art licensing

8/2/2019 Art Licensing

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ART LICENSINGART LICENSING

"Nature alone is antique and the oldest art a mushroom.

-Thomas Carlyle


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MEET VIVIANMAIER

1926 2009

Found Amateur

Photographer discovered and

championed by JohnMaloof

who purchased her

photographs and undeveloped

film at an auction in 2007.Some known and unknown

others are also in possession of

some of her work.

100,000 negatives. 20-30k still

undeveloped in rolls.

In 2009, Vivian died intestate

with no apparent heirs.

See: http:/vivianmaier.blogspot.com/

????, used without permission.


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WHAT IS ART LICENSING?

Simply, the grant of certain rights

from the [copyright] owner of an artobject (the Licensor) to a third party

(the Licensee).

Practically speaking, there are no

limits as to the rights conveyed or

the applied use.


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MANY TYPES OF ART LICENSINGMANY TYPES OF ART LICENSINGCOMMERCIAL / EDUCATIONAL / PERSONAL USE

Digital Library

MERCHANDISING

Artist to design house / manufacturer

Museum

OTHER

DerivativeWorks


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EXCLUSIVE RIGHTS

The right to reproduce.

The right to prepare derivative

works.

The right to distribute copies.

The right to perform.

The right to display.

To perform the work publiclyby means of a digital audio

transmission.


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The U.S. Copyright Act defines "derivative work in 17 U.S.C. 101:

A derivative work is a work based upon one or more pre-existing works, such

as a translation, musical arrangement, dramatization, fictionalization, motion

picture version, sound recording, art reproduction, abridgment, condensation,

or any other form in which a work may be recast, transformed, or adapted. A

work consisting of editorial revisions, annotations, elaborations, or other

modifications which, as a whole, represent an original work of authorship, is a

derivative work.

U.S. COPYRIGHT OFFICE CIRCULAR 14:

A typical example of a derivative work received for registration in the

Copyright Office is one that is primarily a new work but incorporates some

previously published material. This previously published material makes the

work a derivative work under the copyright law. To be copyrightable, a

derivative work must be different enough from the original to be regarded as a"new work" or must contain a substantial amount of new material. Making

minor changes or additions of little substance to a preexisting work will not

qualify the work as a new version for copyright purposes. The new material

must be original and copyrightable in itself. Titles, short phrases, and format,

for example, are not copyrightable.


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LICENSINGWORKS FOUND INMUSEUM COLLECTIONS

Who owns the reproduction or other rights necessary for the license?

1978

1923

Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

> Slavish reproduction not copyrightable.

Q: Can a museum then demand a license for works it holds that are in the

public domain?


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A: Yes.

Why? 1) Access to the work.

2) Value based on TM rights associated with the museumrather than the underlying work itself.


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KEY ELEMENTS IN ART LICENSING AGREEMENTS

Similar to standard merchandising

agreements:

The right to use the Licensors name in

connection with the licensed goods.

Royalties and guarantees and advances in

connection therewith.

Manufacturing Costs and Accounting

Approval as to quality of goods.

Termination w/cure provisions.

Sell-off rights.

Forum and ARD vs. Litigation


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KEY ELEMENTS IN ART LICENSING AGREEMENTS, Cont.

Copyright

Who is responsible for

determining existing rights?

Can copyright be had in the

resulting work, and who owns

it?

Limitation of Rights Exclusive or non-Exclusive?

Indemnificaiton

Runs both ways:

Licensor indemnifies licensee

against copyright and TMviolations, while licensee

indemnifies licensor for claims

related to the goods produced

as a result of the license.


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Q & A / Discussion

art licensing

Documents