Friday, May 5, 2017

Artist Spotlight - Judy Reed Silver

 
(Click on images to view larger.)

Tell us a bit about yourself: Did you go to school for art? Are you self taught?   
I went to Art Center College of Design in Pasadena and focused on illustration and fine art.  While I was much younger I attended Brentwood Art Center for several years - started there when I was thirteen in adult life drawing classes as they didn’t offer any classes for kids at the time. I luckily had a family that allowed me to turn our kitchen into an art experiment. 
Do you work in just one medium? Several? 
It depends. If I’m working on canvas or for a fine art print I work with collage using my photography (sometimes steal my husbands as he used to be a professional photographer) and patterns that I created. I print to fabric or special papers. But for illustration, design and licensing I often work solely digital or scan in my drawings and vintage photos, manipulating within Photoshop. I also use cutline filters for a “vintage” effect. For wall patterns or fabrics, I usually use Illustrator, as most companies I’ve worked with prefer art supplied as vector files.
 

What inspires you / where do you get inspiration from? 
Japanese kimonos, fabrics, textiles, nature, especially anything vintage. I love modern architecture, interior design, fashion and that's what inspires me to incorporate my work for walls, rugs and fabrics.
How did you start licensing your art? 
A close friend and art director was working on a project for clothing and didn’t know the technical aspects of how to create patterns within illustrator. So she asked me to assist her on the project. This was back in 2005 and that job led to another large project with another design firm creating several clothing lines. I realized that between my love for fashion and architecture licensing would be a good fit. I was then approached by a licensing rep that convinced me to move forward and go all in.

What are you working on now?  
Designed another scarf recently for the National Cherry Blossom Festival (held in DC each spring); they sold quite well.  I also had fun with nature-inspired imagery for use on cool water bottles produced out of Sausalito. And then I'll work on a collage-y piece for a magazine. It's a nice blend of clients and I value what that diversity brings. Just now, my agent, Liz Sanders/Liz Sanders Agency and I have  promotional materials we're collaborating on. ...Would like to approach my blank canvas boards again!

 
Any great advice for our readers?
When approaching licensing, make sure the contracts make sense and are fair, most are slanted towards the Licensee. All copyright transfers are contingent upon payments in full, which should include a copyright reversion clause if any breach in payment or usage. The “Net” proceeds should be specific. Also the artist credit should be stated on the artwork and advertising/promotions. When seeking a licensing rep, speak to the other artists in their group to get proper background info.

Anything else you would like to share with us?
A few of my images are licensed through a company called, “Soundwall.” They produced this new sound/music technology that is transferred directly through the artwork and not a speaker. I listed their link below.
Are you an early riser? or night owl?
Really a night owl. I rarely go to sleep before 2 am. Everyone knows to never call me before 10 am. I do my best work at night.
What is your favorite food?
Indian food, and Caesar salads.



You can Find Judy:






Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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Monday, April 24, 2017

Bo's bLAWg - Copyright Term and Unpublished Works


MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations.  It appears they date from 1880 and earlier to her death in 1925.  I don’t think any were published, but I do not know!   I would like to publish them.  You indicated in a prior bLAWg that works published before 1923 are in the Public Domain.  What about unpublished works from that date and earlier?  Thanks!  Teri

Good question, Teri.  The Term of copyright for never-published works does require a different analysis from that we use for published works.

Start with the contemporary Term:  the life of the author/artist plus 70 years.  Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain.  So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).

Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date.  So, were you able to determine that certain works were published, the 1923 rule applies.  Those published in 1923 would have their last year of copyright protection in 2018.  Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021.  (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )

I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship).  In the case of these, the Term is 120 years from date of creation.  So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection.  It is just a matter of knowing when they were created.  As of this year, creation before 1897 would make them PD.


Here is an online Chart that addresses this Term information for both published and unpublished works:  http://copyright.cornell.edu/resources/publicdomain.cfm
 

Now, I want to say a few other things about works in the PD.  First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use.  Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial  use of them.  Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material.  By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s?  Not necessarily…

More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements.  For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards.  While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts.  There would be little economic incentive to go to that trouble since your line is already available for sale. 


Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com


Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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Friday, April 14, 2017

Artist Spotlight - Jill Craig

 

Tell us a bit about yourself

There was something magical that would always happen when the paints came out in elementary school.  The blank paper, the colors, the brushes, the freedom to let my creativity run wild was irresistible to me.  I knew this was the job for me, no question about it; I was going to be an artist!

But how could I support myself painting and drawing?  Although I graduated with a degree in fine art with an emphasis on painting and printmaking, the art gallery world didn’t seem a comfortable fit for me at that time.  Therefore, as I considered careers, which would provide financial stability, becoming an elementary teacher would probably be a much better choice.  Plus there were those summer vacations!  Yes, then I could spend those summers painting and letting all that creativity loose, perfect!

Unfortunately, summer was never enough time to explore this missing part of my life.  In my continued search over the following years for a career that blended creativity and challenge I worked within the interior design and visual merchandising fields. Both careers involved working with color, balance and form which was very creative and fun.  Yet still missing was the opportunity to play with a blank canvas, splash in the paint and give life to a vision only I could see.



Maybe painting and making a product that I could sell would be the answer?   Based on my love of textiles I developed a line of hand painted decorative pillows, tablecloths and napkins.  Shortly I learned the price I would need to charge per piece would far exceed what the retail market would pay. It was through my research into having these products manufactured that I stumbled into the world of surface pattern design.   Enrolled in a series of surface design classes in the mid 90’s I was fortunate to meet two other very talented designers.  We formed a studio, created our portfolios and off we marched to exhibit at Surtex.  What a grand and eye opening experience for us, this was exactly the career I had been searching for all these years. We exhibited together at Surtex and licensed our work for many years to manufacturers and retail businesses.

Due to my exposure at Surtex I was hired as an in-house designer for a ceramic dishware manufacturer.   While working with this manufacturer I also had the opportunity to work with many freelance designers in providing art direction, not only for our in-house line of products but also for custom designs requested by our retail clients.  Each October and May I enjoyed doing the visual merchandising of our showroom during the Tabletop Shows in New York, it was a nice little chance to revisit that creative expression. 

After about 10 years working in-house I returned to freelancing yet continue to work on a contract basis with my former employer.  Since my freelancing days of long ago the industry and Surtex have changed.   We have gone from hand painting designs on paper to now submitting digital files.   Licensing has also changed over the years with options ranging from limited use, exclusive use, and much more common now, flat fee and outright purchase.  Freelance marketing strategies now are more varied to include websites, blogs, print on demand, Etsy, as well as exhibiting at industry shows.  Becoming a member of artlicensingshow.com has been an invaluable source providing connections with manufacturers, sharing industry news and offering an open and supportive community of very talented designers.



My connection with other designers and various design blogs and websites help me navigate the waters, smooth out the ride and help keep me engaged and positive on this freelance journey. Those who admit to having their doubts about being talented enough to forge through the difficult times encourage me.  There are times when that little personal critic sits on my shoulder and tries to convince me to give it all up, tells me I’m not cut out for this business.  I cherish and flourish during the days that little guy has no words for me. Maybe success isn’t a measure of what I can do or create on a given day but more about what I learned during the process.  Maybe it was the way those colors merged together in that little corner of my watercolor, or how that texture over there created interest.  Relying on these examples as measurements of my success for the day, I stockpile them in preparation for the next conversation with that little demon.

Apart from a specific theme or subject I have repeatedly tried to identify my style and have wrestled with this issue all these years.  As it has been with my creative career choices, how could I choose just one area of interest? All these career endeavors have added layers of complementary elements, each supporting the other.  As far as branding a specific art style I skip along a narrow path between traditional and painterly to graphic and whimsical styles.  Trying to convince myself to let one go and concentrate on the other seems such an impossible task for me. In many ways this split personality of styles has been a positive in my work with manufacturers and retailers.  For now, a specific brand style may remain illusive for me but I enjoy having these options for the flexibility and diversity of design work that may come my way.

So many things can be the catalyst of inspiration for me.  Of course nature and our visual world bring countless opportunities for creative expression, but also a memory, word or phrase, even music can take me to the drawing board.  I am also inspired by the work of other designers and so thankful they are willing to share information selflessly and offer support when I fear I am off track.



I love watercolor and it’s surprises, but all paints and inks are good for the cause.  Chalk and colored pencils have a home here in my studio, add a bit of collage material and stamping tools and the day is never long enough.  Needless to say, digital art has slipped in and adds a whole new experience to my creative life.   The variety of digital brushes, tools, filters and techniques are so numerous I often feel overwhelmed but am continually curious and anxious to explore them. 

I tend to be a night owl especially if I am working on my own collections, sometimes I just get lost in the process of creating, that rather obsessive drive you just can’t stop. If there is a deadline looming I can be found in the studio early and eager.  I guess this goes along with my split personality of style, the chameleon freelancer striving to make it all work.

Chocolate will always remain a favorite choice to satisfy a moment of craving, just as putting the final touch on a design satisfies the joy of being an artist.  I look forward to continuing on this unique journey, with the challenges, the new experiences and especially to breath life into the countless designs dancing through my mind.

You can find Jill:
Email:  jillcraig2@comcast.net

Website: www.jillcraigdesign.net

Facebook: www.facebook.com/jillcraigdesign

Member: artlicensingshow.com

Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Friday, March 31, 2017

Bo's bLAWg - Copyright and Useful Items

 
MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

What is this I heard about a copyright and cheerleading uniforms case before SCOTUS?  Does it have anything to do with design licensing?  (BTW I love your bLAWg, Bo!)  Jeff

Always happy to discuss copyrights in the news, Jeff!  Let me summarize the case to which you are referring.  It is called Star Athletica, L.L.C. v. Varsity Brands, Inc.  Varsity Brands is one of the largest purveyors of cheerleading uniforms in the country.  Star Athletica is a smaller competitor.  Varsity registered its copyrights on certain “chevron designs” used in a new series of uniforms.  Star’s catalogue the following year included a number of similar chevron designs in its new uniforms.  Varsity sued.

What is a chevron?  I didn’t know!  Here is a link to some other legal bloggers who dug up the Varsity copyrighted designs and the Star catalogue uniforms:  https://www.knobbe.com/news/2016/11/chevrons-stripes-cheerleaders-and-copyright-supreme-court-hears-oral-argument-star  Now I know what a chevron is! 

The matter sounds straightforward enough, doesn’t it, Jeff?  What’s the issue that brought such a case all the way to the SCOTUS?  It is simply this:  Is the Varsity chevron an article that is part of a useful item like a cheerleading uniform, or is it something else; something uniquely creative simply added to the useful article? Copyright does not apply to “useful items”.  It has always applied to the sculpture that is turned into a lamp, and the illustrations that are added to mugs, but what about clothing?  Historically, clothing and its elements, from zippers to hidden pockets, have always been considered useful items.  Some of these items may be entitled to patent protection, but not copyright.

Copyright is limited to “original works of authorship” that are not in themselves “functional”.  (See 17 USC Section 101:  https://www.copyright.gov/title17/92chap1.html#106a )   Section 101 defines a useful article as:

an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

Reasonable minds can differ.  The Federal District Court in Varsity’s copyright infringement case found that the chevrons had a utilitarian function with respect to the uniforms.  Varsity appealed.  The Federal Circuit Appellate Court reversed, finding that the chevron was a design that “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” per 17 U.S.C. § 101.  Star appealed to SCOTUS.  Undoubtedly, as indicated by the reversal of the original Judgment, Stars’ attorneys considered this to be “a close question.”  And no doubt there were a lot of damages at stake.  Remember, having lost on appeal, Star could be liable not only for large damages, but for all Varsity’s attorneys’ fees and costs incurred for bringing their action, as well as Stars’ own.

When it came right down to it, SCOTUS did not consider this to be such a close question.  It applied the usual legal “test”:  Do the artistic features of the useful articles includes a separate identification or “separability” requirement and an independent existence requirement.  More particularly, “(1) can the chevron designs be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would they qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article?”

Justice Thomas, writing for a five-member majority of the Court, affirmed the Judgment of the Sixth Circuit Court of Appeals.  This majority identified the two key requirements – that the chevron features were separately identifiable from the cheerleading uniform, and are capable of existing independent of the utilitarian aspects of the uniform.  It also reasoned that removing the surface decorations from the uniforms in the abstract and applying them in another medium would not replicate the uniform itself.

So, Jeff, you want to make a million bucks?  Attach some of your original artwork in ambiguous fashion to a top-selling article of clothing.  Register your copyright, and let me know when you someone infringes on your design.  We’ll rack up.

Disclaimer:  The information contained in this website is not intended and should not be relied upon as legal advice. Because the law is not static, and one situation will differ from the next, the results will differ as well, thus we do not assume responsibility for any actions taken based on any information contained herein. Also, be aware that the laws vary from state to state. Therefore, this website cannot replace the advice of an experienced attorney who practices within the jurisdiction involved in your issue or dispute. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold www.bcgattorneys.com
© 2017 mjbogatin


Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Friday, March 24, 2017

Agent Spotlight - Brenda Manley Designs


How long have you been in business and how did you come to be an agent? 
I worked 16 years for a paper tableware manufacturer in multiple positions.  Started as a graphic designer for catalogs, then promoted to designer, senior designer, assistant manager and finally design manager.  I created trend briefs, art directed and was an art buyer/licensee.  I had been attending Surtex for 10+ years.  At each show without fail, I was in complete awe of all the insane talent oozing from each booth. The creativity was intoxicating!  I have always had the entrepreneurial spirit so I decided to switch sides of the proverbial table. Since I am an artist first, my original intention was to freelance on my own.  Along the way I met emerging talent who had little experience in this industry. In my attempts to help some of them my agency developed organically. Some may see me being an artist as confusing while being an agent at the same time.  I reassure them that my art directing skills are stronger and that my creative output is rather infrequent. I truly feel being an artist combined with 16 years of manufacturing experience is a win/win situation.  I understand the demands of manufacturing deadlines and know the challenges designers face.  I thrive being the conduit to both sides!  So while we are in our 3rd year of business I bring over 28 years of design experience to the table with 19 of those years specializing in the social expressions/surface design industry.  

(Editor's note: you can click images to view larger)
Angel Gerardo - AG_0042_Joy to the World_CS

Who are the manufacturers you work with - how did you establish those relationships?
Relationships have been established via exhibiting at trade shows.  I have had the pleasure working with many outstanding manufacturers, some of which have requested to remain anonymous.  However, the following have granted permission to publish:  Amscan, Apache Mills, Claire’s Accessories, Clever Factory, C.R. Gibson, Demdaco, Design Design, Design House Greetings, DesignScapes, LLC, Groupe-Editor, Hallmark, Igloo, International Greetings, Michael Miller Fabrics, Mohawk, National Imports, Northcott Fabrics, Jillson Roberts, Lenox, Pier 1, Seaman Paper, Sterling Brands, Sullivan Paper, The Lindy Bowman Co., TJX, Unique and Wigwam Mills.

Do you have employees/help? 
I have recently been employing the help of a contractor who helps with admin and accounting.  This frees me up to do what I do best - support my artists, art direct, network and secure projects for our talented team!

Alyssa Kays - AKD_15C001_Candy_Christmas_Train_Card_OP

How do you market artists? 
Many ways!  Instagram, Facebook, Twitter, LinkedIn, newsletters, advertising in trade publications and exhibiting at trade shows. Oh, and several interviews here and there ;-)

What do you look for in an Artist? 
Passion, design style, originality, color sense, technical skills (PS and AI expert level) and authenticity as an individual.
Amiee Sue Malott - ASM_16078_Baby Collection

How much work do you expect an artists to create? 
I ask that they produce 12 new designs a month.  While this may vary per designer due to design style, it is a suggested guideline.  This helps them develop as an artist (the more we create, the more we develop).  It also helps keep our portfolio fresh so we are relevant to manufacturers who have little to no development time. 

Any great news you would like to share?  
We have a very desirable booth location this year at Surtex.  We are in booth 2707 - right in front of the entrance!  I’m so excited I can barely stand it!  Oh, and I also I have some very exciting news but it’s too soon to share.  Stay tuned!
Emma Schonenberg - ES_EXG16_005_Exotic_Garedn_01_OP_B
How has the Art Licensing business changed over the years?
I’ve seen a shift in manufacturers moving away from licensing and procuring artwork via purchasing artwork out right - full buy out.  This works well if manufacturers are equipped with an in house team to manipulate the artwork.  However, on the flip side, there are still many viable licensing opportunities available.  Each has it’s advantages and disadvantages.

Any advice or information you would like to share? 
I would say the most valuable piece of advice is to show up everyday no matter the circumstances.  Release the outcome of what you think it should look like. Just keep creating, dreaming, journaling and keep doing the necessary actions to achieve the next level on one’s goal/bucket list DESPITE the challenges, mistakes and disappointments.  For it is in these trying times that our character develops.  One with character, preparedness, and quality content rarely relies on luck to succeed - THEY FLOURISH!



Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Friday, March 3, 2017

Artist Spotlight - Randi Zafman

 

Annie, thank you so much for inviting me to be part of your Artist Spotlight. I am honored to be included among so many talented creatives.

Tell us a bit about yourself: Did you go to school for art? Are you self taught? 
I have been drawing my whole life. One of my earliest, art making memories was when I was about four years old. I remember hiding my crayons and markers in my bed, under the covers. Once my parents tucked me in and left my room, I stood on my bed and colored on the wall. The next morning, my parents came in and saw my artwork and although they were very pleased with what I created, they just wished it wasn’t on the wall. That very day, they repainted, bought a huge roll of white butcher paper, and created a place for my daily murals. I was lucky to always have a lot of support from my family in my art endeavors. I was the kid that used to take the jar of peanut butter and the cereal box, and draw it. This was my first, early interest in package design. I have been obsessed with the anatomy and structure of letterforms ever since. While still in high school, I started taking college-level art classes in design, typography, and watercolor. Armed with a professional set of Winsor & Newton watercolors, sable brushes and an Arches block, I began my life-long, love affair with watercolor. I then studied drawing and painting, graphic design and illustration, and received a BA in Fine Arts.

Do you work in just one medium? Several?
I was trained in many artistic disciplines, but watercolor is, and always will be, my favorite. My watercolor illustrations and lettering are created traditionally, by hand. I crave that tactile sensation of brush, paint and paper. I draw and paint everything in watercolor, gouache, and ink. I then scan my artwork into Photoshop and edit with the Apple pencil on my iPad Pro.



What inspires you / where do you get inspiration from?
I was born and raised in Los Angeles, where I still live today. I love to start my day with a long walk. Inspiration is everywhere, from the mid century, art deco and Spanish architecture, to the wonderful shops that are all around me. By the time I get back home, I can’t wait to get working in my studio.

How did you start licensing your art?
I started working as a graphic designer and art director back in the days before computers. I freelanced and worked in-house, and did everything from traditional graphics to illustration for giftware and stationery companies. It was so amazing to see my work in stores and on products. I’ve done artwork for unusual things things like boxer shorts and credit cards to more typical products like packaging and greeting cards.

What are you working on now?
I have this huge list of ideas and things I want to create. I have the problem of too many ideas and never enough hours in the day. I make sketches and color studies, so that they can one day become finished pieces. Every day feels like an exciting, new opportunity.



Any great advice for our readers?
Life is short, do what you love and follow your artistic dreams. Stay true to your style, but be open to letting it evolve. Enjoy the creative process, be present, and see where it takes you. You never know what you may discover about your art and yourself.

Anything else you would like to share with us?
I am represented by Liz Sanders Agency. Having an agent has been a goal of mine and Liz is wonderful to work with. I am so looking forward to all we can do together.

Are you an early riser? or night owl?
I am definitely an early bird and always have been. I have the most energy in the morning. Some of my best design solutions have come to me in my dreams, so I like to work when the ideas are fresh.

What is your favorite food?
Sushi for sure. The first time I tried it I was at a sweet sixteen in Little Tokyo and it has become my all time favorite food.





You can find Randi
INSTAGRAM: instagram.com/randizafman
WEBSITE: randizafman.com


Want to be spotlighted? email me info@AnnGraphics.com. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Friday, February 24, 2017

Bo's bLAWg - Continuation Fees to Licensing Agents

 

 MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

My Agreement with my licensing agent is expiring.  It is my understanding that she gets to receive her commission on licenses that she negotiated.  Can you tell me how long this goes on?  How it works?  After we terminate, aren’t I entitled to receive my royalties directly from the licensees and account to her?   Trudy

All Licensing Agents will include a “Continuation Fees” provision in their Agreement with you as the Licensor Illustrator.  The essence of this provision is to give the agent the right to receive their commission on your royalties -- for as long as you receive such royalties -- on a license they placed and/or negotiated on your behalf.  The Term of the Agency Agreement may expire (if it is not renewed), but the agent expects to “continue” to share in the benefits of her services for as long as you do.  Hence the name “Continuation Fees provision.”

The provision typically appears in association with the termination provision, but not always.  It reads something like this:

“It is further agreed, regardless of termination and/or cause, Agent will continue to receive its full 50% share of all Gross Revenue associated with all License Agreements procured by Agent during the Term (and any renewals, extensions and/or modifications thereof).”

I have left in the highlighted, “and/or cause” part of this provision, because this is the kind of term that might be slipped into the otherwise expected provision.  You might miss it if you were not aware of the implication.  What the “and/or cause” means is that even if the Agency Agreement were to be terminated for breach on the part of the agent, like non-payment of royalties due their illustrator client, they would be able to rely on the contract to continue to collect commissions on agreements they made for you!   I say, “No way!”  Commission continuation right should depend on the full, good faith performance on the part of the Agent.  If they screw up and breach their Agreement, all their commission interests should be put at risk.  

In an analogous situation, the California Labor Commission takes the position that if someone is operating as a musician Booking Agent without a license from the Commission, the musicians they represent can make a claim that all commissions earned be surrendered to them.  This includes both past and future “Continuation Fees” that Booking Agents as well include in their Agency Agreements.  Why should illustrators be treated any differently.”  While literary and illustration agents are not licensed, their clients should not have lesser rights than musicians.

As for the issue of continued accounting rights, as long as the Agreement has not been breached, and the Licensor Illustrator had all agency rights revert, it is reasonably expected that post-term, the agent will continue to collect royalties due under the licenses they negotiated.  They will continue to take their commission due, and then account to their former client on the balance due for as long as the underlying Licensing Agreement continues.  Some of the more comprehensive Agent Agreements expressly include this expectation:

“Upon expiration or termination of this Agreement, Agent shall continue to collect payments under any and all License Agreements negotiated during the Term (and any renewals, extensions and/or modifications of the same) unless otherwise agreed by the parties.” 

And, just in case there is any question of whether the Illustrator should contact the Licensee and request direct payment since they are no longer represented by the Agent, some Agreements also make clear they cannot as follows:

“Artist further agrees that Artist, after expiration or termination of this Agreement, may not make any changes in the payment instructions contained in any License Agreement or other arrangement covered by this Agreement to direct any licensees to make payments directly to Artist.”

I would like to offer one alternative to the standard agent Continuation Fees provision.  It is commonly called a “Step-down rate.”  In short, if the commission due is 50% when the Agreement is entered into, two years after termination it might step-down to 25%; two years later, 15%, two years later, it might thereafter remain at 5% or expire altogether.

This compromise term is especially appropriate in those instances when an agent may be taking on an illustrator who already has a significant body of business, but the pre-existing licenses are not necessarily excluded from the Agency Agreement.  Perhaps the illustrator is looking to have the agent review license terms when they come up for renewal and/or renegotiate them when possible.  I have also negotiated inclusion of a step-down rate where the illustrator’s reputation is already ‘made’ as it were, and prospective licensees are calling her for rights.  The agent need not shop her works so much as make the best deals possible.  Then again, you might ask for it with any prospective agent.  If they want to represent you badly enough in the short term, you might save yourself some significant commission fees over time by insisting on a Step-down commission rate post–term!

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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