Licensing reproductions

1 Using the Licensing reproductions checklist

If handled sensibly and professionally, licensing can be lucrative for artists, designers and illustrators. But for it to be successful a good understanding of the licensing process is essential.

The following checklist has been devised as a tool to help users understand the purpose and content of a reproduction license.

The checklist takes the form of a series of subject headings below which are a number of questions to consider. Further explanation of the issues relating to each question can be opened and closed by clicking the icons

2 Purpose of a reproduction license

A reproduction license can only be issued by a copyright owner (normally the artist). It permits a gallery, agent or publishing company to reproduce a piece of work within agreed limitations and for agreed remuneration.

3 Right to grant a license

  • Is the artist the first owner of the copyright when the work was created? Note: Most licensees will want the assurance that the work is original (meaning not knowingly copied from someone else's work) and that the artist owns the copyright and therefore has the right to grant the licence. If an artist created the work in the course of their employment, the employer will own the copyright. For commissioned work created after August 1989, the artist not the commissioner owns the copyright.
  • Has the artist already transferred the rights to someone else? Note: If the artist (copyright owner) has already sold or granted an exclusive licence to reproduce the work, they may be prevented from granting a later licence for the same work.

4 The parties

  • Who are the parties to the agreement? The agreement should include the name, address and contact telephone numbers of both the copyright owner (usually the artist) and the licensee (usually the gallery/agent/publisher). All parties should notify the other immediately on a change of address or contact number.

5 The work

  • To which of the artist's work does the license apply? Note: The agreement must clearly identify the work/s in question by providing full details of the work/s to be reproduced including the title, media, size and date.

6 Commissions

  • Has the work to be reproduced been commissioned? For commissioned industrial design work, the commissioner (not the artist) will own the registered and unregistered design rights unless they are transferred to the artist in writing. However the artist will own the copyright.
  • What is the delivery date/s for preliminary artwork/roughs?
  • What is the timescale for approval of the preliminary artwork/roughs?
  • Will approval of the preliminary artwork/roughs be given in writing?
  • How many roughs will be allowed for in the agreement before additional payment to the artist is required?
  • Who is responsible for the cost of the safe return of original artwork and roughs? Note: It is usually the licensee's responsibility to return all artwork including roughs promptly and in good condition. Artists should acknowledge acceptance of the return by signing for the delivery.
  • How will the artist be reimbursed for any work that is lost or damaged?
  • Will the artist be paid a reject fee if the client rejects the commissioned work? If the commissioned work is rejected by the client because it is unsuitable or unsatisfactory, 25% of the agreed fee is usually payable if rejection takes place at the roughs stage and 50% if rejection takes place on delivery. On rejection the ownership of all rights should revert to the artist.
  • Will the artist be paid a cancellation fee if the commission is cancelled? Note: If the commission is cancelled by the client, 25% of the agreed fee is usually payable if cancellation takes place before the delivery of roughs, 33% if cancellation takes place at the roughs stage and 100% if cancellation takes place on delivery. On cancellation the ownership of all rights should revert to the artist.
  • Who will be responsible if the products the licensee is making and selling are poorly made and/or injure someone? The licensee is expected to accept liability for any defects and to take out product liability insurance.

7 Extent of the license being granted

  • In what forms may the work be reproduced? (For example, greetings cards/wrapping paper, poster, postcard, calendar, book, magazine, printed advertisement, website, CD Rom). Designs for greetings cards, wrapping paper and posters are seldom commissioned. Clients expect to be presented with a selection from which to choose and will usually expect to buy the copyright. Payment for the reproduction of a book is by royalties with an advance. Book illustrations are paid with a flat fee. Book covers earn higher rates and licences should be limited to that particular edition. Magazine illustrations are requested with tight deadlines. Illustrations are usually licensed for 'one use' in the magazine and payment will include the production of a rough. Printed advertisement - work is negotiated through an agent. Fees should include provision for a limited number of roughs or alterations.
  • What is the method of reproduction? (For example, four-colour process lithography, duotone).
  • What is the size of the reproduction?
  • What is the maximum permitted number of copies that can be made?
  • Are there any other important details of the product in or on which the work is to be reproduced? To ensure quality of reproduction it may be important to specify aspects of the product on which the work is to be reproduced. For example, in the case of printed material the type of paper to be used for reproduction.

8 Territory

  • Where is the reproduction being sold? (For example, London, UK, Europe, USA, World) It can be important to define the territory that the licence covers, as it may be possible for the artist to grant another licence for the same work to be reproduced for sale elsewhere in the world.
  • What type of sales does the license cover? (For example, retail sales, trade sales, all sales) It is useful to define the territory that the licence covers, as it may be possible for the artist to grant another licence for the same work to be reproduced for sale to other sectors of the market in the same geographic area.

9 Exclusivity

  • Is the license exclusive or non-exclusive? An exclusive licence gives the client the sole right to make use of the image within the other terms of the licence. The artist cannot grant the same rights to others. It is important that the licence wording defines what the exclusivity covers. An artist should be wary about granting exclusive rights unless the terms are otherwise favourable.

10 Copyright & Moral rights

  • Who will own the copyright in the work under license? Note: The artist must retain copyright in the work otherwise they cannot license anyone else to reproduce it. The fact that the artist may have sold or parted possession with the original artwork does not affect copyright ownership. Transferring the copyright to the company reproducing the work will prevent the artist from profiting from their work in the future. However, assignment of copyright is common, for example where an artist's work has been commissioned for a corporate logo.
  • Will the artist be granting rights under a trademark as well as copyright? When the licensed products will bear an image, symbol, name or other 'trademark' which is distinctive of the artist's work specialist advice from a trade mark agent or solicitor will be needed.
  • Does the work to be licensed have an industrial application? Both registered and unregistered design rights will apply.
  • The artist should assert their moral right of authorship in writing An artist's statutory moral right to be identified as the creator of a work must be asserted in writing. This assertion only affects the licensee. If the licensee intends to sub-licence rights to another party the original agreement should state that the licensee must notify the sub-licensee of the assertion of the artist's moral rights.
  • What form of copyright notice or accreditation will appear on the copies? Copyright notices usually take the form of the copyright symbol © together with the artist's name and the date that the original was made/conceived
  • Can the licensee transfer the license? Usually the licensee will not be allowed to transfer the licence to anyone else without the artist's consent. Otherwise the artist has no control over who is producing the products and no means of enforcing the payment of fees or royalties, since there will be no contract between the artist and the third party.

11 Fees and royalties

  • Will the artist be paid an advance against royalties? A proportion of anticipated royalties is usually paid up front as an 'advance'. Typically this is payable on the signing of the licence agreement and would be non-refundable.
  • How and when are payments to be made? Flat fees are usually payable to the artist on signing the agreement. Royalties are usually paid at regular intervals known as 'royalty accounting periods'.
  • Has the artist the right to a regular detailed royalty statement? Royalty accounting periods can vary from monthly to annual and the licence should state the start date of the first accounting period.
  • Has the artist the right to a regular detailed royalty statement? It is usual in commercial licences for the artist to have the right to inspect and take copies of the licensee's books and records to check that royalties are being paid correctly.
  • Will the artist charge an interest/service charge on overdue royalty payments?
  • How can maximum sales be encouraged? Note: It is common to include a 'sales obligation' clause which states that the licensee undertakes its best endeavours to extend and promote sales of the 'Products in the Territory'. Inclusion of such a statement will enable the licence to be terminated if the licensee stops making any effort to sell.
  • What if any expenses will be reimbursed? The artist may be able to claim for expenses incurred in the production of the reproduction. For example travel to the printers to approve proofs.

12 Fees and royalties continues . . .

  • Will the artist be paid an advance against Royalties? A proportion of anticipated royalties is usually paid up front as an 'advance'. Typically this is payable on the signing of the licence agreement and would be non-refundable.
  • How and when are payments to be made? Flat fees are usually payable to the artist on signing the agreement. Royalties are usually paid at regular intervals known as 'royalty accounting periods'.
  • Has the artist the right to a regular detailed royalty statement? Royalty accounting periods can vary from monthly to annual and the licence should state the start date of the first accounting period.
  • Has the artist the right to a regular detailed royalty statement? It is usual in commercial licences for the artist to have the right to inspect and take copies of the licensee's books and records to check that royalties are being paid correctly.
  • Will the artist charge an interest/service charge on overdue royalty payments?
  • How can maximum sales be encouraged? Note: It is common to include a 'sales obligation' clause which states that the licensee undertakes its best endeavours to extend and promote sales of the 'Products in the Territory'. Inclusion of such a statement will enable the licence to be terminated if the licensee stops making any effort to sell.
  • What if any expenses will be reimbursed? The artist may be able to claim for expenses incurred in the production of the reproduction. For example travel to the printers to approve proofs.

13 Artistic control

  • Must the work be reproduced in full, or can it be cropped, or superimposed with text, image, symbol or other mark? The licence should state clearly the ways in which the work can be reproduced, in particular whether or not the work can be used in part or overlaid.
  • Does the artist have the right to approve proofs/samples, packaging and promotional material? The artist should always insist on seeing and approving the reproduction of licensed product in its finished form, including any packaging and promotional material, before it is produced in volume or sold. The artist should have the right to refuse permission to publish if the quality of reproduction is unacceptable.

14 Free samples

  • How many free samples will be given to the artist? Any free samples provided through the licence should be in addition to any samples sent to the artist for quality control.
  • Can the artist buy further reproductions at cost or a reduced price, if so how many and at what price?

15 Ownership of artwork

  • Who will own the original artwork including roughs? It is usual for the artist to retain ownership of the original artwork including all roughs, even when the original work has been commissioned by the licensee.

16 Duration

  • What is the duration of the license? The licence must state how long the publisher/licensee has the right to reproduce the work without having to come back to the artist to renew or renegotiate the contract. The maximum effective duration of a reproduction licence is the length of copyright (50 years after the artist's death).
  • Is there a date by which commercial production and sale must start? This is often stated within the agreement. If commercial production has not started by this date the licence agreement will automatically come to an end.

17 Fine prints and limited editions

  • Will the work be reproduced as a fine print or limited edition? A contract between an artist and the publisher of a series of original prints is a specialised form of licence agreement covering issues relating to printing, dealership and distribution.
  • What is the size of the edition? Fine art prints are published in editions. These are limited print runs from one original.
  • Will proofs be produced (for example, artist's proofs, publisher's proofs) and if so how many? The contract will need to define the number of artist's proofs and how they are to be signed. Publisher's proofs are used for documentation and are not sold.
  • Is there an option for the publisher to increase the print run or to reprint and under what terms?
  • What will happen to the plates? The plates used for printing are often scored through and a final print made to prove that the edition has been limited. Occasionally the plates are retained for archive purposes in which case it is necessary to specify whether the artist or publisher owns them.
  • How will the edition be documented? Documentation covering the title, date, size of paper, size of edition, process and material, number and type of proof should always accompany the sale of prints.
  • Who will bear the cost of distribution and selling? Usually the publisher or distributor.
  • Who will be responsible for choosing an appropriate printer?

18 Termination

  • Under what conditions can the license agreement be terminated? The artist must be able to end the licence and stop the further selling of the licensed product if the licensee fails to carry out the contract or has gone bankrupt. Once given a notice of termination cannot be unilaterally withdrawn.
  • Can the contract be terminated if the licensee fails to sell in sensible commercial quantities?
  • Can the contract be terminated if the licensee sells their business?
  • Can the contract be terminated if the licensee fails to pay a fee or any other payment within an agreed time limit?
  • What is the length of the permitted sell-off period when the license comes to an end or is terminated? The licensee is commonly allowed to sell off unsold stocks of the products for a limited period at the end of the licence. Royalties will continue to be due on all such sales.
  • When the license comes to an end or is terminated can the artist buy the stock from the licensee at cost?

19 Changing the agreement

  • How can the agreement be changed once signed? All changes or modifications to the reproduction licence must be made in writing and signed by both parties.

20 Governing law

  • Which country's governing law will apply to the reproduction license? If either of the parties in not a UK resident or an organisation based in the UK the agreement will need to specify which country's law will govern the agreement.

21 Signatures

  • Who should sign the reproduction license? The reproduction licence should be dated and signed in duplicate by each party.

22 Further information

Specialist advice will be required for

  • complex licenses involving the coexistence of different rights or different licensees
  • cases involving patents or trade marks, or registered or unregistered design right
  • cases where the artist's ownership of the rights is in question
  • cases having an overseas element or overseas rights.

www.dacs.org.uk
DACS (Design and artists Copyright Society Ltd) Parchment House, 13 Northburgh Street, London EC1V OJP. +44 20 7336 8811
UK copyright and collecting society representing member artists and designers, protecting their copyright and negotiating licenses with manufacturers and others who wish to use artists' images or designs.

www.theaoi.com
Association of Illustrators, 51 Leonard Street, London EC2A 4QF. Telephone 020 7613 4328
Provides information for members on licensing reproductions.

23 Protecting an idea

Ideas are not protected by copyright, therefore special steps need to be taken to ensure that ideas are not copied:

  • Ask the other party (usually a company) to sign a Confidentiality or Non-disclosure Undertaking before discussing the idea or showing any designs
  • Mark all designs or artwork with a copyright notice �
  • Get a witness to sign and date a copy of the proposal before showing it to the company. Alternatively mail a copy to yourself with the stamps across the seal to provide a dated copy that remains unopened unless there is a dispute.
  • Write to the company stating that you are going to disclose details of the idea at the meeting
  • Record the names of all those present at any meeting
  • After each meeting write mentioning in outline the information you handed over
  • Keep copies of all correspondence and dates of all phone calls.

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