from it if you were to retain the copyright; i.e., you must try to estimate a future income. You should also consider the amount of time that went into producing the pictures; i.e., how many ‘copyrights’ you could produce in a year.
Finally, if your image (or a detail from it) is to be incorporated into an overall design by the licensee, then this new design may be the copyright of the licensee. You need discuss with the licensee how this might affect your own future use of your own copyright.
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