Friday, May 26, 2017

Bo's bLAWg - Copyright and Title; Two Distinct Rights

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I sell my original paintings, but retain digital files for licensing use on merchandise.  Does the purchaser of my painting have any right to use the image? Thanks. Jerry

Thanks for your question, Jerry.  You have identified the basic distinction between “physical property” and “intellectual property” rights.  Real property and personal property are ‘physical things’ which can be owned, and transferred in commerce.  Real property, of course is a house and the land on which it is located.  Personal property, or “personalty,” includes paintings, prints, merchandise, CDs, DVDs and books.  Ownership to both real and personal property is indicated by the term “Title.”  Just as the purchase of your house by a third party is deemed to transfer your Title to it to the new owner, so too, does the purchaser of your painting take your Title as their own.

Intellectual property interests are more ephemeral.  They are also your “property,” but they pertain to the artistic works contained in personalty:  the imagery contained in the physical painting, prints or on merchandise via license; the underlying composition and recording of music contained in a CD; the movie contained in the DVD, and the story and characters contained in the book of fiction.  In non-fiction, the Author’s intellectual property interest is in her written text, apart from the facts contained in the text.  All of these intellectual property interests, and rights in derivative works that can be made out of them, are the essence of Copyright.

You will recall that I previously provided the list of the Copyright holder’s Exclusive Interests:
With respect to your painting, Jerry, these include the rights to:
1.  reproduce the work in copies;
2.  prepare derivative works based upon the work;
3.  distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending, and
5.  display the copyrighted work publicly.

The notion to keep in mind is that these rights all attach to your copyright (your intellectual property in the underlying imagery), but not to the painting (personalty).  The people who purchase your painting get none of you intellectual property rights unless you expressly provide such rights to them.  An example of that, would be offering the purchaser the right to use the image in a family Holiday Card – presumably on the condition that your copyright notice is affixed!  You may also want to pre-approve the quality of the reproduction being made.  Clients of mine have provisions allowing for these additional rights and other conditions that they insert into their Art Sale template. 

I am reminded that one other provision I recommend be considered to include in the Sale Agreement is the right to borrow back the sold painting for a Museum or other show featuring the best of your artworks.  Most purchasers are so pleased with the notion that the artwork they are purchasing is one of your own favorites, they do not object to signing an agreement that allows you the right to borrow it back with reasonable notice, and on the further condition that the artwork is fully insured when out of their possession.  If you do not include such a right in your sale agreement, you would not be able to make the purchaser loan possession back to you.  The exclusive right of possession is the essence of Title to personality, just as Copyright is your exclusive right to the image in the painting.  Make sense? 

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,
© 2017 mjbogatin

Friday, May 5, 2017

Artist Spotlight - Judy Reed Silver

(Click on images to view larger.)

Tell us a bit about yourself: Did you go to school for art? Are you self taught?   
I went to Art Center College of Design in Pasadena and focused on illustration and fine art.  While I was much younger I attended Brentwood Art Center for several years - started there when I was thirteen in adult life drawing classes as they didn’t offer any classes for kids at the time. I luckily had a family that allowed me to turn our kitchen into an art experiment. 
Do you work in just one medium? Several? 
It depends. If I’m working on canvas or for a fine art print I work with collage using my photography (sometimes steal my husbands as he used to be a professional photographer) and patterns that I created. I print to fabric or special papers. But for illustration, design and licensing I often work solely digital or scan in my drawings and vintage photos, manipulating within Photoshop. I also use cutline filters for a “vintage” effect. For wall patterns or fabrics, I usually use Illustrator, as most companies I’ve worked with prefer art supplied as vector files.

What inspires you / where do you get inspiration from? 
Japanese kimonos, fabrics, textiles, nature, especially anything vintage. I love modern architecture, interior design, fashion and that's what inspires me to incorporate my work for walls, rugs and fabrics.
How did you start licensing your art? 
A close friend and art director was working on a project for clothing and didn’t know the technical aspects of how to create patterns within illustrator. So she asked me to assist her on the project. This was back in 2005 and that job led to another large project with another design firm creating several clothing lines. I realized that between my love for fashion and architecture licensing would be a good fit. I was then approached by a licensing rep that convinced me to move forward and go all in.

What are you working on now?  
Designed another scarf recently for the National Cherry Blossom Festival (held in DC each spring); they sold quite well.  I also had fun with nature-inspired imagery for use on cool water bottles produced out of Sausalito. And then I'll work on a collage-y piece for a magazine. It's a nice blend of clients and I value what that diversity brings. Just now, my agent, Liz Sanders/Liz Sanders Agency and I have  promotional materials we're collaborating on. ...Would like to approach my blank canvas boards again!

Any great advice for our readers?
When approaching licensing, make sure the contracts make sense and are fair, most are slanted towards the Licensee. All copyright transfers are contingent upon payments in full, which should include a copyright reversion clause if any breach in payment or usage. The “Net” proceeds should be specific. Also the artist credit should be stated on the artwork and advertising/promotions. When seeking a licensing rep, speak to the other artists in their group to get proper background info.

Anything else you would like to share with us?
A few of my images are licensed through a company called, “Soundwall.” They produced this new sound/music technology that is transferred directly through the artwork and not a speaker. I listed their link below.
Are you an early riser? or night owl?
Really a night owl. I rarely go to sleep before 2 am. Everyone knows to never call me before 10 am. I do my best work at night.
What is your favorite food?
Indian food, and Caesar salads.

You can Find Judy:

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