Artist: Jim CHen       Artwork: Morning at Newnes       License This artwork

Artists are human beings, so when they try to fathom the depths of a licensing agreement, they would normally l come  to  see me to help decipher the proposals that come their way.

As with all agreements, there any certain ‘industry keywords’ that put the artist at a disadvantage such as buying their art outright, or licensing their art on less than great terms.

I receive emails from artists who have agreements in front of them and are flummoxed by the language. Bottom line: they’ve seen something that casts doubt on the agreement.

These agreements are from publishers to art agents and everything and everyone in between that has a stake in the art industry.

I have read enough agreements to draft the following keywords that should sound alarm bells and make artists seek advice before signing their art and copyright away forever.

Assignment: There are two elements that companies want assigned in a licensing agreement, and both are bad news.

The first is the copyright itself. Like most artists, you may not realize your “copyright rights” begin as soon as you put brush to canvas or pen to paper. It’s yours, totally owned by you under your copyright whether you register it with the Copyright Office, or not. It’s yours for your whole life plus at least another 75 years.

As a part of your legal right to own and control the copyright rights to your art, you have the right to control how your art is reproduced or copied. Of course it’s a bit silly to explain it that way, but many artists don’t realize that’s what ‘copyright’ means – the right to copy.

In licensing, we call that area of rights “reproduction rights” – the right to reproduce art and the right to control the reproduction of your art.

So when you license your art, you’re not licensing the copyright to your art BUT the right to reproduce your art, (the reproduction rights) for very specific purposes and under very specific terms.

How to lose control of your art

Here are the only ways you can lose the original copyright to your work of art:

a) agree in writing that you’re creating the work of art as a “work for hire” as part of your employment with a company;

b) your descendants let the clock run out 100 or so years after you pass away, at which time the copyright enters the public domain and anyone can reproduce your art;

c) fail to register your copyrights with a Copyright Office for protection and, if someone else uses the artwithout your permission, fail to defend your copyrights at that time;

d) assign (there’s the keyword) the copyright to someone else in writing. That’s called an assignment of all rights, and the someone else can either be a person or a corporate entity.

When you see “assignment”, make certain you’re not assigning copyright or all reproduction rights to your artwork as part of the agreement. If you do, it’s lost to you forever and other people will control the reproduction rights to your art, and you’ll have to ask their permission to reproduce the art you created. Crazy – but true.

An artist sent me an agreement from a licensing agency that asked the artist to assign ALL copyrights of her artwork to them. Can you believe that? She was being asked to give up her copyrights, just on the chance they might be able to find some licenses for her work.

This might be laughable, if it weren’t so tragic – and if the agency didn’t have so many artists who apparently have already signed this same agreement. The simple solution: Never assign copyright rights to your art to anyone for any reason

The other type of assignment to watch out for is the assignment of the agreement itself. This type of assignment comes toward the end of a contract.

You may find a paragraph saying something like “The rights and obligations of Publisher pursuant to this Agreement are freely assignable and transferable by Publisher without consent of Artist.” Or words to that effect.

This is the second type of assignment you have to watch out for – the assignment of the publisher’s, company’s or licensee’s rights under the agreement.

Why watch out for it? Because this very nice company you’re signing on with might go bankrupt and assign its rights to your art to some other company that isn’t quite so nice.

The company you’ve licensed your art to can be purchased by a predatory company that might not treat you well. And you might find you’re dealing with some predatory people who could care less about your rights, particularly when they get in the way of their profits.

Solution: Don’t allow the other party to have the right to assign their rights or position in the agreement or relationship with you to anyone else without your prior written approval.

Work for hire: This means that you are being paid to create something for a company who is acting as your employer and you as their employee. That means that when the work is finished, it doesn’t belong to you – but to your “employer” – and with the original piece of art have gone your copyright rights, your reproduction rights and very often the use of your name (your “publicity rights”) as well.

It’s OK to do works for hire. Illustrators do them all the time and artists who work for design studios understand they don’t own any of the work they create. But know what you’re getting into before you take this route as your artistic creations won’t belong to you.

Copyright: This is the jewel predatory companies want. If they own the copyright to your art, then forever after every single use of the art is completely free as they, not you, own the art.

I’m always extra cautious whenever I see the word “copyright” in an agreement. It’s a warning you should read closely to ensure there’s no implicit or explicit transfer of copyright.

The only time it should be used in an agreement is in a sentence which states every product is produced using your art must carry your copyright notice in the following format: “(c) your name. All rights reserved.”

Watch for other suspect keywords, including indemnification, automatically, renewal, and conflict.