Friday, August 25, 2017

Bo's bLAWg - Performance Provision

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 licensed some illustrations to a group that provides imagery to manufacturers.  Only one license was ever entered into to my knowledge.  It was provided on an exclusive basis!  My agents indicate that to their knowledge my illustration was never used on products as anticipated.  I want to leave this licensing group and recover rights to my illustration.  What are my rights?  Hillary

Dear Hillary,
There are a number of issues included in your question.  I cannot answer any of them definitively without looking at the existing contracts, but they are good for this bLAWg!
Here is how I would approach the matter.

First, I would look for the Performance Provisions of each contract, the one with your Agent group and with the manufacturer.  I would hope that you did not sign up long-term with this Agent without there being some minimum level of success with respect to licensing of your illustrations in particular.  Back in October of 2015 I discussed the use of “Minimum Thresholds” to insure that a manufacturer was making adequate use of your illustrations for the ongoing benefit of each party.  (see

The same kind of Minimum Threshold approach can be used with an Agent.  They may need rights without minimum earnings for a year to ‘ramp up’ on their promotion of your artwork, but by the end of the second year I would hope and expect that they would have secured a sufficient number of advance$ to meet their own minimum expectations as well as yours.  As I mentioned in Oct. 2015, the Licensee’s or Agent’s own projections on these expectations can serve as the contract Minimum Threshold.  If the Agent will not agree to financial minimums, they may consider a minimum number of licenses to be obtained within the first two years of the Agreement.  If that expected minimum is not met, the provision would allow either Party to the Agreement the right to terminate it early.

With respect to the manufacturer, the common “Performance Provision” requires them to make use of your licensed imagery within a certain number of months since execution of the Agreement, or lose the licensed right to use your imagery.  The basic Performance Provision is intended to insure that your illustrations are not being ‘banked’ but must be used within a reasonable period of time.  If the manufacturer fails to move forward with the expected product use, you (or your Agent) would have the right to terminate and recover your rights to the imagery.  See if there is not a Performance Provision in the License signed, and if you do not already have the right to terminate that license.

I should mention here that sometimes the manufacturer is just about to go to market with a product featuring your illustration(s).  If they are ‘in breach’ by not meeting the “performance”  deadline of the original License, you can jam them up by given them notice of a breach of contract and demanding that they “cease and desist” from use of your imagery.  A compromise at that juncture might include a significant new additional advance on royalties.

However, do not overlook the possibility of a contract “Cure Provision.”  Does the manufacturer License give the manufacturer additional time to cure the claimed breach and avoid the termination right?  Many do.  In which case, not only must Notice of the Breach be given in the  manner specified in the License, but the manufacturer may be able to avoid the breach altogether by getting the product with your illustrations into distribution within the (usual) 30-day cure period.  Don’t be disappointed if that is exactly what occurs.  Isn’t that what you actually wanted in the first place – the products with your artwork in the marketplace?  Sometimes, the manufacturer just needs to be hurried along.  The Performance Provision can be useful for that purpose.

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

Have a legal question? email it to I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

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Friday, August 18, 2017

Agent Spotlight - Wild Apple


How long have you been in business and how did you come to be an agent?
We started in 1990 as a poster publisher. While Laurie and I were at art shows we kept getting asked by manufacturers (including company after company claiming to be the #1 puzzle company in Japan) how they could get the art for their products. At the same time, our artists kept asking us to take care of all the “business stuff” when manufacturers approached them directly. Finally, we followed the demand and became a licensing agent. It's been a wonderful decision that has helped us grow Wild Apple and the careers of many artists.

Who are the manufacturers you work with - how did you establish those relationships?
We work with manufacturers across home decor, bath, kitchen, gift and stationery. Our relationships go back decades with many, and almost all of our business is with repeat buyers. Each relationship started small, with just a few images and grew over time. We are continually reaching out and looking for new partnerships to grow our market base and "make the world more beautiful with art".

Do you have employees/help?
Currently, we have 35 employees.

How do you market artists?

  • We exhibit at Trade shows: Surtex, Licensing Expo, West Coast Art & Frame, FamaArt

  • Our new and improved website:

  • Videos like our 1-minute Artists Videos and new "in The Artist Studio" on YouTube

  • Bi-monthly email newsletters packed with trends and our monthly lookbooks that introduce new art and artists
  • Social media: Facebook, Twitter, Pinterest, Instagram, LinkedIn

  • Print ads in Li©ense and Art of Licensing

  • We attend the Atlanta and Vegas Markets to meet with customers

  • Sales visits to customers

  • Trend Reports
  • Blogging

What do you look for in an Artist?

Our artist base is diverse. We work with fine art painters, illustrators, and photographers. We are always on the lookout for artists creating fresh, trend-forward art with broad decorative appeal that is marketable into global home decor markets. We also love working with artists who love the challenge of an assignment and aren't afraid to expand their body of work into new and exciting directions.

How much work do you expect artists to create?
Each artist is different. We have some artists who create a steady stream of art and send us over 20 new pieces a month to chose from. Others send less. Our customers are looking for a steady stream of new art and patterns, so the more to work from the better.

Any great news you would like to share?
We were thrilled to launch a new website this past Spring that gives our customers better ways to search for art, a more powerful portfolio tool and better access to our Lookbooks, trend magazines, trend blogs and more.

We have introduced a number of new, amazing artists over the past year and a half including Phyllis Adams, Melissa Averinos, Felicity Bradley, Kellie Day,  Patsy Ducklow, Jan Griggs,  Piper Rhue, Miranda Thomas and Farida Zaman.

We recently hired a new National Licensing Accounts Manager - Tiffani Price! With over 25 years of sales, marketing, management and product development experience, she has first-hand experience delivering successful programs to retailers.

A new project we are very excited about is our collaboration with Rustic Wedding Chic to develop a new line of wedding-themed stationery - look for it at retail soon!

As one of the founders of the Art Copyright Coalition (, we are continuing our fight to protect art and creativity. Copyright infringement is still a huge problem globally. Working with other publishers and licensors we take action against infringers, raise awareness and educate retailers on the importance of copyright. We travel to China 2 to 3 times per year to walk the major shows, take down infringing products and work with overseas manufacturers to legitimately license art for their products. This work has led to a marked decrease in the number of illegal products we see at shows and new, productive partnerships.

 You can find Wild Apple's amazing art/artists, newsletter and more go to

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Friday, August 11, 2017

Artist Spotlight - Emily Cromwell

Tell us a bit about yourself: Did you go to school for art? Are you self taught?  
Hi there! So my name is Emily Cromwell, I’ve been creating art ever since I can remember. I grew up taking art lessons, and drawing and creating in my free time. I went to school at Framingham State University where I majored in Illustration. They didn’t teach digital illustration there, so I had to teach myself. I got a Wacom tablet and just kept experimenting until I found my style!

Do you work in just one medium? Several?
I only work digitally on the computer. I always start out my designs first by sketching them in my sketchbook, but ultimately they’re brought to life with color on the computer where I paint digitally.

What inspires you / where do you get inspiration from?
I’m inspired by colorful and sparkly things! I get my inspiration from wanting to make people smile and feel happy. All of my artwork is created with vibrant colors, positive messages, and happy illustrations because I want people to feel joy and happiness when they look at my designs!

How did you start licensing your art?
I started licensing my art when I signed on with my art licensing agent. I don’t know where I would be without them!

What are you working on now?
Right now I’m working on catching up on Surtex requests for manufacturers. I’m also doing various freelance projects!


Any great advice for our readers?
Hmmm..some advice that I have to give is to always create art that you’re passionate about. People can tell when you create artwork that you’re happy with, so always make sure that you enjoy and love what you’re working on! I use music to help me do this sometimes! If I’m designing a Hawaiian pattern, I’ll pull up Youtube and stream a Hawaiian music playlist. I’ll do the same for Christmas, Halloween, summer, pretty much anything! Music really helps you to get in the mindset of what you’re designing, if you ever find that you’re struggling. =)

Anything else you would like to share with us?
I’m in the midst of signing my first licensing deal right now (YAY!), as well as working on creating more collections for both holidays and everyday themes. I’m also working towards getting a children’s book I wrote and illustrated, published or maybe even self-published.


Are you an early riser? or night owl?
Would you believe me if I said both?! I usually get up around 7am-9am, and I stay up creating until midnight-3am. My sleeping schedule is all over the place!

What is your favorite food?

You can find Emily:
Instagram: @emilycromwell

Want to be spotlighted? email me I am looking forward to your comments below and thanks for sharing this great information on social media.


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