Copyright Uncovered: A deeper look at artists’ contracts

    For our first Copyright Uncovered of 2019 our Legal team explores UK-law contracts, looking at copyright in more depth.

    As an artist, you might get commissioned to make work or be invited to participate in a project, and someone may present you with a contract to seal the deal. But before you put pen to paper, here are some clauses we think you should look out for.

    The Copyright Clause

    Most contracts for artists will have a clause that covers copyright, setting out how much control you have over your work. Certain words could give the person you’re contracting with more control than you.
     
    The key words to look out for are licence and assignment.
    • An assignment amounts to selling your copyright, which means you have no control over the way in which your artwork is used in the future.
    • A licence grants permission to someone to use your work in certain ways. It gives you flexibility to apply certain terms, such as how long the work can be used for and where.
    But licences can also limit you as an artist. Check for words like exclusive, which means you can’t grant a licence to anyone else, worldwide and irrevocable. If you do see these words, make sure that you understand their effect and you’re happy to agree to them. You may not be able to change your mind later.
     
    Your moral rights, like the right to be identified as the artist, remain with you even if you no longer own the copyright to your work. These rights can’t be assigned to someone else, but they can be waived in the contract, so look out for a waiver of moral rights.

    The Definitions

    Ignoring the definitions at the start of the contract can trip you up later. A term such as ‘Artistic Works’ should accurately describe the work you’re contracting about.
     
    ‘Intellectual Property Rights’ are often defined to include copyright, designs, trade-marks, logos and patents. Think about whether your intellectual property rights in your other work might be incorporated into the contract. This definition is sometimes used in warranties and indemnities (see below) referring to someone else’s intellectual property rights instead.
     
    Check that all definitions are used consistently in the contract and aren’t interchanged with similar phrases that aren’t in the definitions section.   

    Understanding Warranties and Indemnities

    Warranties are assurances that can be made by both parties in a contract. A common warranty you might give as an artist is that your work doesn’t contain anyone else’s intellectual property rights (this is a moment when the definitions come into play). You may be guaranteeing that your work doesn’t include anyone else’s art works, logos, images or trade-marks without clearing the rights.   
     
    Warranties may also be backed up by an indemnity, which is a promise to pay money to the person you’re contracting with if a certain event happens. For example, if your work did use someone else’s intellectual property rights and the person you contracted with was sued, your indemnity may state that you pay them compensation.
     
    When reading the warranties and indemnities, you should ask yourself if these are acceptable to you; if you’re able to give the assurances; and if you can fulfil the indemnities if something happened. Money could be at stake, so make sure you’re comfortable making these commitments.

    The Entire Agreement Clause

    Even if the contract doesn’t have a clause with the words ‘entire agreement’, it may indicate that the paper in front of you is the only thing agreed between you and the person you’re contracting with.
     
    The significance of this clause is that anything decided beforehand is irrelevant unless it’s in the contract. So, if you asked for certain terms over email, for example, they must be in the contract to apply.
     
    Check that the contract is consistent with previous conversations you had or ask to have inconsistencies rectified.

    How to approach contracts:

    • Don’t panic. Break each clause down and read it separately. The contract should tell the story of what you have agreed with the person you’re contracting with
    • Make sure you can make any of the promises the contract asks of you
    • Is something confusing, inaccurate or missing? Ask for clarity or for inconsistencies to be addressed
    • Don’t forget, Copyright Licensing and Artist’s Resale Right members can get in touch with our Copyright
    • Advice Service (CAS), where we can guide you through the legal implications of copyright clauses in UK law contracts.

    Copyright advice for members

    Are you a Copyright Licensing or Artist’s Resale Right member at DACS? Remember to take advantage of our free copyright advice service for these members:
     

    Find out how it works

     
    Not a member? Sign up now:

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    The content of this article is not intended to apply to individual circumstances. It does not constitute legal advice, it is not a substitute for independent legal advice and should not be relied upon as such. 
     

    Image: Guftugu I (A discussion between Al Barundi and Ibn Sina about Aristotle), 2014 © Rasheed Araeen. All Rights Reserved, DACS/Artimage 2019.

     

    Posted on 14/03/2019 by Jessica Bancroft