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