Art Licensing: Using Certified Digital Signatures in Contracts

In the past, all kinds of documents such as licensing contracts and artist /agent agreements were signed by hand and sent through the mail. And when time was of essence they were signed and FAXed. However, there could be a potential problem in signing documents by this method because there is no way to tell if the documents were altered or the signature(s) forged unless the document was scrutinized by a forgery expert. Now with the proliferation of computers and use of the internet, documents are often sent back-and-forth via the internet resulting in even more possibilities of document and signature tampering. Using certified digital signatures on documents are a way to avoid these problems.

What is a certified digital signature?
A certified digital signature establishes that the signature is unique to the person signing it, can be verified, is under the control of the person using it, shows the signees consent in signing the document and it has not been altered after it was signed. Certified digital signatures can be verified by third party public key cryptography (PKC) companies that produce digital certificates or can be created by individuals with their own personal digital signature. PKC certificates has a greater degree of verifiability than one created by individuals that require additional steps to verify the signee. PKC certificates are similar to signatures being notarized. The companies that supply PKC certificates are authorized by a state certification authority to keep track of whom is assigned to a certificate, verify their validity, and track revoked and expired certificates. Note: In my opinion, going to the expense in using a PKC system to certify a digital signature is probably not needed for most contracts used in art licensing. A certifiable digital signature created by an individual should be sufficient to verify that the signature is authentic. However, I am not an attorney and if you have any questions about digital signatures you should consult an attorney to get a legal opinion.

There are many software packages that allow a person to use an electronic signature, a certified digital signature, or a PKC certificate. The most dominate software is Adobe Acrobat and Adobe Reader for .pdf formatted files. Note: The example at the top of this article was created with a font (not recommended) instead of a handwritten signature and applied to a .pdf file in Adobe Acrobat.

Certified digital signatures in Acrobat and Reader
A digital signature in Adobe Acrobat or Reader is more than just a signature. It also includes the date and time signed. It gives the options to include the reason why it was signed, the location, and business name. Also the digital signature does not have to be just a copy of a handwritten signature but could include a photo of the signer with the signature to give additional authenticity.

A person can create their own personal certified digital signature in Acrobat and Reader* (version 8 and later). Note: A person cannot sign an Adobe Reader document with a digital signature unless the .pdf file Usage Rights has been enabled when saved with Adobe Acrobat.

• The first step in creating a certified digital signature is to either scan a handwritten signature into the computer and save the file as a .pdf or write the signature with a digital pen in software such as Adobe Photoshop and save it as a .pdf file.
• Second, a digital ID is created by entering the name, organization (if wished), email address, location on the computer where the ID is stored, and password. The password will be used each time a document is signed to give complete control to the person using the signature.
• Third, configure how the signature appears on the document by opening the configure signature appearance window to select the graphic and information you wish to appear with the signature.

Once a signed document is open in Acrobat or Reader the document is checked to make sure that it was not altered since it was signed. If it was, a message appears that states that the document has been altered. Clicking on a valid certified digital signature in the document results in the opening of a validation window stating the document has not been modified since the signature was applied, the document is signed by the current user, and the signing time is from the clock on the signer's computer.

A tutorial on creating certified digital signatures in Adobe Acrobat and Reader can be found in "Adobe Acrobat / Reader Tip: How to Create a Certified Digital Signature". Note: Older versions of Reader before version 8 will not show certified digital signatures. To view them, download a FREE current version of Reader from adobe.com website.

Are electronic/digital signatures legal?
Applying an electronic/digital signature to contracts and documents and sending it via the internet is legal in the United States (since October 1, 2000) and other countries as long as their e-signature laws are followed. In the U.S. every state has at least one law concerning e-signatures but it is the federal law (ESIGN Act) that takes precedence over state laws. It provides that electronic signatures and records are just as good as their paper equivalents. And thus they are subject to the same legal scrutiny of authenticity that applies to paper documents.

Showing that an electronic/digital signature is authentic is very important. Even if it is legitimate it could be tossed out-of-court if the judge thinks that the signature process does not provide the appropriate level of assurance. Therefore, the higher the assurance methods used in an electronic/digital signature the most likely it will be accepted. Adobe Reader and Adobe Acrobat provides those qualifications when a certified digital signature is used.

Below are links to more information on the importance in proving the authenticity of electronic/digital signatures and electronic/digital signature law in various countries.

• "This is legal, right?"

• "Digital signatures and law"

Summary
Electronic signatures are legal in many countries but the greater the assurance that they are authentic the more probable they will be accepted. Therefore, it is advisable to either use a certified certificate provided by a licensed PKC company or a customized certified digital signatures created by the individual signing the documents as discussed in this article. It is also advisable to use the certified digital signatures on documents in software that provides the security and proof of authenticity that Adobe Acrobat and Reader gives.

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