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Download Our Artist Licensing Agreement. It’s Free.

Latte Art
Latte Art by Kazuki Yamamoto

It may be surprising to receive a free licensing agreement from an attorney but we think it is so important that we had to do it.  Let’s start with a hypothetical scenario.

A Story About Latte Art

Janet recently opened a local coffee shop, called “The Grind,”. She then hires you as a photographer to shoot the new store and the unique Latte Art that has been drawing customers throughout the area. The photos will be used strictly for the Grind’s website.  You complete the shoot, invoice Janet and are paid for the work. Six months pass. You are reading Wired magazine and see an article on a new coffee machine called “CoffeeArt”, which creates cool foam patterns automatically.  On the product packaging, you see your unmistakable photographs from The Grind, with their telltale signature Latte Foam Art.   You call Janet immediately.

Janet says, “Yeah, pretty cool right?  That company was started by a friend of mine and I gave him those pictures for the product packaging.” You tell her she had no right to do that but she says that she bought the photos so they are hers to do with what she wants.  You then contact CoffeeArt and tell them they are using your photos without permission and ask them to pay you for the use of the photos. CoffeeArt asks you to contact their attorney.

Scenarios like this are all too common. Janet and CoffeeArt are not maliciously infringing your work; the misuse purely occurred due to a misunderstanding as to what rights Janet was entitled to when she hired you.  To avoid scenarios like this, it is important that you communicate to your client exactly what rights they are receiving.  The appropriate vehicle for this is through a licensing agreement.

What exactly is a licensing agreement?

As the copyright holder, you are provided exclusive rights in your work as per the Copyright Act.  Those rights include the right to make copies, distribute, publicly display, and make derivatives of your work.  Those rights are solely yours and cannot be taken away.  However, those rights can be transferred to another entity; whether in total or just a few of the rights, for a limited time or for life.  With a license, you are not “selling a work” as such. What you are doing is selling permission to use that work in a certain way for a certain length of time. We have created a sample agreement for your use, which you can download below.

As you can see, the licensing agreement sample is long and full of legalese, all necessary for your protection but not necessarily helpful in ensuring that your Client understands the terms. To make sure that your client understands the terms, we recommend adding a summary to your invoice so you can be sure you are both in agreement as to what is expected.  Also, while the agreement may have standard terms like cancellation requirements, other terms may be different for each of your projects.  For example, as a photographer, you may want to limit your photographs to web-only or as a musician, you may want your jingle only used for a particular commercial and only for 1 year, at which time, the client must pay a renewal fee if they wish to continue using it. Variable terms are better added to the invoice rather than within the agreement so it can be the same for each client. Also, it will be helpful to review each element  the agreement as well as the variable terms with the client. At the very least, should you find yourself in a lawsuit with the client, the agreement will be an important evidentiary item. Some people may think that such extensive legal documents and discussions are overkill or a just a hassle; those people generally recant that thought the day they find themselves in a litigation.

A licensing agreement should be a basic part of your photography or other art-related business. While it may seem like extra work, in the long run, it will save you time and money.

Any parts of the agreement below that are marked in red are variables that should be changed to accommodate your business. This sample agreement is for general use and so, may not be appropriate for every situation. Please read it carefully and make changes as necessary, as not all sections may apply to your particular business. You may want to have an attorney review this Agreement before actual use. See the Art Law Journal’s Terms and Conditions and Disclaimer for more information on our policies regarding sample documents.

ARTIST LICENSING AGREEMENT

This Artist Licensing Agreement (the “AGREEMENT”) is entered into effective this date, [DATE] between [ARTIST NAME] (“ARTIST”) and [CLIENT NAME] (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.

Scope of this Agreement. This Agreement applies to any image, graphics, digital assets, or digital images created or taken by Artist and delivered to the Client (collectively known as “IMAGES”). This Agreement governs the relationship between the parties and in no communication or other exchange, shall modify the terms of this Agreement unless agreed to in writing.

Rights: All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Artist. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Images only for the agreed upon terms as set forth in the Client Invoice and signed by both parties. Images used for any purpose not directly related outside of those terms must be with the express permission of Artist and may include the payment of additional fees, unless otherwise agreed to in writing. Images may contain copyright management information (CMI) at the discretion of the Artist in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes a violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Artist for any penalties and awards available under that statute.

Relationship of the Parties: The parties agree that Artist is an independent contractor and that neither Artist nor Artist’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Artist and the Images or any other deliverables prepared by Artist shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

Creation: The manner and method of creating any Image is solely at the discretion of Artist and the Client has no right to control Artist’s manner and method of performance under this Agreement. Artist will use his/her best efforts to: (a) ensure that the Images conform to Client’s specifications; and (b) submit all Images to Client in publishable quality, on or before the applicable deadlines.

Delivery: Artist may select delivery of photographs in JPEG, TIFF, PNG, or other standard formats at a resolution that Artist determines will be suitable for the Images as licensed. It is the Client’s responsibility to verify that the Images are suitable for reproduction and that if the Images are not deemed suitable, to notify the Artist within five (5) business days. Artist’s sole obligation will be to replace the Images at a suitable resolution but in no event will Artist be liable for poor reproduction quality, delays, or consequential damages. Unless otherwise specifically provided, Artist is not responsible for providing images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. Artist has no obligation to retain or archive any Images delivered to Client.

Fees: All fees and expenses payable under this agreement are required no later than ten (10) business days from the delivery of the Images and payable irrespective of whether Client makes actual use of the Images. If full payment has not been received within thirty (30) days all rights are revoked at Artist’s discretion. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Artist with written statement that all images have been removed and destroyed.

Cancellation: If Client cancellation of this Agreement prior to 1) Stated delivery date on the Client Invoice or 2) within one (1) month of this agreement, Client will pay any expenses incurred and a twenty-five (25)% cancellation fee. For Client cancellation within two (2) days of the delivery date, Client is responsible for one-hundred (100)% of the fee and any expenses incurred.

No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Artist, and Artist shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Artist.

Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.

Indemnification: Client will indemnify and defend Artist against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Images or materials furnished by Client. It is the Client’s responsibility to obtain the necessary model or property releases are ensure they are full effect and in force.

General Law/Arbitration: This Agreement sets forth the entire understanding of the parties, and supersedes all prior agreements between the parties. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of [STATE]. Any claim or litigation arising out of this Agreement or its performance may be commenced only in courts physically located in [COUNTY] [STATE], and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute, either party may request mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Severability: If one or more of the provisions in the Agreement is found invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected. Any such provisions will be revised as required to make them enforceable.

Waiver: No action of either party, other than in writing agreed to by the parties, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such action will not preclude further exercise of other rights or remedies in this Agreement.

IN WITNESS WHEREOF, the parties have caused this Artist Licensing Agreement to be duly executed as of the dates written below.

[Client Name]

By: __________________________________ Name: __________________________________

Title: __________________________________ Date: __________________________________

 

[Artist Name]

By: __________________________________ Name: __________________________________

Date: __________________________________

Courtesy of the Art Law Journal (please do not remove)

 

 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

23 Comments

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  • Steve, aren’t you worried about the provision “the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation” . If an artist is suing a larger entity that entity could easily rack up massive legal fees if they retain a law firm. A artist on the losing side might never be able to pay the legal fees for the other side.

    • The legal fees are at the court’s discretion. If they are unnecessarily high, then the court could reduce them to a manageable level. But a lot will depend on why they are so high. Was there a reasonable settlement offer and the prevailing part didn’t accept it causing the litigation fees to rise? The court wouldn’t reward that kind of behavior.

  • Hi Steve,

    I’m wondering if you happen to know anything about having a licensee in a different country then the photographer. Does this cause a lot of issues?

    Thank you so much for posting this! It’s really helpful.

    • Thanks for your kind works about the post. As a general rule, licensing across borders is no different than licensing within a particular country, except that you need to be aware of local laws that may impact specific provisions in your agreement. We can’t give legal advice here, unfortunately, and every situation can be different, so for an answer specific to your circumstances, you should consult with a copyright lawyer licensed in your jurisdiction.

  • I have a unique situation. A friend of my daughter’s is very talented, and offered to design a logo for my new company. I want to pay her for her work, but need to have a contract in place that outlines the logo becomes property of my company once the funds are transferred. With her being a minor, how does this play out?

  • Hi, Steve – thank you for posting this. I’m a bit confused by the Client & Artist info/signature section at the bottom. What data do you intend to be populated in the “By” blank and why is there a second “Name” blank for each party when the Client & Artist names are already printed above each of their respective signature areas? Thanks for clearing this up.

    • Thats just in case a representative is signing. The first line is for the signature, second is the printed name. So let’s say the Client name is Fotofilosophy, Inc. (which is printed above) then the signature is the representative, i.e. Steve Schlackman, then Steve Schlackman is printed next to the signature. If the artist or client name is the same as the representative, then the name field would be redundant. Hope that helps.

  • Hello Steve:

    I want to sell knitting patterns online. The buyer can download a PDF file with the pattern after the purchase is completed.
    What do I need to make sure the buyer is informed not to resale the pattern or share the file
    in other websites or pass it as their own?
    The buyer can make the item for themselves and even sell the item.
    But not mass produce it.

    Can you guide me to where I can get some information?

    • Passing it off as their own is codified by law. You don’t need to do anything to prevent it, as such an action is inherently illegal. The same goes for sharing the file, be it for money or free. (Since it’s not a tangible object, reselling the pattern and sharing the file are essentially the same action, and, rightly or wrongly, would technically be classified as duplicating the file.)

      I’m not well versed enough to speak to the legality of “mass producing” the item itself, especially if selling the item is permitted under your ToS.

      If you want to inform the buyer that they can’t do the things that they’re already not permitted to do under the law, you don’t require a contract (since those things aren’t permitted in the first place). You can simply remind them that they can’t do those things (which, for the record, you aren’t required to do).

  • Thank YOU Steve for being a true person! I Have worked for companies for about 30 yrs in the Textile industry, I also am branching out on my own. Very exciting! Thank you for putting out there in the Universe good vibes! Can you email me the agreement ? I just can’t seem to download it. Thanks again Karen

  • I’d be using this as a licensing agreement on my website, in which I take artwork from others and apply it to products, which my company sells. Its still applicable in that scenario, yes?

    Thanks, by the way!
    Very well done!

  • Hi Steve. I stumbled onto your link and I am hoping you can answer a quick question for me. I am beginning a new business as an artist rendering house portraits. Initially, I am building my portfolio to display drawings of architecturally interesting homes on my site going live 10/1/14. Here are my questions. If I, myself, take a photo of a home and then draw a portrait by hand of the home, do I first need to get the home owners approval to do so? Is it legal to display said drawing on my site? Do I own the portrait or does the homeowner have legal rights to it?

    Thanks for any insight you can share!

    Claire

    • In general, if you are taking the image from a public space, then you should be fine. Mostly, buildings seen from the public eye are fair game.

      here is the section from the Copyright Act
      “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
      — United States Code 17 (Copyright Law), Section 120

      also, see this article

  • I appreciate your offer of a sample license agreement! I am new to the world of art licensing and just learning the ropes. Thank you for helping a layperson understand!

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