Thursday, November 26, 2015
I wanted to do a short post on how GRATEFUL I am for all of you! You all make this blog work by visiting, sharing, following, commenting, guest posting and more! A BIG Happy Thanksgiving for those of you who celebrate this holiday. I heard someone say on the radio today that we should think of and write down everyday what we are thankful for. Great advice.
Hope all of you and your families are well,
Friday, November 20, 2015
MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco. He is also Co-President of California Lawyers for the Arts. www.calawyersforthearts.org Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!
Last month I wrote about the way I look to protect an Artist client’s rights in her image preemptively by making the license subject to mutually agreeable minimum annual earnings. That is a way to get back rights to images being used unproductively in the relatively short-term. (Last month's bLAWg)
However, the Copyright Act, Sections 203 and 304(c)(3), also addresses the return of copyright interests to Artist in the long-term. In short, for works originally published before January 1,1978, an Artist or their heirs can reclaim her copyright interest after 56 years. For works published since January 1, 1978, the right to claim a reversion of copyright is available after 35 years.
(See http://copyright.gov/title17/92chap2.pdf and http://copyright.gov/title17/92chap3.pdf
While most of my transactional work over the last 30 years involves works created and licensed after 1977, I have had occasion to advise certain composers and rock and roll poster artists on the way to recover the rights to their works that were exclusively in the hands of record labels and publishers for as long as 56 years beginning in the 1950s and 1960s.
For works published from 1978 on, the 35 year reversion right became operative as of 2013. This year, works licensed in 1980 became subject to reversion. Next year will open the door for recovery of works licensed in 1981, and on and on. Each calendar year, thousands of copyrights will be available to be reclaimed by their Artist authors or their heirs should they choose to avail themselves of this right.
It should be clear, however, this right only applies to copyrighted works that were licensed (exclusively or non-exclusively) or “assigned” (sold) in the first instance, not those that were created by an employee for her employer or as bona fide works-made-for-hire. (For more particulars on what is a work-made-for-hire, see my bLAWg from March 20, 2015 click here ). Nor does the statutory reversion right apply to copyright interests that were transferred by will.
However, it also applied to derivative works that were made from the original. So, if an illustration was issued for all kinds of paper products but mostly greeting cards, but was subsequently sub-licensed for a jigsaw puzzle that became a best-selling puzzle, termination of the original license terminates any sub-license as well.
So, why would you want to terminate the license of the sub-licensee who is still selling lots of puzzles? Because if the Artist is only getting a nominal royalty out of a successful illustration, she can look to renegotiate that royalty rate as an alternative to the termination, or look to obtain a much more lucrative license with another puzzle publisher upon termination!
There is a formal Notice process that applies to both statutory reversion rights. Rights under Section 203 may be effected at any time during a period of five years beginning at the end of 35 years from the date of original license. For instance, if an Artist granted an assignment of copyrights in a one or more of her illustrations on January 1, 1978, the earliest date upon which termination of such grant could be effected would be January 1, 2013; the latest date would be January 1, 2018. So, for those licenses commencing as of 1978, we are right in the window of time to recover those rights. If Notice has not been given in timely manner for this work, the reversion right will be lost for the duration of the copyright term, the life of the Author Artist plus 70 years.
Additionally, the written Notice must be served upon the grantee or the grantee's successor-in-interest not less than two years or more than 10 years before the effective termination date. And, of significant importance, the effective date of termination must be a date that falls within the applicable five-year termination window. So, in our example above, if the rights holders wait until January 2, 2016 to give the minimal two year notice, their window will have closed! For those who recognize that they are presently in the 10-year window, they can look to exercise their right now, to be effective as soon as the 5-year eligibility period commences. Make sense?
With copyright interests reverted, the Author Artist and her heirs will have the right to look for other publishing and/or licensing opportunities, presumably on much more attractive rates then were originally offered. And these recovered copyright interests will last for the remaining part of the copyright term, 70 years after the death of the Author Artist.
Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com
Friday, November 13, 2015
I first ran into Suzanne Cruise, cruisecreative.com after I posted a question in an art licensing group. She contacted me directly with information that was SO helpful! Read on to get her perspective on art licensing. (click images to view larger).
How long have you been in business and how did you come to be an agent?
I started as an in house artist at Hallmark Cards (they are headquartered here in Kansas City) around 1980, I quit a few years later to freelance. There were so many companies that needed vast amounts of art I figured my income potential would go up, which it did. At the time, there were fewer than 50 artists skilled at what Hallmark had taught me, so I came to see that I was extremely fortunate to be in the right place at the right time. I had so much work, I was at my drawing board 7 days a week. I had to take time to sleep and eat, other wise, I would have taken on even more work. By 1990 I had become fried, burned out...and wondered why no one was representing the work of an artist like me. I knew that with an agent I would have more time to create art. There was no one I could find repping us, so I decided to become a rep myself for product artists. I put the word out and w/ in 2 weeks, 25 people had contacted me. In less than a year I was paying over 150 artists, and still turning away work.
For several years, very very few companies were licensing art, they wanted to retain all copyrights. Around 1995 it swept thru the creative community that the artists were no longer willing to sell their copyrights out right, so I gradually moved all of us into that realm. We were doing a tremendous amount of book illustration at the time, the fad back then was to illustrate the Bible for the kids market. Since we had been illustrating huge numbers of children's books, I submitted samples to a number of religious publishers and ended up doing 4 out of the 7 Bibles that eventually came out in the market. Unbeknownst to me, one of them was done on a licensing basis. I was so new to licensing that I signed all the papers w/out thinking or knowing what I was doing....little did I know that, that contract would totally change the course of my direction as an agent. Once the quarterly royalties started coming in, I knew that art licensing was where I needed to take us. It was a tough sell at first, but in time, manufacturers realized that licensing paid off for them, and gradually it became the standard. As manufacturers started down sizing their creative in house staffs (freelancers were now readily available), the demand for art was climbing rapidly to its peak. I believe the peak hit in 2006, a year before the recession began to show it's ugly economic head. Prior to 2007, those years were the salad days in licensing.
I survived the recession, and in 2010 realized I was writing a lot more contracts than I had written in the prior 2 years. And while licensing income has not quite reached what it had been in the salad days, I no longer feel like the wolf has the door wide open and I am face to face w/ his full set of teeth!!! Retail and the dynamics of retail have shifted, and to remain successful, we have shifted with it.
Do you have help/employees?
Yes, I have two other, highly experienced and successful licensing agents, Ellen Seay (who was Paul Brent's sole agent for years) and Hong Campbell (who worked many years with a large agency in the east). I also have 4 part time people, 3 are tech people (my senior tech guy has totally rewritten and developed a new, state of the art, highly efficient business tracking system, the guts of my business, actually). Two manage the libraries..... cataloguing, categorizing and numbering art, sending out hi res once it is licensed, and the last person is my book keeper and contract manager. I also have two 20 something tech/digital guys who are developing and building an exciting, entirely new and proficient web site for our agency. This should be live before C'mas.
I work with manufacturers who produce almost every product category there is to license artwork on to. The only reason we are not in a few given categories is because we do not have the right art for those manufacturers. I am fortunate to have not only terrific and highly skilled people who work in two dimensional graphic illustration/design, I also rep quite a few artists who specialize in three dimensional product design and development, a niche that is highly sought after.
How do you market artists? Who pays for this? Anything different for new artists?
Once we take on an artist, their library is numbered and catalogued in our system, they will be put up on the web site as a "new artist", and will be labeled as such for 4/6 weeks. Then, each of the three of the agents shoot samples to all of their clients (we each have our own categories that we divide, that way, the artists will probably work w/ all of us at one point or another). We put together several digital post cards featuring the art/artist that are then sent out to all our clients in an email blast. If we have any art calls that we are working on, the work that is appropriate is sent to answer those art calls. Of course, the library is loaded onto our iPads, and when we exhibit at the trade shows, the art is shown to attending manufacturers, both existing clients and potential clients. We walk most of the major trade shows, the work is shown to clients at each of these shows. We also schedule a lot of on site appointments with our licensees, again, taking our iPads and showing any work that is a potential license for that manufacturer on a one on one, person to person basis.
As is standard in this business, we work on a 50/50 split, we cover all expenses (travel, food, transportation, promotion, in house services, etc.). The only thing the artist takes care of financially is copyrighting their work.
What do you look for in an artist?
Several things: the breadth of the library (how many images are in it), the color palette, the technique and the style the artist is using, how trend savvy the art/artist is, how familiar the artist is with licensing and what sort of art gets licensed onto product, any background they may have (if any) in licensing (do they have prior experience licensing their work and/or working w/ an agent prior to coming to me). If they are new to the biz, how flexible are they in taking art direction, how quickly do they turn out new art, how much or little hand holding do they require from me or the other agents. Their ability to evolve their art as they move forward in licensing is beyond critical, it is the key to their long term survival.
They must be a team player, I will not take on a prima donna, or I will drop them if they turn out to be a diva, or the male equivalent, thereof. Do they take the time at least once a quarter to get out into retail to see what is on the shelves, what products are being offered and what sort of art that is on them? Do they look at and try to analyze who are the shoppers, their approximate ages, family sizes, possible income level, what they are putting in their baskets, trying to perform a very unscientific study of the people/women who are supporting the artists' licensing efforts? Do they window shop on sites such as Etsy and Pinterest to see what is being offered, what seems to be trending there and how would that relate to the artists' work and techniques?
Do you feel an artist needs an online presence?
Yes, any supporting marketing efforts the artist has in effect only helps us to do our job, so a web presence is invaluable. Any activity the artist exerts in social media is a huge help in our making money for the artist, and for us, as well.
How much art do you expect and artist to create in a year?
That is like asking how high is up. Some artists do highly detailed, complex images, so they will be a lot less prolific than an artist who employs a simpler approach to their look and style. While an artist must continually feed the licensing machine, I much prefer quality over quantity any day, week or month. With the exception of times where the artist has to deal w/ personal and/or medical issues, which naturally subvert all creative urges, or the times where the artist just hits the creative wall and needs to take time away to regroup, an artist should be working on art every day, or night if they are a night owl. The artist is running a business, and while the majority of the people I rep are consummate professionals, it has thrown me when a few of them have shown the laissez faire side of their personalities. If you are not willing to make a serious commitment to building and restocking your library, you are not licensing material.
How has the Art Licensing business changed over the years?
The recession changed just about everything in the art licensing world.
95% of the products that art is licensed on to are bought by women who represent a variety of demographics. When the recession hit its peak, very few women were in retail, shopping, much less spending their money. I saw sales grind to almost a virtual halt in early 2008. Between the lay offs, the home foreclosures and the banking crises, a lot of us were almost done in. Women were not buying. Banks were no longer lending money to manufacturers, not even to the old, well established companies. Many went belly up in less than 48 hours. As did many of my colleagues, we had to really scramble to earn enough money to keep our doors open. I am not sure how we did it, but we made it thru the eye of the needle. I tell people I do not have the slimmest hips in the world, so it took me longer, and a whole lot of work to finally wiggle thru.....but I did it!!!!!
I am grateful for our ability to hang on, many of my associates had to throw in the towel.
Any advice or other information you would like to share?
Yes, do your homework before you attempt to jump into licensing, then do it again. Educate your self as to all of the mechanics of licensing. Whether you want to go it alone, or if you are wanting an agent to do the biz for you, know that licensing is an undertaking that is not for the weak of heart, regardless of who is looking for and then doing the deals. This is very much a relationship business, it can be a formidable task to get a toe hold in with a manufacturer. I often suggest that artists new to licensing should spend time repping themselves, one of the best ways to really understand at least the basic mechanics of this biz. Once you get your feet wet, you will have a much better appreciation as to how hard an agents job is and how hard we have to work in order to make a living for you and for the agency.
Understand it takes, on average, 18 to 24 months before any money begins to come in. That is quite a dry spell, and many artists are not ready for it. Prepare your self well if you want to pursue this field. Don't ask your friends or your mother what they think of your work, most have no idea what is good, licensable art is all about...what that looks like, what products it could truly go on, who would want to purchase that product w/ that art on it. If you do not have a professional colleague who can give you the naked truth, ask a few of the agents if you can pay them to critique the work. Some will not have the time, some will make the time. But asking them and being told no, well....that's one more part of that learning curve.
There are so many incredibly useful blogs out there written by artists who have cut their teeth in licensing....subscribe to them, follow them, ask the bloggers questions. Many are a wealth of information, and it may all be free. The other artists who share on those blogs offer an incredible array of information you will be able to get nowhere else.
If your art ultimately ends up not cutting the licensing mustard, there are other creative positions you can possibly hold, creative jobs you can apply for, that come with a tremendous amount of personal satisfaction, not to mention a steadier paycheck.
You can find Suzanne:
I REALLY appreciate all of you that help spread the word about my blog <3
Do you want to be spotlighted? Send me an email: info@AnnGraphics.comMake my day and follow this blog :-D Don't want to miss the good stuff? Sign up for my newsletter ;-)
Friday, November 6, 2015
Tell us a bit about yourself: Did you go to school for art? Are you self taught?
As soon as I could hold a crayon, I began making art. I remember sitting on the floor in Kindergarten and coloring in blissful contentment. I wanted the coloring to go on forever. I have always thought that the real basis for my making art is that I never seemed to be able to get enough drawing, coloring, cutting and pasting in Kindergarten! Several more years of cutting and pasting, and I earned five teaching credentials, a degree in art from the University of California, Los Angeles, and a Masters Degree in Education from the University of Southern California.
I later spent a number of years studying calligraphy. My love for letters eventually led to many years of teaching calligraphy to adult students from beginning through advanced levels. In an effort to put more color and art into my own lettering, I used watercolor painting, trompe l’oeil painting, paper sculpture, computer graphics, and many offshoots of these disciplines. Rubberstamping was very new at the time, and it caught my interest. Then I did some more drawing, coloring, cutting and pasting and this time it led me to designing a line of about 300 card size rubber stamps that were produced and marketed in chain stores and stamp stores for many years. None of these or my other art adventures would have been possible without the unwavering encouragement and support of my husband, Dave. He truly is, and always has been, the wind beneath my wings.
Do you work in just one medium? Several?
I actually work in every medium that traffic will allow. I bring it all together and try to make everything live happily in Photoshop. I draw on any technique that I think will help move my work forward. No holds barred. If it works it stays, if not I often save it for use somewhere else. A nice thing about art is that it has an indefinite shelf life, and can always be used in so many different ways.
What inspires you / where do you get inspiration from?
Going to a museum is always a way to drink in inspiration. But actually, almost anything can inspire me. I can take a walk and notice something in nature, and get an idea for a piece of art. I can look in store windows and see colors that I would like to try in combination. I can be talking to someone about something unrelated, and for some reason an art idea will pop into my head. I usually dream my very best ideas! When I am not thinking about art at all, I very often have a dream, which sends me down a new creative path. I dream in vivid color. Do you?
What are you working on now?
I have just finished a request to make 45 seamless, repeating patterns from designs I had previously made that did not repeat seamlessly. It was a huge task, but an exhilarating learning experience for me. I was never really intensely interested in doing seamless patterns before this challenge, but I found it fascinating, and fun, and I am eager to do more now.
I have lately also licensed and formatted 31 greeting cards, and sent them off for manufacture and sale, and I have recently finished a coloring book, with a little twist. I realize that I am at the end of a long line of coloring book artists. However, sometimes, it’s fun to jump into the trend and see what happens. So far, all three of these projects are getting enthusiastic support.
Anything else you would like to share with us? What you are grateful for?
I am grateful for all of the diverse experiences that I have had doing art professionally, and there have been many.
My varied involvement with art, I think, was my best teacher. One adventure would lead to the next, and what I had learned from the first enabled me to build for what followed. All experience is a dear teacher, and nothing, even a negative experience, is wasted. We learn and grow from everything we do, and we are a summation of it all. I am grateful for all of the opportunities, which I have had, and I eagerly anticipate what is waiting for me right around the corner. I am just going to let the art lead me where it will. It always seems to find a new, exciting, challenging and interesting direction. I’m sure I am in for more learning and growing. I can hardly wait!
Are you working with an agent, doing it on your own?
I have two agents, and this is the norm for me rather than the exception. When I started out in the Gift/Stationery market, I was with an agent who licensed only wall art. I wanted to license more broadly, in as many categories as possible, so with this agent’s blessing, I acquired another agent for all categories but wall art. I have since changed agents, but somehow I always have two. It seems that one agent always wanted to concentrate on wall art, and I needed to have someone else rep me for product. Recently, my wall art agent started to take on more interest in licensing product, so she became my solo agent…momentarily! An agent in Israel wished to rep me, and since there is no conflict in territory, my U.S. agent blessed that business deal. So, once again, I have two agents. Seems somehow to be in my stars! I have been privileged in the last several years to work with some of the nicest, hardest working, most ethical, and trustworthy people, as my agents. Together we are growing our business every year. I am grateful for my warm, congenial relationships with them, and I know exactly how fortunate and favored I am to partner with them.
Are you an early riser? or night owl?
I am both! If I have a tight deadline, I can be up much of the night so that I can be sure everything is perfect before I send it to the manufacturer. If I have not been up at night working, then I am usually up bright and early to see if there are any requests that require my attention. Since I do business in different times zones from my own, I need to have as much lead time as possible in the morning to fulfill requests if necessary!
What is your favorite food?
Only one? In the interest of good nutrition, I usually (often, mostly, sometimes) try to stick to healthy foods, however,…..
A girl has got to live a little! So, when I (infrequently?) really want to go off the wagon, I will have a nice big yummy burrito and/or crispy taco with salsa, guacamole, and chips from Tito’s, my favorite place in Southern California for such treats. The other splurge, although much less frequent, would be a huge ice cream/gelato waffle cone. I’ll do as many as three scoops if I think no one is watching! :-)
You can find Jill:
web site: www.jillmeyer.com
Blog Post ALSC: http://artlicensingshow.com/jill-meyer/
ALSC Profile: http://artlicensingshow.com/members/jillmeyer/profile/
I REALLY appreciate all of you that help spread the word about my blog <3
Do you want to be spotlighted? Send me an email: info@AnnGraphics.comMake my day and follow this blog :-D Don't want to miss the good stuff? Sign up for my newsletter ;-)