Good Licenses are Based on Good Agreements

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I’ve been in art licensing for so long that I’ve heard a ton of “horror stories” from artists who’ve made mistakes that should have been completely avoidable.

One of the worst comes from an inability to read and understand basic licensing contracts.

Read It And Weep

Here’s an example: one artist told me he was thrilled when a major print publisher wanted to sign him up for prints.

He had received verbal assurances on the phone from the publisher that they would print a lot of his art, promote the work broadly and even commission new works that might be published.

He showed the agreement to his lawyer, who reviewed it and told him to go ahead.

The Reality Was Worse Than The Hype

When he contacted me a year later about representing him for licensing, it was after the print company had done a lackluster job with his art, publishing only a few prints, having him paint several sets of new images which wound up in a drawer somewhere in the publisher’s office, and giving him monthly royalty checks as low as $20.

He was depressed and had decided to license his art elsewhere.

You can imagine his shock when I explained to him that according to his agreement, that just wasn’t possible.

Here’s What We Found Written In His Agreement

And there were more facets to the agreement, right there in black and white, that he had apparently never read – or at least never understood.

The agreement wasn’t even between him and the publisher, it was between him and a licensing agency! 

This agency, which just happened to be owned and operated by the same people who owned and operated the publishing company, gave itself the exclusive right to publish any or all of the artist’s work for the next five years and to sublicense his art to anyone they wished, whenever they wished, without even gaining his permission before going ahead.

Shocked To Discover The Truth

He was shocked when I read him sections of the agreement that his lawyer had read and that he had signed.

I carefully explained to him that there was no way I could represent him or his art, as he was totally locked up by the other licensing agency. “But they didn’t tell me that!” he said frantically.

Nonetheless, that’s exactly what it said in the written agreement that he had signed.

What had he done wrong?

First, he had relied on the friendliness of the people he spoke with at the publishing company and their verbal promises.

Reassured by their support, he didn’t feel that he really needed to plow through the entire agreement himself.

He liked the people, he trusted them, so he quickly signed and dated the agreement and sent it in.

Secondly, he had showed the contract to an attorney who simply didn’t know what to look for in an art licensing agreement. 

After all, when they’re in law school, attorneys learn about contracts and contract law, but without specific application to the fields of art and licensing.

So when his attorney reviewed the contract, he wasn’t able to recognize how certain key provisions of the agreement would affect his client’s future ability to market his art.

The artist should have gone to an attorney with experience in intellectual property law and, specifically, in creating and reviewing art licensing agreements.

Thirdly, the artist himself made the major mistake of not reading every line in the agreement himself and making sure he understood every bit of it.

If there’s any one piece of advice I could give an artist about to enter a legal agreement, it is to read every single line in the contract and make sure that you totally understand it.

I know that isn’t easy for most people, but don’t get in the water if you don’t want to get wet.

If you find that there are sections or sentences that aren’t written clearly, don’t say what you want, take away a bit more of your rights than you feel you want to give, or if any of it seems confusing or contradictory, have the company rewrite it in plain English.

Never sign anything important that you haven’t read or understood.

Fortunately, the artist was very lucky – lucky that he had contacted someone who understood licensing agreements, lucky that I forced him to read every line of the agreement he had signed, and lucky that I coached him on how to deal politely with the publisher to get released from the more onerous provisions of the agreement.

He went back to the publisher, explained his situation, pointed out that his prints weren’t selling that well anyway, and explained what he wanted to do.

Luckily for him, the publisher was human and understanding enough to do the right thing – he released him from many of the major terms of the agreement. And did so in writing.

Don’t let this stop you from promoting your art for license!

Most companies are quite reputable and many contracts are completely understandable by the average person.

Just make sure you read every word, and know what it means.

A good contract can form the basis for a long and successful relationship, so don’t overlook the paperwork on the road to what you hope will be success in licensing your art.

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(c) Lance J. Klass.  All Rights Reserved.  This article may not be reproduced with the expressed written permission of the author. 

For information about copying all or part of this article, contact the author atart@porterfieldsfineart.com.

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