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Key issues with licensing artwork

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

There is art for art's sake, and there is art that has marketable value. If you are a creator with a desire to monetize your creations, finding ways to do it and protect your intellectual property rights at the same time can be frustrating. Navigating the choppy waters of copyright law is easier with an experienced pilot, a skilled IP attorney, at the wheel.

One logical way for artists to make money from their work is by leveraging their copyright through licensing. Sales can generate royalties. But what is a good royalty rate? How will payments be made? What will it take to enforce the terms of the agreement? An attorney can help answer these questions, and what follows is some basic information.

Licensing fundamentals

The premise of licensing is that you have a work of literature, art, music - maybe software - and someone else thinks they can sell it. So, licensing rule number one is: Only license your work to someone you trust to do it properly. Cousin Vinnie might have big ideas. Does he have the necessary experience? You might research your potential licensee by speaking with licensors who've preceded you.

Be sure you aren't giving up more than you think. To maintain control, you need to maintain ownership of the copyright. If your proposed agreement has you assigning your artwork over to someone else, that means you are giving them full ownership. A license to manufacture and sell means the licensee only has those rights subject to the other terms you dictate.

Make sure the license is limited in time. By setting a date or terms under which the license terminates, you ensure that any rights granted revert to you. You can also dictate conditions, e.g., the licensee has no rights at all unless you are paid whenever money is due you.

Also consider ways you don't want your work used, and make sure there's language to that effect in the agreement. You can also control how sublicensing of your work is handled or disallow it altogether.

Finally, protect yourself. Include a clause in the agreement that shields you from incurring damages if your licensee's use of the art triggers lawsuits other than breach of your warranty of ownership.

Licensing is a broad field. It can be hard to know where the bases are and how to be sure they are covered without legal assistance.

Source: FindLaw, "Licensing Artwork: Key Issues," accessed Sept. 20, 2017

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