Legal advice for visual artists

When embarking on a visual arts career, artists are often so happy just to secure a commission or funding for a project that they immediately agree to anything the commissioner, funder or gallery owner demand and pay little or no attention to the legal aspects or consequences of their commitment.

Without confusing the legal issues in legalese, here follows a few practical tips when confronted with negotiations involving visual art commissions:

  • Always properly consider the terms and conditions of any agreement before rushing into a commission and signing a contract. Contractual agreements are legally binding and hard to change after conclusion, especially if the parties to the agreement no longer seem to get along or disagree on the interpretation of certain clauses. The flip side is that a legally binding contract will only come into effect if there is a true meeting of the minds between the contracting parties, with other words, only when the parties fully agree on each and every term and condition contained in the contract, will the contract come into being;
  • Use so-called best practice guidelines to guide you during your negotiations and execution of your commission.Currently only four countries in the world have formal “Norms and Standards” for good practice in their respective visual arts industries, but fear not, the Visual Arts Network of South Africa (VANSA) has been commissioned to draft “Norms and Standards” for the South African visual arts industry and recently held country wide workshops to collect input from all interested roll players. (We’ll keep you informed of further developments in this regard in this newsletter.)However, it must be emphasised that best practice guidelines is not legally binding and only serves as an ethical and professional guide to aid you during your business endeavours and to clarify the terms and conditions applicable when undertaking a commission. It is advisable to, once such “Norms and Standards” have been drafted for South Africa, to send a copy of it to your commissioner at the earliest opportunity, which may also serve as a written acceptance of the commissioner’s offer after which the parties can attend to the contractual formalities.
  • After concluding an agreement and signing the written commission contract, confirm such agreements in writing and safely keep a copy of the contract to serve as reference for future disputes and documentary proof of the terms and conditions of the agreement between the parties. Similarly, also keep all correspondence and commissioning briefs from your clients for at least a period of 3 years after completion of your briefs or commissions.
  • When reading through the commissioning contract, look out for clauses demanding ownership of your art work and complete assignments of copyrights. You must actively attend to sort out such issues as your failure to respond to these demands, even though you may not be in agreement with it, may be construed as your implied agreement with the terms and conditions of the contract. In practice it often happens than a commission is well under way when the contract in respect thereof surfaces. Make sure that any discrepancies or uneasiness in respect of the contract is immediately sorted out before continuing with your commission, as your failure to do so, and your completion of the commission may be interpreted as your agreement to the clauses as contained in the contract, even if you did not sign it. Best practice will be to finalise the agreement by means of a formal written contract first and only then start with the execution of the commission.
  • When in doubt, obtain legal advice.In terms of section 3(1) of the Copyright Act 98 of 1978 copyright is automatically conferred to an author of an artistic work by this section and does not need any further form of registration. It is sometimes difficult to establish who the author or creator of an artistic work is, unless your work is properly signed or branded and accordingly difficult to identify the person whose consent must be obtained before copying or using the specific work. The Association of Illustrators, situated in the United Kingdom, makes “ownership or copyright” stickers available to their members to attach to their illustrations in an effort to solve the aforementioned. These stickers contains information on the handlers of the artwork, authorship, ownership and importantly, that the wok must be returned to the person indicated on the sticker.Always obtain legal advice on, often long and complex, royalty contracts. Never begin substantive illustration work on a picture book until these contracts have been finalised.
  • Do not copy other images, not even photographs! Section 7 of the Copyright Act 98 of 1978 strictly prohibits the copying or reproduction of a work in any form or manner (subsection (a)), publication of a work, if not yet published (subsection (b)), making of an adaptation of a work (subsection (e)) or any of the aforementioned acts in respect of an adaptation (subsection (f)). Contravening one of these prohibitions will constitute copyright infringement which can be punishable with a fine not exceeding R10 000-00 or imprisonment for a period not exceeding 5 years.An exception to the above is fair use, but this subject falls outside the scope of this article.
  • Always keep to agreed deadlines and never agree to an unreasonable dead line. Badly missed deadlines may result in your liability for damages for example when your illustrations for a children’s book is late and the book hits the market later than anticipated and misses certain income targets. If you foresee a missed deadline, clearly and timeously communicate your difficulties in this regard and re-negotiate a new deadline. After all, life happens when you’re making plans.
  • Never accept a commission behind your agent’s back in an effort to avoid paying the agent’s commission. Your agent is doomed to find out and it will destroy the trust in your relationship. It is also unethical and will constitute a breach of your contract with your agent in which process you will incur more liability than gain profit from doing so.
  • There is very good reasons why an artist should think long and hard before assigning their copyright. Any demands for assignment of copyrights inevitably includes a waiver of so-called moral rights, which includes your integrity. If you assign your copyright you immediately lose control over the future use of your art work and may your work be changed, distorted or used in a context you may object to, thereby damaging your professional image and integrity.You have no remaining right to copy your own image and you may find yourself professionally competing with your own images, especially if your art works are eventually sold to an image bank and widely distributed. Instead, you could rather exploit your own art work upon retirement by selling your own works to an image bank against payment for secondary use.However, there are exceptions to the above and can people buy different kinds of licences in respect of your art work at different prices, depending on the extent of their use. Due to the fact that films involve a large number of different copyrights and for ease of administration, copyrights are usually assigned completely and as a whole. Assignment fees in respect of trademarks are generally very high due to the period of use and the importance the trademarks hold for a buyer’s brand and image.

If a client really wants the copyright in your work he or she must be prepared to pay for. Accordingly value yourself and protect your art work.

By Marietjie Botes