Orphan Works is Back! Immediate Help Needed from ALL Artists by 7/23/15 ! ! !

The US Copyright Office wants to hear from artists and others in the art business on how art is being monetized, enforced, and registered under the existing Copyright Act. The information collected from the letters submitted will be used during the Copyright Office purposed five-year pilot program addressing Orphan Works and Mass Digitization. The results from this pilot program will most likely determine what will be included in the new Copyright Act to be sent to Congress for approval. As artists and others in the art industry, we need to tell the Copyright Office how Orphan Works will impact our business if it is incorporated in the new Copyright Act!

Please submit a letter ASAP to the Copyright Office! For information on what to include in the letter and to see an example of a letter, read "Orphan Works - Sample letter to Copyright office" by artist Annie Troe.  

Also view "Artists Alert: From the Illustrators Partnership The Return of Orphan Works Part 2: Artists"Letters" to get links to more examples of letters sent to the Copyright Office.

DEADLINE to submit letters to the Copyright Office is 7/23/15 !!!

• What is Orphan Works?
According to "Copyright Office proposes pilot program for extended collective licensing to address mass digitization" report "Orphan Works are works where the copyright owner cannot be identified or located. As the Copyright Alliance observes, this compromises the ability of a potential user to seek permission or negotiate licensing terms. The legislation would apply to all categories of copyrighted works as well as to all types of uses and users who engage in a good faith diligent search. The Office concluded that existing features of the current copyright system, such as voluntary and licensing agreements, best practices documents or the fair use doctrine, do not sufficiently address the legal uncertainty of the mass digitization of protected works."

"The demand for copyright 'reform' has come from large Internet firms and legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists." is stated by Brad Holland in "The Return of Orphan Works: The Next Great Copyright Act".

• How Orphan Works will Impact Artists
– Brad Holland in "The Return of Orphan Works: The Next Great Copyright Act" states:

"The Next Great Copyright Act" would replace all existing copyright law.
1. It would void our Constitutional right to the exclusive control of our work.
2. It would "privilege" the public's right to use our work.
3. It would "pressure" you to register your life's work with commercial registries.
4. It would "orphan" unregistered work.
5. It would make orphaned work available for commercial infringement by "good faith" infringers.
6. It would allow others to alter your work and copyright those "derivative works" in their own names.
7. It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

– To learn more about the impact on artist work if Orphan Works Act is passed by Congress, view the video by Brad Holland "Everything You Know about Copyright Is About To Change - Brad Holland.

• Conclusion
Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership. It was the teamwork and support of visual artists all over America calling and writing to their congressional leaders that made the difference.

This is the first step in the once again fight to defeat Orphan Works. Please submit a letter ASAP to the Copyright Office!

Make sure you read the comments to this article!!! Some give additional information and some share horror stories about infringement of their work. 

Your comments are welcome. Click on the comments section (below) to write your comment. Note: Some people have a problem in leaving a comment. The most successful method is to comment as Name/URL (your name and website or blog with a "complete" URL address. For example: http://www.joanbeiriger.com/ ).

Art Licensing Editorial: The Truth About Art Licensing Agencies

WARNING! This is not an upbeat article and is depressing because the art licensing industry is like other industries where people sometimes take advantage of others. The purpose of this article is to warn artists that they need to make sure that they are signing a fair contract or at least know the repercussions in signing an unfair one when they agree to have an art licensing agency represent them.

The truth about art licensing agencies is that there are MANY agencies that are honest, professional, have a fair artist/agency agreement (contract)* and work hard to represent their artists. BUT, there are SOME that are unethical, and/or are not professional in dealing with their artists, and/or have unfair contracts, and/or have poor business practices. Sounds alarming, huh? Well, it is! And, that is why an artist needs to do her/his homework before signing with an art licensing agency. Read the following so that you do not make a bad decision and sign a contract that negatively impacts your income and even worse allows an agency to have control of all your art so that you lose your rights to it.

In the fifteen or so years that I have been in the art licensing industry, I have heard many complaints and some horror stories from artists about the agencies that represent them. Unfortunately, those artists with the horror stores were so pleased that an agency wanted to represent them that they did not read the contract closely enough, understand all the terms, or realize that some terms that should be in the contract were missing. The artist’s big mistake was not to acquire information about the agency's reputation and business practices by asking other artists and not having an attorney that is an expert on art licensing contracts look the contract over before the artist signed it.

* The artist/agency agreement is a contract and is referred to as a contract or artist/agency contract in this article.

Common Artist Complaints about Agents
Most of the complaints I've heard about agencies are not as drastic as unethical agencies and unfair clauses in the artist/agency contract but about the lack of communication between the agent and artist, poor business practices, not getting enough or any licensing contracts with manufacturers, and not receiving enough money from the contracts. Some of these complaints were because the artist had unrealistic expectations such as earning a lot of money from each licensee contract. Read below for more information about agency complaints.

• Lack of communication
Lack of communication and not being on the "same wavelength" between persons is a common human foible. It often results in frustration and may be intolerable when working together. Some artists want to be in constant communication with their agent and feel adrift and slighted if the agent does not immediately answer their questions or respond when new art is sent. Other artists realize that agents are busy and will respond as soon as they have time and are not upset when they do not get a quick response. Although, it does not go over very well if the agent does not respond at all. No one like their emails or art to "drop into a black hole" and not know if the agent received it. Note: Some artists find that if they phone the agent they will get a faster response than if they email her/him. Agents may not have the time in their busy day to sit down and write an email but find the time to chat if their artists phone them.

Some artists expect agents to provide art direction, to send them the latest in art trends, and give feedback from the licensee when art is submitted. Or, there are personality clashes where communication between the artist and agent does not work because they are not on the same wavelength. Not all agencies provide art direction and some depends on the artist to keep up with trends. That is why it is important for the artist to talk with the agent before signing with the agency to see if there are any communication problems, if the agency provide the services the artist expects, and how the agent envisions the artists work will be used on products.

Artist Jill Meyer describes the process she went through in selecting an agency in her very informative article "Finding a New Agent." An important part of Jill's process in selecting an agency was talking and asking lots of questions of the agent before considering hiring the agency to represent her. Also important was talking to other artists about the agency and having an attorney familiar with art licensing agree that the artist/agent contract was fair.

• Poor Business Practices
SOME agencies do not have the best business practices. They are negligent in submitting art, do not make adequate follow-ups, do not keep track of art already submitted or licensed to manufacturers, and do not respond to emails from licensees or send signed contracts back to them in a timely manner. Any of these will damage the creditability of the agency. The following are some complaints I have heard from other artists and licensees.

1. Poor method in tracking art
– Some agencies do not keep track of the art they submit to licensees and thus submit the same art time and time again. Licensees are looking for new art; not art that they already have seen.

– Some agencies book keeping abilities are not very good and they do not keep track of the art that have already been licensed. Thus, they are at risk in licensing the same art for the same product to different licensees and breaching the terms of the contract granted to the first licensee.

2. Poor response to queries and return of contracts
Some agencies do not reply to licensee emails or return signed contracts in a timely manner. Art directors appreciate quick responses and it shows that the agent is professional which helps in promoting future business. Also, a slow reply to a query can mean missed opportunities to license and promote art.

3. Poor follow-up
– Some agencies do not follow-up frequently when licensees show interest in art and thus they may lose the opportunity to license it.

– Also, some are poor in following up when payment of licensing fees are late or contracts do not arrive when expected.

4. Poor method in submitting art
Some agencies submit their artist’s work to their entire client list in what I call a "shot gun method" in the hopes the licensee will be interested in some of them. Instead they should be submitting only the appropriate art for each manufacturer. Licensees do not appreciate getting a ton of art that is not suitable to be put on their products and will eventually not open emails from agencies that submit art that way.

• Not enough deals or pay enough
Artists may not get licensing contracts because the agency does not have a list of licensees that is suitable for the artists work. Of course, the agency should never have signed the artist for representation if they did not think they could license her/his work. Or, it could be due to the impact on the licensing industry with the change in consumer spending and also the increase in competition of artists vying for licensing deals. The change in consumer spending has drastically changed the way retailers sell products. Retailers now order lesser products from manufacturers and the shelf life is shorter. Thus, licensing revenue per image is less than it was before the recession struck in 2008. Consequently it is not the fault of the agency to now get fewer and not as lucrative licensing deals for their artists.

Artists and art licensing agencies are struggling to get contracts and bring in revenue. In the article "You Are Not Going to Make It in Art Licensing" art licensing agent Jim Marcotte of Two Town Studios wrote, "Art licensing today is an industry in search of a workable model. The scramble is on - agents and artists who used to make their money by licensing art are now finding ways to collect from (mostly newbie) artists in ways that run the gamut from coaching to holding contests. Some agencies are accumulating artists, hoping that more people earning less money can make up for the reduced sku counts and short market runs. Branding agencies are taking on artists and art agencies are promoting brands, and both are consulting for manufacturers who are buying art worldwide and licensing art only when they have to. It’s a wild time in the biz." Jim's article is a very "tough pill to swallow" but his aim is not to discourage artists so they quit trying to license their art but to energize them by trying new ways to license it. To get Jim’s perceptive on licensing art in today's market, read his article.

Note: I recommend that you read Belgium surface designer Ine Beerten's article "The Big Contest Dilemma" if you are interested in entering a design contest. Ine wrote a really thought-provoking article about contests. She ended her post with "So what do I hope you take away from this post? I hope you think careful when you enter a contest next time, think whether it’s just an easy way for the company to get free artwork and cheap marketing and whether the prizes are truly fair, or if you can really gain something that is actually worth something to you. By entering these bad contests you only help them devaluating your own and other artists’ work!"

Artist/ Agent Contracts
In "16 Art Licensing Agent Agreement Essentials" by licensing consultant J'net Smith, she states that "It’s easy to get excited about the prospect of finally signing with an agent and forget to make sure that the contract is not only fair to both of you, but includes everything you need. . . Don’t accept the first contract you are given without understanding all the obligations and ramifications of each clause. It may be your first and the most important contract you will ever sign."

Artists may interpret the terminology and meaning of legal terms or poorly written clauses in a contract incorrectly. And, if clauses that should be in the contract are missing such as the date and terms specifying termination, the artist may be obligated that the agency continues to represent her/him forever. That is why it is recommended that an attorney experienced in art licensed legislation look over the contract before the artist signs it. It is less expensive to pay an attorney to make sure the contract is fair to the artist than to pay him/her to try to free the artist from a bad contract even if it is possible.

• Unethical business practices and contract terms
What I deem unethical is when an agency does not pay monies due to artists for licensing their art or taking advantage of artists by having clauses in their artist/agency contract that takes control of the artists work and denies the artist usage of their own work.

Several years ago two artists told me that their agencies were not paying them revenue for their art being licensed. Their agents insisted that the art had not been licensed and yet the artists saw their art on products in stores. In one case, the artist was able to get monies owed by hiring an attorney. In the other case, the artist found out that her copyright was infringed upon and the art was illegally used. It is important that artists be constantly looking for their art on products in stores and on the Internet. And, getting their friends to help. That may be the only way that an artist finds out that their copyright has been infringed upon.

In the article "Hot Words to look out for in contracts" art licensing agent Lance Klass of Porterfield's Fine Art Licensing discusses the word "assign" and the consequence when used in any art/agency or licensee contract. He wrote ". . . when you see the hot word "assignment", make certain that you're not assigning the copyright or all reproduction rights to your artwork as a part of the agreement. If you do, it's lost to you forever. Other people will control the reproduction rights to your art, and you'll actually have to ask their permission to reproduce the art that you created."

Lance relates a couple of horror stories that artists endured by signing bad contracts in his article "How to Avoid the Most Common Mistakes in Licensing Your Art". In one example, Lance said ". . . 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". He stated, "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. . . . But 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 human. Just make sure you read every word, and know what it means".

• Unfair contract terms and business practices
Not all agencies have unfair terms in their art/agency contracts but some do. Terms that seem unfair to artists are usually in the contract because of the way the agent decides to operate the agency. For instance, a clause in the contract may state that the agent will make all decisions in licensing the art. That means that the artist has no say-so in what company manufacturers her/his art, will not have the opportunity to approve or not approve the licensee contract or even see it, and cannot approve the amount of royalties or flat licensing fee that will be paid for the use of the art. That is unfair to the artist. But, the artist may trust the agent to do a good job and is willing to sign the contract because she/he wishes to be represented by the agency. What is NOT acceptable is if the artist is blindsided and not aware that the terminology in the clause gives the agency that right. And, that is the reason why an art licensing attorney should be hired to point out unfair terms in the contract before it is signed. Note: Yes, there are agencies that have that clause in their contract.

Below are more contract terms and business practices (may not be in the contract) that may be construed as unfair to artists.

1. Artists do not get to see licensee contracts
A variation on the above unfair term is that an artist does not see the licensee contract but gets to approve or not approve the contract. The agent sends a form to the artist with the basic terms of the deal so that the artist can sign it for approval. Just like the above term, the artist must trust the agent that she/he makes sure that the clauses in the licensee contract is fair.

2. Agencies continues to receive commission after termination
Most agree that the termination clause is the most important clause in the artist/agency contract. In his article "The Artist – Agent Relationship" art licensing attorney Joshua Kaufman states, "The greatest issue of tension and dispute between artists and their agents surround post-termination issues. . . . The issue of how long an agent is entitled to keep receiving its commission after the contracts terminates, is one that is strongly negotiated. Agents of course, wish to be compensated for not only the full term of their contract but for the term of the licensing agreement and of all extensions and renewals. The artist wants to limit the payment to the agent after their contract expires. Agents believe that they secured the contract, they work long and hard, had to wait for their money and should be entitled to their receipts throughout the term of the contract. " Note: Most contracts do give the agency the right to continue receiving commissions from the contracts they obtained for the artist until the contract expires and no renewals are requested by the licensee.

3. Agencies continues to represent the artist after termination
Some agencies have clauses in their contract that allows them to continue representing the artist after the termination of the contract. The representation is for an additional several years after termination and is limited to those licensees that the agency obtained contracts for the artist's work during the term of the contract. There are questions on the legality of this clause according to attorney Joshua Kaufman in his article "The Artist - Agent Relationship". He states "One finds in many agreements prohibitions against dealings by an artist, post termination, with the agent’s clients. First of all there is a question (which depends on which state law applies) whether those clauses are enforceable and to what extent. . . If the agent’s client list is very large, and there is a blanket restriction against dealing with the agent’s clients, and this precluded the artist from doing business or greatly hampered their ability, many states will disallow the restriction."

4. Do not allow any interaction between the artist and licensee
There may not be a clause in the artist/agency contract but some agencies do not allow their artists to interact with licensee art directors. All licensee requests for high-resolution art are sent to the agent who forwards it to the art director. And, all requests for editing of the art go through the agent. This is awkward and frustrating to the artist. It is much easier and faster for the artist to make art changes if she/he works directly with the art director.

5. Artists do not get to approve samples
Not all licensing contracts allow the approval of art on the products before they are manufactured. But if it is in the licensee contract, the agent normally approves the samples and not the artist. That restriction may not be in the artist/agency contract but because of licensee time restrictions it is not usually possible for the agent to ship the sample to the artist for approval.

6. Artists are required to pay part of booth and marketing expenses of the agency
Many agencies do not require artists to pay any of the agency expenses. But, if they do required their artists to help with trade show and other agency expenses it should be clearly spelled out in the artist/agent contract according to art licensing consultant J'net Smith in "16 Art Licensing Agent Agreement Essentials".

Summary
There are many good art licensing agencies. But, do not get blindsided and sign a bad contract. Do your homework and ask agents for recommendations of artists in their agency to talk to and/or look at agency websites for the artists the agencies represent. Select a few artists and find out their contact information from their own website, Facebook or LinkedIn. Either phone or email them to ask questions about the agency. Make sure that you fully understand all the terms in the artist/agency contract. And better yet, hire an attorney that knows the ins-and-outs of art licensing to look over the contract and point out any unfair clauses before you sign it.

For a list of agencies, read "List of Over 50 U.S. Art Licensing Agencies". But, you need to research the agencies yourself because I am not familiar with all of them or their artist/agency agreements (contracts).

Resources:
The above post mentions quotes from the following articles. I recommend that you read these articles because they contain a lot of important information you should be aware of.

• "Finding a New Agent" by licensed artist Jill Meyer

• "You Are Not Going to Make It in Art Licensing" by art licensing agent Jim Marcotte of Two Town Studios

• "The Big Contest Dilemma" by Belgium surface designer Ine Beerten

• "16 Art Licensing Agent Agreement Essentials" by art licensing consultant J'net Smith

• "Hot Words to look out for in contracts" by art licensing agent Lance Klass of Porterfield's Fine Art Licensing

• "How to Avoid Mistakes in Licensing Your Art" by art licensing agent Lance Klass of Porterfield's Fine Art Licensing

• "The Artist – Agent Relationship" by attorney Joshua J. Kaufman

Your comments are welcome. Click on the comments section (below) to write your comment. Note: Some people have a problem in leaving a comment. The most successful method is to comment as Name/URL (your name and website or blog with a "complete" URL address. For example: http://www.joanbeiriger.com/ ).

Art Licensing: Do U.S. artists need a business license to license their art?

Questions often asked by United States artists entering the licensing industry is if they need to have a business license or a seller permit to be able to license their art? There are all types of business licenses/permits such as seller's permit, federal and state business licenses, and city/county business licenses. Each is for a particular purpose. Artists that ONLY license their art may not need a business license. It depends upon the city and state they live in. See below for discussions on the different ones.

• Seller's Permit
A seller's permit (resale certificate) is needed in most but not all states IF a person sells merchandize at retail (to consumers). The number on the permit issued is called a resale number. Artists who license their work to manufacturers are not selling merchandise at retail so they do not need a seller's permit.

And, whether artists who sell to consumers needs a seller's permit or not depends upon the state. Alaska, Delaware, Montana, New Hampshire, and Oregon do not collect sales tax so a seller's permit is not needed when artists sell their work to consumers in those states. To find out information about seller's permits in the different states, go to the U.S. Small Business Administration website. Hint: Artists are not listed as a business type so use General Licensing. And, to find out more about resale certificates, read "What is a Resale Certificate And Who Can Use One?"

– Internet stores
According to Nolo "Despite what you sometimes hear . . . some Internet sales are subject to sales tax, and even when a site doesn't collect sales tax, consumers are technically responsible for remitting any unpaid sales tax on online purchases directly to their state." Also, " If an online retailer has a physical presence in a particular state, such as a store, business office, or warehouse, it must collect sales tax from customers in that state. If a business does not have a physical presence in a state, it is not required to collect sales tax for sales into that state." For more information, read "Sales Tac on the Internet".

• Federal Business License
A person only needs a federal business license if their business is regulated by a federal agency such as alcoholic beverages, agriculture, aviation, etc as shown in "Federal Licenses & Permits". Since art is not regulated by a federal agency, a federal business license is not needed to license art. Note: Artists may be requested to supply their federal number to a licensee so that they can report the revenue the artist received to the federal and state tax boards. In that case, the federal number is the artist's social security number. 

NOTE: Artist Kiffanie Stahle shared the following information.
"One note on the federal tax ID number issue. Even sole proprietors can request a free employer identification number (federal tax ID number) from the IRS to give to licensees. Licensees will then use this number on your 1099s and the IRS will link it to your individual tax return. Thus keeping your SSN a little safer!  Here's the link to obtain an EIN: https://sa.www4.irs.gov/modiein/individual/index.jsp  "

• State Business License/Permits
Whether an artist needs a state business license or permit depends on the state she/he lives in. Some states require any business operating in the state to register for tax-specific licenses/permits whether based in a commercial location or out of the home. Other states may not require any license/permit. To find out what business licenses are required in your state, read "Find Business Licenses & permits".

– Business having employees
The requirements in operating a business with employees is more complicated because the owner probably will need to file for additional permits and file forms such as employer identification number, registration of employees, business income tax statements, etc. Also they must comply with laws on minimum wages, hours, working conditions, safety, discrimination, etc. To find out information about the requirements in different states when having employees, go to the U.S. Small Business Administration website.

– Limited Liability Company (LLC)
It is not required but some artists decide to form a limited liability company (LLC) to protect their personal finances if their art licensing business is sued for copyright infringement or breach of contract. To do so, it must be filed with the Secretary of State's Office in the state the business is operating in. If the business is a sole proprietorship, it does not need to be registered with the state. Note: Many states require a sole proprietor to use their own name for the business name unless they formally file another name as a trade name, or fictitious name. For more information, read "Register With State Agencies".

– Fictitious business name (doing business as = DBA)
Most states, but not all, require that the owner of a business register a fictitious business name. In some states the business name could be considered fictitious even if additional word (s) are added to a surname while other states do not consider it fictitious as long as the surname is in the business name. Filing a fictitious name often involves publishing in a general circulation newspaper the opening of the business with the fictitious name. Note: Unless the fictitious business name is filed, bank accounts with the fictitious business name cannot be opened. For more information, look at your states requirements on fictitious business names. For more information, read "Register Your Business Name".

• City/County Business License
Some counties and/or cities require any business operating within their limits to take out a business license even if the state does not necessitate one. The license usually requires a yearly flat fee or may depend upon the gross amount earned. If the business is home based, it may require a zoning variance with stipulations on not allowing customers to visit or employees to work on the premises. To find out information about city/county licenses in the different states, go to the U.S. Small Business Administration website.

• Reporting Income to IRS and State
For artists that have a thriving art licensing business, know that they need to report the income earned to the IRS. Also, they know to report income to their state unless they live in Alaska, Florida, Nevada, New Hampshire*, South Dakota, Tennessee*, Texas, Washington, Wyoming. But artists that have just started licensing their work may not be aware that ANY income earned no matter how little may need to be reported to the state and MUST be reported to the Internal Revenue Service (IRS). According to IRS "It is a common misconception that if a taxpayer does not receive a Form 1099-MISC or if the income is under $600 per payer, the income is not taxable. There is no minimum amount that a taxpayer may exclude from gross income. . . Taxpayers must report all income from any source and any country unless it is explicitly exempt under the U.S. tax code. There may be taxable income from certain transactions even if no money changes hands." For more information about reporting income to the IRS read, "Reporting Miscellaneous Income". And, read "States Without an Income Tax" for more information.

* Must pay interest and dividend income.

Your comments are welcome. Click on the comments section (below) to write your comment. Note: Some people have a problem in leaving a comment. The most successful method is to comment as Name/URL (your name and website or blog with a "complete" URL address).

Art Licensing: Tips on Registering Art with the Copyright Office by Artist Jill Meyer

Copyrighting your art is important to protect your rights as attorney Joshua J Kaufman points out in his article “Filing Copyrights: How and Why or Just Do It”. But, many artists fail to do it because it takes time, they do not know how to do it, or they feel it is too expensive. Because of the expense, artists are now filing copyrights of their art quarterly as a collection (group). Then when, an image or collection is licensed they register it separately so that they may be awarded more statutory damages if they need to sue for infringement. Joshua mentions in his article how to file for a copyright through the mail. Below are tips by licensed artist Jill Meyer on how to file via the Internet.

Tips to Register Your Images with Little or No Screaming
by artist Jill Meyer
Jill Meyer art & design

Registering images with the US Copyright Office, whether online or through the mail, has always been somewhat of a challenge. I’m going to give you some tips to help make that journey a little easier, and hopefully keep your frustration level low enough so that the necessity to scream is minimal or non-existent.

I can only speak from my own experience, so that is the only perspective you will be reading about in this article. Hopefully you will be able to extrapolate from my experiences and apply that to your own situation.

I use a Mac, and will necessarily be giving you the directions that work for my computer. This post will only be about registering online at eCO (electronic copyright office).

Preparing Images
You will first need to prepare your images for uploading to the eCO website. I do all of my images at 300 dpi in Adobe Photoshop. I batch process* the images with the extension .jpg and I make them 2 inches on the longest side. Then I make a .zip file** of the images so that I can register them as a group. I name the file with the EXACT name I will use to register it. Do not use any apostrophes, ampersands, etc. ($, %, &, *, #) in the name of your file or in the name of the work you are registering. For example, if you are registering a group by number, name it Group 3 and not Group #3.

* “How to Batch Process Files in Photoshop”
** “How to Zip Files in Mac OS X”

What Browser Should You Use?
The eCO site is very particular about the browser that is used, and many browsers will not work on it. If you are not aware of this, you will quickly reach a scream-worthy moment in the process. Don’t ask how I know! I learned the hard way that I need to use Firefox to register, and I need to disable the pop-up blocker as well.

User ID
If this is your first time registering online, you are a new user and you will have to set up your account with a Password and User ID. And, you will have to give answers to some questions that you will be prompted to answer should you forget your password. Do not forget your Password or User ID, once you have them and they have been accepted. Write them down and keep them in a folder (under lock and key if necessary) with your copyright material, so that you will NEVER have to deal with this web site to retrieve or set a new password or user ID.

User ID Requirements
• User names must be at least six characters.
• User names must contain only letters and numbers, not special characters such as apostrophes, ampersands, etc. ($, %, &, *, #)

They have even more requirements for a password. I can hardly wait for you to read all of them, and then figure out a password that will fulfill their requirements. Are you ready?

• Minimum password length must be 8 characters and consist of at least 2 alpha characters, 1 number and 1 special character (but not an ampersand - &).
• A password must have no consecutive repeated characters.
• A password must not include your user name or any part thereof.
• A password must not include the names of a spouse, children, pets or one's own name.
• A password must not include any regional sports teams or players.
• A password must not include any office symbols.
• A password must not include your social security number or any subset of your social security number that is more than a single number.
• A password must not include words that can be found in any dictionary, whether English or any language.
• A password must not be any of the 11 most recently used passwords for the account.

Since they seem to specify everything else, it’s surprising that they don’t require your blood type, your mother’s maiden name and the combination to your safe deposit box!

Follow the rest of the on-screen instructions to set up your account.

If you are the type of person that reads instructions before the fact, then by all means read the eCO FAQs, eCO Tutorial and eCO acceptable file types.

Logging In
It is really a good idea to Log In when the site is online and available, which is most of the time. But, just to be sure you keep your frustration level to a minimum, I’ll make you aware that they are usually available 24 hours a day, except for routine maintenance every Sunday from 12:00 midnight to 6:00 AM Eastern Time.

Registering
You will be registering work in Visual Arts. As you complete each necessary section, a box on the left of the screen will check off that section to let you know it has been completed. The individual screens will lead you on to the next section of the application.

While the site is has been regularly updated and simplified, it is still difficult. But, progress is progress. One of the new (to me) features is the “Add Me” button. Instead of having to continually write in your name and/or address information, you can just click on the “add me” button, and the information is copied in automatically. When you have completed filling in all of the information required in a section, you click on ”continue”. One would think that this would bring you to the next section, but it does not! It brings you back to the screen for the beginning of that section, and to move to the next section, you need to press continue once again! After doing this 3 or 4 times, it can be maddening! This is a feature that I find useless and frustrating. However, I have to factor in the knowledge that the entire site used to be like this and much worse, so I try to stay calm and deal with it.

Breathe!!!

When you have finished the application, you will need to pay before you upload your .zip file of images. DO NOT use any spaces between the numbers on your credit card. Trust me on this one, and omit the spaces.

After you have paid you will be prompted to upload your images. Be sure the .zip file has exactly the same name as the group you are registering. Wait until the upload is completed and then follow the directions to complete the application. You should immediately get receipts and confirmations in your e-mail from the US Copyright Office. The certificate will eventually arrive by snail mail.

Congratulations, you have just registered your images with little or maybe no screaming! Take a final deep cleansing breath. Namaste.

Your comments are welcome. Click on the comments section (below) to write your comment. Note: Some people have a problem in leaving a comment. The most successful method is to comment as Name/URL (your name and website or blog with a "complete" URL address).

LinkedIn Takes Harassment & ID Theft Seriously! And so do other online forums.

Most people that sign-up on the professional network LinkedIn (LI) probably do not read the user agreement before they become a member. It explicitly states certain criteria that are not allowed when using LI and may cause LI to "restrict, suspend, or terminate the account of any Member who abuses or misuses the Services including abusing the LinkedIn message services and creating multiple or false profiles." It also prohibits harassment. Below is an abridged list of what is expected of LinkedIn members. Note: Not included in this list is many others including copyright infringement because they are outside the realm of this discussion.

LinkedIn expects its members to:
• Be Real. "Unlike some other online services, our members need to be real people, who provide their real names and accurate information about themselves. It is not okay to provide misleading information about yourself, your qualifications or your work experience, affiliations or achievements on LinkedIn’s service." Members are not allowed to:
– Create a Member profile for anyone other than a natural person.
– Upload a profile image that is not your likeness or a head-shot photo.
– Use or attempt to use another's account or create a false identity on LinkedIn.

• Be Professional. "We ask our members to behave professionally by not being dishonest or inappropriate. We acknowledge the value of discussions around professional activities, but we do not want you to use LinkedIn to shock or intimidate others. . . ." Members are not allowed to:
– Act dishonestly or unprofessionally by engaging in unprofessional behavior by posting inappropriate, inaccurate, or objectionable content to LinkedIn.

• Be Nice. "LinkedIn shouldn’t be used to harm others. It is not okay to use LinkedIn’s services to harass, abuse, or send other unwelcomed communications to people (e.g., junk mail, spam, chain letters, phishing schemes). . . ."

Case Story of Misusing LinkedIn Policies on Art of Licensing group
Recently a series of blog articles "Just launched a new series of blog posts about Legal in art & licensing with artist Jill Meyer as my first guest writer" was announced on LI Art of Licensing group. The blog article titled "Inspiration or Infringement" discusses artist Jill Meyer's experience with copyright infringement and the ramifications to artists that knock-off other artists work. An artist (Jennifer Bradley) posted a long comment on the Art of Licensing group and suggested that Jill show visuals of her art and the infringed art. In a later comment, Jennifer posted that it is a total fabrication that someone stole Jill's art. As the thread (comments to the post) continued Jennifer's comments became increasing abusive even though other artists stated they saw the infringed art and agreed that they were indeed knock-offs of Jill's work.

A few days after the start of the harassment, I joined the team of artists that were trying to reason with Jennifer. The following is my comment to the post describing what I discovered. ". . . I prefer to contact people via email instead of through LinkedIn so I use the LinkedIn profiles to get email address' usually by finding them on a persons website. When I wanted to contact artist Jennifer Bradley about some of her comments that she posted, her profile did not list her website so I Googled her name and when that didn't work I searched by her LinkedIn profile photo. I was shocked when I found her photo was linked to a person with another name and who is not an artist. THAT IS IDENTITY THEFT! I don't know why Jennifer Bradley did not use her own image in her profile but using someone else image is unethical and may be illegal!

By working together, our team was able to find the individual responsible for the harassment and who stole the victim's identity. It was reported to LI fraud department and they promptly removed Jennifer Bradley's profile so her comments could no longer be posted.

Consequences in Misusing LinkedIn Policies
LinkedIn takes abusing their policies seriously. They have terminated member accounts when members fail to post their image on their profile. And they also terminate members when they harass other members or create false profiles. Some people often use false profiles to comment on blogs and forums for various reasons. They also use false identities to comment on internet stores to endorse their own products in an attempt to increase sales. But false identities will not be tolerated on LinkedIn, Facebook and other forums as shown in the following section on Identity Theft is Illegal.

So what is the big deal? So what if you are kicked-off of LinkedIn by misusing their policies? Well, the real issue is the integrity of the individual who stole an identity like the Jennifer Bradley case described above. During the investigation of the case, comments on numerous forums questioned if this person was also stealing art and representing it as her own. After all, she was dishonest in stealing an identity. If it becomes known publicly the name of the artist who stole the victims identity and used it to harassed another artist, it will definitely impact her ability to license art. Manufacturers expect honesty and integrity from artists just like artists expect it from them.

So this is a warning for those who use a false identity(s) on LinkedIn. DON'T! You may get caught and pay the consequences.

Identity Theft is Illegal
Some people mistakenly think that using a false profile is not really identity theft and is not illegal. And, anyway no one will sue you because it costs too much, right? Wrong!

Dana Thornton of New Jersey was prosecuted in 2011 for creating a false Facebook page in her ex-boyfriends name who is a police officer. She posted comments portraying him as using drugs, hiring prostitutes and having a sexually transmitted disease. The judge ruled against her because Thornton's ex-boyfriend is a narcotics officer. Assertions of criminal activity can ruin his career. For her crime, Dana was given probation if she successful completes a one year PPT program which requires her to regularly see a probation officer, complete 50 hours of community service and undergo a psychological evaluation. The Dana Thornton case was highly publicized and you can imagine what this did to her reputation. Read the following for more information "Making a Fake Facebook Page is Identity Theft", "Nasty fake Facebook pages not OK -- that's ID theft, judge says", "Belleville woman accused of creating fake Facebook page to mock ex-boyfriend gets probation."

Also read a pdf formatted fact sheet about social media online "Identity Theft".

Forums are cracking down on harassing and identity thefts. For instance, the popular forum Facebook does not permit impostors and bullying as shown in Facebook Statement of Rights and Responsibilities. Breaking the rules will remove you from the forum. This will affect not only connecting with friends but could affect business' if Facebook is used to drive customers to websites or other online business websites like Etsy and Zazzle.

Be Proactive
LinkedIn groups are for professionals and members should act like professionals. Help protect members in LinkedIn groups from harassment and be proactive. If you are being harassed or you see others that are being harassed report it to the group moderator so that LinkedIn fraud department can investigate and remove the offender if it is warranted. Likewise be proactive on other forums and report any bulling to moderators. You can make a difference!

Note: It looks like LinkedIn and social networks are being used for stalking besides harassment.  Read "LinedIn Stalker Concerns Prompt Petition to Add Blocking Feature."

The comment section to this article has been closed and all comments removed.  While my policy is to show all viewpoints on my posts, the comments on this thread became antagonistic and threatened to reveal private communications that may be harmful to all involved in a private dispute.  Artists work in a professional industry and should act like professionals.

New Art Licensing Magazine Published – "Art Licensing Art News"

With regard to my prior references in this article to the new Art Licensing Art News (ALAN) magazine, Art Licensing International (ALI) has advised me that it is NOT the publisher of the magazine.  I also received a post from artist Jenny Newland represented by ALI explaining the content of the first issue of the magazine.  Below is an excerpt from her post:

"I am responsible for the content in the Art Licensing Art News Magazine. My daughter Jennifer Nixon (Editor In Chief) and I (Graphic Designer), collaborated with Art Licensing agents with some of the featured stories in the magazine and our intent was simply to let everyone out there know about Art Licensing and their managment staff, and to showcase many of their artist's artwork. We had NO intentions of impling that Art Licensing International were using this publication to take advantage of artists. They have never done that to me or any other artist I know. Simply the magazine was intended to celebrate their artist and the artist's work. I'd like to address the "fine print" statement in the magazine. It should have never been written and I apologize for publishing the magazine with a legal statement that was not reviewed by a legal professional. It was a stupid mistake on my behalf. I take full responsiblity of the mistake and I am sorry it caused such an uproar."  

You can read Jenny Newland's full post in the below comment section of this article.

Note:  As is the case for submitting material to any publisher, artists who are considering submitting material to ALAN are still advised to carefully read and make sure that they understand the submission rules posted in the magazine before submitting any materials.

Below is an edited version of the original article.

This first issue of Art Licensing Art News features ALI artists and SURTEX news and plan in future editions to have articles on what is going on in the art world, what is hot and what is not. On page 8, they are soliciting magazine readers for articles of their own story, photo, recipe, tip or other submission. BUT, make sure that you read the entire submission guidelines. The section called "The fine print" states that "By submitting material for publication, you grant Art Licensing Art News, subsidiaries, affiliates, partners and licensees use of all material, including your name, hometown and state. We may modify, reproduce and distribute it in any medium and in any manner or appropriate place. We may contact via phone, e-mail or mail regarding your submission."

I interpret the statement to mean that you give ALAN broad rights to use your submitted material, including any artwork shown to illustrate articles, in any manner it chooses. It also gives ALAN the right to change and reproduce anything submitted and to use anything in the submission for any of their own purposes.

After viewing "The fine print" submission statement, intellectual property attorney David Koehser who practices in art and design licensing stated, "Based on the statement, anyone submitting work is granting the recipient a nonexclusive license to reproduce and distribute the submitted work, without restriction. This could include reproduction and distribution in print, electronically, on merchandise, in advertising (for the magazine or for other goods or services) or otherwise. The recipient (ALAN) also gets the nonexclusive right to modify the work, so they could make any changes that they choose to make, including deleting elements, changing colors, adding other material, changing the meaning or message, etc. This grant of rights is nonexclusive, so the artist would remain free to grant the same rights on a nonexclusive basis to others, but in reality no one is likely to be interested in licensing works under a nonexclusive license, especially if those works have already been published elsewhere and if the prior licensee has what essentially amounts to an unrestricted license to use and re-use the works."

Your comments are welcome. Please click on the comments section (below) to write your comment.

There are some interesting comments posted about this article.  Make sure that you read them.

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.

Your comments are welcome. Please click on the comments section (below) to write your comment.

Adobe Acrobat / Reader Tip: How to Create a Certified Digital Signature

Electronic signatures on documents are legal in most countries including the US. And if the signature is certified and the document unchanged after it was signed, the more likely it will be trusted to be authentic. Adobe Acrobat and Reader are the predominate software that allows a person to sign a .pdf file with a certified digital signature. Read "Art Licensing: Using Certified Digital Signatures in Contracts" for more information on certified digital signatures, certified certificates, what requirements makes digital signatures legal, and why digital signatures created in Adobe Acrobat and Reader conform to legal requirements and gives assurance that the documents are authentic.

There are three steps to create your own personal certified digital signature in Acrobat and Reader* (version 8 and later).
1. Either scan a handwritten signature into the computer or write the signature with a digital tablet/pen in graphic software.
2. Create a digital ID with a password. The password will be used each time a document is signed.
3. Configure how the signature appears on the document by opening the signature appearance window to select the graphic and information you wish to appear with the signature. Below are instructions on how to do these steps in version 10 of Acrobat and Reader.

These instructions may be long and seem complicated but they are really easy. Once the signatures, digital ID and look of the signature (appearance) are created, certified digital signatures can then be applied to .pdf files with a click and drag of the mouse.

* Adobe Reader .pdf file cannot be signed with a digital signature unless the Usage Rights were enabled when the .pdf file was saved by Adobe Acrobat. Read the enabling Usage Rights for Adobe Reader with Adobe Acrobat second at the bottom of this article.

Creating Signature Graphic File(s)
A signature can be handwritten, scanned as a .jpg file, and placed into graphic software such as Adobe Photoshop or it can be created with a digital tablet and stylus while in graphic software. The signature then needs to be saved as a .pdf file.

Or the signature file can include a logo or a photo of the owner of the signature. The photo adds more authenticity to the signature. It can be created in Photoshop and saved as a .pdf file. The example at the top of this article shows this type of certified digital signature. Note: An actual photo of a person and signature should be used but for illustration purposes I used a drawing of a person and a font to type the signature.

Creating a Digital ID in Acrobat
1. Open a .pdf file in Acrobat and select "Tools" at right top of Acrobat panel to open the tool bar.
2. Select "Sign & Certify" and then "More Sign & Certify"
3. Select "Security Settings" in the pull down menu to open the "Digital IDs" window. See example A.
4. Click on "Add ID" at top of window to open the "Add Digital ID" window, click on "A new digital ID I want to create now". See example B. Then click on "Next >" button.
5. In the new window enter the name of the signee, organizational Unit (optional; example = artist), Organizational Name (optional; example = Fun Art), Email Address. Note: The key Algorithm (code that secures the data) default is 1024-bit RSA but Adobe literature states that 2048-bit RSA is more secure. See example C. Then click on "Next >".
6. In the new window enter the file location on your computer where you want the digital ID filed, and assign a password to protect the digital ID data. A password with a combination of numbers and lower/upper case letters give a better rating. The password will be required every time a document in Adobe Acrobat is signed with a digital signature. See example D.
7. Click on "Finish" to go back to the Security Settings window. The digital ID is now listed in the window. Click on "close". Note: More than one digital ID can be created for different uses or persons.

Creating a Digital ID in Reader
Open a .pdf file in Reader and choose Edit > Protection > Security Settings to open the "Digital IDs" window. Then follow the same steps used in Acrobat (#4 - 7) for creating a digital ID.

Configure the appearance of the digital signature in Acrobat or Reader
1. Open a .pdf file in either Acrobat or Reader. Select "Preferences" under the word Acrobat (Command + Comma) to open the preferences window.
2. In the Preference window select "Security" to open the "Digital Signatures" window.
3. Check the box for "Verify signatures when the document is opened" and for "View documents in preview document mode when signing". See Example E.
4. Select the "Advanced Preferences" in the upper right of the window. In the "Digital Signatures Advanced Preferences" window select "Creation."
5. Check "Include signature's revocation status when signing", "Show reasons when signing", and "Show location and contact information when signing." See example F. Then press "OK" to go back to the Preferences window.
6. On the right side of the "Appearance" box press the "New..." button to open the "Configure Signature Appearance" window.
7. Name the appearance in the "Title" box.
8. Click on "Imported graphic" button in the "Configure Graphic" section and import the .pdf Graphic of the signature from your computer.
9. Click on the text items in the "Configure Text" section that you wish to appear in the digital signature. See example G. Click on OK to go back to the "Preferences" window.

You can create multiple appearances that can be used for different purposes. Do steps 6 through 9 (above) to create another appearance. You have the option to choose which appearance you wish to use when signing a document. See example H.  Example I shows the two newly created signature Appearance names.

Applying Digital Signatures to documents in Acrobat and Reader
A digital ID can be created in Adobe Reader but as mentioned above a person cannot apply a digital signature to the document in Reader UNLESS the .pdf file Usage Rights was saved by Adobe Acrobat. A person can tell if the usage rights was saved if the Extended pull down menu is listed at the top right of the Reader window (next to Comment). To learn how to enable Usage Rights for Reader, see the section below "Enabling Usage Rights for Adobe Reader with Adobe Acrobat".

To sign the document in Adobe Acrobat with a digital signature
1. open Tools > Sign & Certify.
2. Click on the Sign Document. Then click and drag a rectangle box on the area in the document that you want the digital signature to appear. If a message appears that says "This document contains rich content that . . . " click on Continue. A grayed out area appears on the document.
3. Click on "Sign Document" at the top of the window. After a pause the "Sign Document" window appears.
4. Select a "Digital ID" in the "Sign As" space, enter the password for the Digital ID, select the appearance you want, and enter any additional signature information. Press Sign and a "Save As" dialog box appears. Change the name and press "Save" OR simply press "Save" to save the file with the Digital Signature. If another signature is needed and the person only has Adobe Reader the file should also be saved with Usage Rights. See the section below on "Enabling Usage Rights for Adobe Reader with Adobe Acobat".

To sign the document in Adobe Reader with a digital signature, the file must have the word Extended (next to Comment) at the top of the window. If Extended is missing, the file does not have Usage Rights and a digital signature cannot be applied to the document.
1. Click on Extended to open the menu and then click on Sign Document.
2. Follow the on-screen instructions to create and place the signature on the document.
3. Then follow step 4 for signing documents in Acrobat. When the file was saved after signing the document, the Usage Rights were also saved and Extended is still enabled. Thus, additional persons can sign the document in Reader. Caution: If you save the file by selecting File > Save As > PDF the Usage Rights will be lost and no more signatures will be allowed.

Enabling Usage Rights for Adobe Reader with Adobe Acrobat
In Adobe Acrobat the Usage Rights can be enabled by selecting File > Save As > Reader Extended PDF > Enable Additional Features. When the file is opened in Reader the Extended pull down menu is enabled and a digital signature can be applied to the document.

Summary
To apply a certified digital signature to a .pdf file a person must first create a digital signature, then a Digital ID, and finally an appearance on what information is included in the digital signature. The originator of the document or the first person that applies a digital signature must own Adobe Acrobat. That person must save the file with Usage Rights enabled if other persons that need to sign the document only have Adobe Reader.

Your comments are welcome. Please click on the comments section (below) to write your comment.

Licensing Art - There is no such thing as a typical deal.

Every licensing contract is unique. There is NO typical deal (contract, agreement) in art licensing because it depends upon the manufacturer, industry, products, the notoriety of the artist, etc. which affects the terms and payment. Also negotiations between the property owner (or representative) and licensee (manufacturer) affects the contract.

Licensees that often offer licensing deals to licensors (property owners /artists) normally have their own contracts that they want licensors to sign.. A manufacturers that is new to licensing or infrequently offer licensing deals often ask the licensor to supply their own contract. So it is wise for every artist to have a contract before it is needed. Hire an intellectual Property (IP) attorney knowledgeable about art licensing to create a generic licensing contract that can be customized for each licensee. Also hire an IP attorney to review contracts before accepting ones offered by licensees especially if the deal involves a large amount of art and/or multiple SKUs.*

*SKU (pronounced skew) means a stock-keeping unit and is used by retailers to keep track of individual items for inventory.

If you do not want to spend the money to hire an attorney to look over a contract, think again. Contracts can be complicated. Ideally the contract should benefit both licensor and licensee. But missing terms, placement and incorrect use of words, rights given to the licensor at the beginning of the contract but later taken away with confusing terminology can make a big difference in the contract and ultimately benefit the licensee and not the licensor. Don't be foolish and risk losing revenue or even your art by failing to hire a reputable art licensing IP attorney. Read "Hire a Lawyer - but Which One?" for information on hiring lawyers that specialize in art licensing.

Contract Terms
Below are comments about some of the terms in a contract. Also read "The legalities of Licensing" by attorney Joshua Kaufman for information and definitions of terms. Note: This article was written in 2004 and amounts stated for royalties etc. are no longer accurate.

• Advance: A non-refundable advance payment against royalties to the licensor is sometimes given when a contract is signed. It shows that the licensee has faith that licensors art on their products will sell. In the past, advances were often given but recently there are much fewer. Advances can range from a low $100 per image to $30,000 or more for multiple images and/or SKUs in a product line.

• Artwork: Contracts should list the art that is being licensed. The contract should not state or infer that all the licensors artwork is being llicensed.

• Exclusivity: Some licensees want to have an exclusive arrangement with the licensor. That way the licensor does not license their unique work to the licensees competition. Usually this is when the licensee wants to introduce a large line of art by the licensor. An exclusive arrangement could be beneficial to the licensor if the licensee markets the art, has a large customer base, and continues to license more art. It is not beneficial to the licensor if the licensee only wants to license a few designs because then other licensing opportunities are lost.

• Guarantee: Guarantees on the monies to be earned during the length of the contract are now rarely offered to artists unless they are a well known brand with a proven track record in being able to sell products with their art.

• Length: The length of the licensing agreement depends upon the type of product, how long it takes to manufacturer and get to market, and how long the manufacturer anticipates that it will be sold. Most contracts last two to three years.

• Payment: There are three basic types of payment agreements in the licensing industry (on-demand, flat-fee and royalty). Licensors and licensees agree that each have their place in licensing art. They are discussed below.

• Samples & Sample Approval: Samples of the product are not always offered to the licensor especially if the product is produced only when ordered by the client. Sample approval by the licensor before the products are mass produced and sold to retailers is not always given. In fact, licensor sample approval is not possible for many licensees because of tight scheduling in producing the products and shipping to retailers.

• Territory: The territory of the contract is usually United States or North America with additional countries listed separately. Listing world-wide as the territory is unwise if the licensee does not sell their products world-wide because it limits the potential of licensing the art to other countries.

On-demand Payment
This type of payment means that the licensee does not manufacturer the product until it is ordered by a client. Thus the licensor may not receive a fee if no product is ordered. It allows the licensee to secure the use of art without investing in it. A quarterly royalty rate is the fee normally given for this type of payment. The pros for the licensor is the art gets visibility which MAY result in sales. The cons for the licensor is that the art is not available for licensing of the same product (unless it is non-exclusive) during the time of the contract with no guarantee that the product will ever be manufactured and sold. It is up to the licensor to determine if the visibility and the hope that the licensee's clients purchase the products out weights the cons. Unfortunately this type of payment is becoming more common.

Flat-fee Payment
A licensing flat-fee (usually just called flat fee) gives the artist all the benefits in a licensing agreement but instead of getting royalties the artist gets a one time upfront fee that MAY range from $500 to $2000 per SKU. A licensing flat-fee is usually offered by a licensee that does not want to be bothered by tracking sales of licensed art on products or does not have an established bookkeeping system to manage royalties. The cons to this type of payment is that the artist may lose revenue if the product is popular and has multiple printings. The pros is that the payment is made up front instead over a period of years or not at all if the product is not made or does not sell. Some licensors recommend taking this kind of deal if the licensee does not have a large customer base or if the theme of the art is a fad and retailers may not order and reorder enough products. Note: When you hear the term "flat fee" in the licensing industry do not confuse it with the term "flat fee" used by some illustrators and artists. Flat-fees in that case means selling all rights to their work including the copyright. In art licensing, flat fee means a one time payment in a licensing agreement.

Royalty Payment
Receiving royalties is usually the choice of payment for most licensors because the most revenue may potentially be made with this type of payment method. But the licensor takes a chance that the product(s) will sell well. If they do not sell well, the licensor may not make any revenue or very little. I have heard that one artist only made $25 for one image during the two year length of the contract. Another artist made "many" thousands of dollars in the same time period.

Every licensee offers different royalties depending on the type of products they sell and are paid quarterly. The average art licensing royalty is in the 4-6 percent range but can be larger depending on the product and how well known the licensor. Royalty rates can be found in the following publications.

"Graphic Artist's Guide Handbook of Pricing and Ethical Guidelines" (published September 29, 2010 - cost $26.39) This publication can be read at some public libraries or purchased. It includes the pricing for many kinds of art and illustrations and includes royalty rates for "some" art licensing industries.

"The Licensing Letter Royalty Trends Report" (2010 edition - cost $319.00) This is a comprehensive report on royalties for the entire licensing industry including art licensing. Note: I have not purchase this report so I do not know how much information it has on the art licensing industry.

When deciding on whether to sign a contract or not, do not just judge it only on the offered percent of the royalties but on all the terms. Also find out how large the licensee customer base, licensee estimate on number of products sold, and if an advance is offered. At first glance a six-to-eight percent royalty may sound better than a four percent royalty. However, a four percent royalty deal for products selling to big box retailers with a huge number of stores could yield ten times the revenue that a six-to-eight percent royalty deal for products sold to a modest amount of gift stores.

The actual calculation on how royalties are paid differ from licensee to licensee and the terminology in the contracts can be very confusing. Royalties are not often based on the wholesale price of the product but on the net price that can include discounts, shipping etc. That is another reason why an attorney should review contracts before they are signed by the licensor. Read "Royalties Rates: Not as simple As you may think!" by attorney Joshua Kaufman to find out more. Note: This article was written in 2002 and amounts stated for royalty rates are no longer accurate.

I believe that knowledge is power. Learn as much as you can about licensing contracts. Become familiar with what should be included in them and read the articles linked to this post so that you are aware of the pitfalls before signing a contract. And always be willing to negotiate a contract that is not beneficial to you.

Comments are welcomed. Please click on comments and write them in the comment window at the bottom of this article.

What is Fair Use?

During the last year, there has been a lot of press on what is fair use in art, photography, music and the written word. Fair use is a very complex concept because the law does not provide clear guidelines on what is fair use and what constitutes an infringement. Unfortunately many people believe the "old-wives-tale" that all you need to do is change art a certain amount and you don't have to worry about getting sued. However, what is allowed in fair use is more complicated than that and as attorney Joshua Kaufman says in his article Don't be a Copycat, "There’s no simple, firm guideline as to how much you have to change from one work to another to avoid infringement. Such statements as "All you have to do is change a little bit," "5 percent," "20 percent" and so on have no support in the law. Ignore them. The test for copyright infringement is whether the two works are substantially similar. Substantial can be looked at in two ways: quantitatively and qualitatively. Not only does the legal system look at the amount of material copied, it also considers the importance of the portions copied. . ."

Artist Shepard Fairey found out the hard way when he used a photograph of Barack Obama taken by Mannie Garcia for Associated Press as a basis of art for a campaign poster. His legal troubles are ongoing and will most likely continue for years. Read "AP And Shepard Fairey Settle Lawsuit over Obama Image; . . . " for more information on the lawsuit.

So the moral is to make sure that you have permission to use photography or art that has been created by others before using it in or even as a basis of your own art. Or better yet, don't use other persons work in your art.

Related articles:

"Is Fair Use Really Fair?" by attorney Samuel Lewis

"How Different is Different Enough" by attorney Joshua Kaufman

Resource: Legal Information Blog

A great resource for up-to-date legal information is on attorney Elizabeth Russell's "Art Law For Everyone" blog. Elizabeth's blog covers copyright and trademark issues such as registering copyrights of multiple works together, legal information for website owners, why register your art with the copyright office, understanding lawyers, using work of U.S. Government in your art, explains what published work means when filing for copyrights, and much more.

Note: Another source of legal information with over 50 articles is on attorney Joshua Kaufman's site. See "Resource: Legal Information for Artists & Photographers." Also check-out the article "Hire a Lawyer - but Which One?"