Copyright in contracts made by an artist

Copyright in contracts made by an artist

‘The Artist reserves copyright in all works of art. The Gallery may, for the sole purpose of promoting the works of art, photograph them for inclusion in a catalogue or other promotional materials so long as, in each instance, the Artist is credited as the creator of the work and the holder of the copyright. Further, each bill of sale for a work of art shall bear the following legend:

All rights belonging to the holder of the copyright shall remain with the Artist.’

Copyright gives the creator of a work an exclusive right to the use of his or her work. However, the creator may, at his or her discretion, transfer the rights under the copyright either fully or in part.

The Artists’ Association of Finland has compiled contract templates (in Finnish) on its Web site with clauses pertaining also to copyrights of works. You may utilise the individual clauses in the templates when making contracts. An artist should compare the terms on copyright included in the contract drafts provided by the buyer/broker/commissioner or gallery with the copyright clauses in the contract templates found on the Web site of the Artists’ Association of Finland. If the contract proposed includes provisions differing from those in the templates, the artist should ask for clarification of why provisions diverging from the terms of the Artists’ Association of Finland are part of the contract.

Contract provisions on copyright

For example, the following copyright provision might be used:

‘The artist will retain all copyrights to the work, including access rights and the right to retail remuneration. Copyrighted use of the work must be separately agreed upon with the artist / Kuvasto ry (the Finnish copyright society).’

The above provision confirms the legal copyright of the creator in its entirety.

In connection with the ART360 project, general contract terms were published for the purpose of being appended to contracts dealing with individual works of art. The ART360 contract terms can be found on the Artists’ Association of Finland Web site. They include a longer provision on copyrights:

‘All copyrights that have not been separately assigned via a contract remain with the artist, and this will not limit any rights that belong to the creator in accordance with copyright law. The name of the artist and the work must always be mentioned in line with good practice when photographs of the work are used. Use of the work with the intent to profit must always be agreed upon with Kuvasto ry or the artist.

The other party to the contract does not obtain the right to use the work in a manner that infringes on the creator’s moral rights. If permission has been granted via a contract for reproduction of a work, the name of the creator and work must always be mentioned in the reproduction.

The artist is responsible for ensuring that no work or part thereof violates copyrights of a third party or any other right pursuant to copyright legislation or other intellectual property rights. In addition, the artist assures that the artist has exclusive rights to the works and/or related works that this contract is intended to cover, that no other rights or claims are directed toward the work or related rights, and that agreeing on the work or related rights does not require consent from any other party.’

This standard-form contract provision is not for the purpose of making changes to copyrights that belong to the creator by law; any assignment of copyright must be separately agreed upon in the relevant contract.

In practice, the contract provision above confirms the rights falling within the core area of copyright: the creator’s exclusive right, the right to be acknowledged as creator (the name of the creator must be mentioned), the licensed nature of use of the work, and the obligation to respect copyrights belonging to any third parties.

Assignment of copyright via contract

When the artist is negotiating contracts with art galleries or those buying/commissioning works of art, the copyrighted use of the work is agreed upon at the same time. In sales or commissioning contracts for a work of art, the artist should always pay special attention to any terms on the assigning of copyright and assess the concrete situations that could arise during the lifespan of the work of art.

Especially with public works of art, contracts sometimes will include a provision on the lifespan of a work. A work of art can have a fixed term to start with. A provision on lifespan will typically include a limitation on the artist’s copyrights if, after a certain time period, the work may be removed or dismantled without copyright terms being contrary to this. The artist should assess the extent to which he or she wants to participate in deciding what will happen to a work in changed conditions. Especially in cases of works on public display, the sale or commissioning contract may include a stipulation on the transfer or dismantling of the work of art:

‘The work of art will be placed in a location agreed upon in advance. Without any copyright provisions imposing constraints, the commissioner of a work has the right to move, maintain, or repair a work in response to technical construction-related factors or for equivalent reasons.’

Contracts entered into with galleries usually include an assignment of copyright as presented below, with regard to advertising and communications related to the works on display in the gallery:

‘The gallery has the right to photograph the works of art and make photographs accessible to the public via the gallery’s Web site for purposes of sales and marketing during the course of the exhibition.’

Without such a contract provision, the gallery would not have the right, for example, to use photographs taken of the work on the gallery’s Web site. A work of art belonging to a collection, to be put on display, or to be offered for sale can, however, be photographed for a catalogue or for communication purposes related to the exhibition or sales. However, it is permissible to produce a collection or exhibition catalogue without an artist’s permission and without remuneration only when the catalogue is to be printed in traditional form on paper. A digital catalogue always requires permission from the creator.

With regard to works displayed at galleries and museums, the artist should consider his or her take on photographing the works and publishing such photographs via social-media services (such as Instagram or Facebook) in advance. Publishing photographs of works of art via social media belong to the sphere of the creator’s exclusive right and, therefore, is not allowed without permission from the creator. However, it is possible, if the artist so desires, to include a provision in the contract with the gallerist whereby the artist gives consent for social-media publication of photographs taken by exhibition guests and thereby grants the gallerist the authority to inform that publication of photographs of the works is allowed. A provision such as this might be used:

‘The artist gives his or her consent for publication via social media of photographs taken of works of art on display at the gallery, provided that the publication occurs for a reason other than intent to profit. The gallerist will convey information on the artist’s consent to the exhibition guests.’

Limits to which rights can be assigned

Not all the rights included in copyright can be assigned by the artist. In general, fully assigning the rights is possible only for the economic rights related to the copyright. It is not possible to completely assign the rights falling under moral rights (the right to be acknowledged as creator and the right to respect). Also, the visual artist’s right to resale remuneration cannot be assigned.

A registered member of the association Kuvasto ry should note that such economic rights falling under copyright that he or she has transferred to Kuvasto ry’s control should not be assigned to anyone. Kuvasto could then end up collecting copyright remuneration and paying the creator for rights that he or she has assigned to someone else. This may lead to inconvenient practical situations.

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