2.14.2011

Marketing Mondays: A Contract I Didn't Sign

1.
This is not the dining room in which my work was placed. I have blurred the image of a perfectly good painting in a perfectly good dining room to illustrate the point of my story  (Image from the Internet)


Today's post follows last week's MM on the topic of contracts. This one's personal, pointing up the importance of not signing a contract unless and until we are comfortable with what we are signing. It also  reminds us that not every bit of visibility for us is necessarily helpful. I hope you'll share your similar stories here, along with any advice you have to offer about your situation. Here's my story:

A few months ago I got an e-request from a producer’s assistant to have my work included in a TV program about home design. “Your work is integral to the dining room, where it is placed, and we’d like your permission to shoot it,” said the production manager.

“Lovely. Send me a contract,” I replied.

Here’s what the contract required me to agree to: “To use and authorize others to use, including by assignment of this agreement, the Property as so incorporated in the Production in the distribution, sale, licensing, marketing, advertising, promotion, publication, exhibition and other exploitation of the Production and other film or video productions in all markets and media (whether now known or hereafter developed), throughout the universe, in perpetuity.”

In other words, they wanted free rein to use the image of my work as they wished. And what they were willing to offer me? Nothing. Nada. Bupkus. No payment, not even credit as the artist.  I don’t have to get paid—the feature was on someone's interior design work, with my painting part of the environment she'd created—but I do have to be credited. “It’s not our policy,” said the production manager. Well, it’s not my policy to sign away rights ‘throughout the universe, in perpetuity.’

I asked the production manager: “What exactly does that mean, “throughout the universe in perpetuity.” She emailed back: “It means forever.” I laughed out loud, reminded of the time I asked a waitress, “What’s the soup du jour?” and she came back with, “It’s the soup of the day.”

Pressing her, I found out it means the production company would have the right to show the program and repeat it at will; put the content into a new form—a compilation, for instance; or into an as-yet untried medium, such as a holographic broadcast; and, apparently, to broadcast the program to Neptune in an endless loop of home decorating tips.

“I want credit as the artist,” I said.

“It’s not in the contract. But your work is essential to the shoot, so we’d love you to sign the contract.”

“If it’s essential, I want credit.”

Back and forth, the bottom line being that if they don’t get my permission, they will shoot the room and blur the image of my work. “So blur it,” I replied. “But it’s essential to the show,” said the production assistant. You can see where this was going. I stopped responding.

Then came the call. “We’re going to include your name in the show credits.”

“Fine, send me a contract with that detail spelled out," I replied, adding, "and if you can do it for me, you can do it for other artists.”

The contract came. Here’s what they added, italics mine:  “In consideration of Licensor’s compliance with this agreement and subject to broadcaster approval, Licensor will receive credit in the end credits of the episode(s) in which Producer uses the Property in the form of  “title of work” [I would supply the specific information] dining room painting by Joanne Mattera”, the size and placement of such credit to be at Producer's sole discretion.

Give me a break. I’m no lawyer but even I can see the hole big enough to drive a truck through. They offer me a contract that credits me and my work, but they also give the broadcaster the right to rescind the agreement and the producer the right to put it in the teeniest point size possible in, say, black type on a black ground. This is what you call chutzpah, faccia tosta, balls, no shame. Under duress you offer credit but it comes with more strings than a puppet. No thanks.

So if you’re watching a home decorating channel and you see a big blur of red on the wall in a feature about a recedorated dining room, that blur would be my painting. Assuming the decorator signed the same kind of contract that was offered to me, that blur may well be broadcast throughout the universe in perpetuity. 

This would be just a funny/annoying story if it were not for the fact that it’s the way that artists often get treated—i.e. We love your work. Let us use it/have it/show it and we’ll give you nothing in return and make you sign a contract you can't back out of.

My advice: 
. Don't sign any contract until you understand what you're signing. Where will your work be shown? What's the context in which it will be shown or used? How will it be insured? What's the benefit to you? 
. If you don't understand the language, consult an attorney. Start with Volunteer Lawyers for the Arts, but even if you are asked to pay a fee, know that this kind of consultation is a deductible business expense
. This is a different situation from mine, but some galleries do nothing but rentals, whether for corporate clients or for the film industry, while other dealers have found it to be a useful side business. No gallery should rent or loan your work without your contractual approval. Ask: Who's responsible for damage or loss? What's the rental period? What's the rental fee? If you agree, the gallery should take care of shipping, and both you and the gallery share in the fee.
. In a situation like mine, even if  a fee is offered, are you being asked to give away too much for what's offered? One-time rights allow you to retain control of your work or your image, whereas "throughout the universe in perpetuity" is just prepostrously (and uncontrollably) broad

Who’s got stories or cautionary tales about a request that didn't offer much?
. . . . . .

More on getting your work out into the world
Check out Joy Garnett's report on Making a Living as an Artist (With or Without a Dealer), posted on the College Art Association's conference blog.
. Part 1 here
Best quote of the post comes from Bill Carroll, artist, former gallery director, current arts administrator:
"You are ALWAYS responsible for your own career. A smaller gallery especially cannot be working on your career all the time. Most of the people I know who make a living off their work have several galleries — you need to look for galleries in other cities outside New York City."
.  Part 2 here
Best quote of the post comes from Sharon Butler: "You need to get the gallery to notice you, not by sending them your work, but by creating a SCENE. By making your voice heard. Any effort you put into building the community will be rewarded. So: rather than trying to bust into someone else’s scene, make your own."


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15 comments:

Wendy Wolfe Rodrigue said...

Recently one of these design shows called 'just to inform us' that they would feature an unauthorized copy of my husband's artwork in an upcoming episode. They were faxing him a contract to cover all bases.

We told them 'no' (and forwarded a picture of the fake image to our attorney, who is following up on that end), and we offered instead to loan them a print from our collection, since the show was being filmed here in New Orleans. We would then give the print to the local family that would live in the house, recently returned after losing their home to Katrina.

We then added a line in the contract regarding the limits of use, specifically restricting 'products or promotional items,' and that if the piece ends up on the cover of a dvd or within an advertisement or poster for the show, then we need to follow up again regarding permission --- specifically items such as credit, payment, and most important, artist's approval of the way the work is used.

They just couldn't do it. We learned this lesson the hard way, when movie posters of my husband's work showed up all over the French Quarter after we loaned rights for a film. Another time we sued when, after loaning rights for what we thought was a book benefiting a local non-profit, the image turned up on the cover (with only a fraction going to charity). We won.

Over the years I've learned that most people are basically honest, and that out of trusting people comes some of the best opportunities. BUT, it never pays to be careless with the rights to your artwork.

Thank you for another great post-

Joanne Mattera said...

Wendy,
"They just couldn't do it." Isn't this an amazing thing? That they want to suck you dry and then just can't give you anything in return? Thanks for a great response.

Your story reminds me that over a decade ago I allowed a small book publisher to use an image of my work. I knew the publisher, and I admired the mission of her company. There was no contract, but when I sent her the image I said that the artwork was not to be altered in any way. She paid me $100 for the one-time use of the image. Imagine my shock when I received a copy of the book. The cover featured a collaged image of my painting. The designer had literally cut and pasted the image.

Mary said...

It really helps to have good advice here, there are so many twists and turns these guys take in using artists' images and then not giving credit. It's an epidemic in design and architecture catalogues as well, but I've seen that improve as artists and especially their dealers--who are often the conduit between the entity negotiating the contract and the artist. In my former life as a commercial dealer, we spent a great deal of time working out contracts for our artists, something I felt was rarely appreciated because the artists were almost always happy with the results (credit, work displayed appropriately, compensation) The other benefit of working with your dealer on these kinds of contracts is that they often have learned from either their mistakes, or their artists' so if this is a service your dealer does for you, give them thanks, its yet another way they earn their percentage.

canvas artwork said...

the design in your picture is to die for.

Sky Pape said...

Thanks for presenting this valuable info on contracts, Joanne. There are a lot of variables & nuances, and it's so important to get it right! I seem to learn some new critical thing with each experience.

Tangentially related: I once had work featured prominently in a magazine article on the interior decorating & art collection in the home of a big collector. I was only told of the article after it was published in print (too late!) and I received no identifying credit whatsoever for my work, nor did my gallery who made the sale get an mention. It would have been tricky business to confront the collector or her interior decorator, both of whom are important clients. Still scratching my head over what other options there might have been in this "use first, ask later (or ask never)" scenario.

annell said...

Very interesting post as always@ The best!

Sherrie Spangler said...

One of my pet peeves with decorating and interior design magazines is seeing a room that is made spectacular because of the art work, but no where in the caption or article is the art mentioned or the artist credited. On the other hand, the source is given for every little accessory, end table, mirror, etc.

Jeff said...

I have been there done that! My work was shown for 3 seasons on a very well known NBC comedy and I learned a few hard lessons but also received some good PR. First the good news; I did receive a rental fee for the pieces, (I wish I had a syndicated contract, then I'd be rich) I was given the royal VIP treatment when I was in LA to see the set and meet the actors/actresses, directors. All this makes a great story and people think your famous when your on tv or in print. There were no contracts it was an understanding that I would be paid and my work would be on the set. It seemed to be more of a privilege and they were doing me a favor. I knew this was the game to be played, it’s Hollywood, you do for me - I do for you.

The kicker was when they returned the work there was a piece missing. When I questioned the set designer he said “The producer really liked the piece and wanted to add it to his art collection.” There was no mention of buying it. Heck, if I could add art to my collection with out paying for it, I’d collect art too. Lesson learned. So now when I deal with Hollywood they either buy outright or I send them a print on canvas and not the original, they still pay the rental fee.

Was I duped? Maybe, Was it right? No. But I was willing to lose a small piece of work to be shown on the finale of a great TV show, then Jay Leno, then Oprah and on the Today Show. So when someone tells me they can get me some good exposure hanging in their coffee shop. I tell them over 50 million people have seen my painting and it’s still hanging in my studio.

I’m happy with my story along with the brief TV stint that I never would of had. I look at it as I still have the opportunity to create more paintings and it will all even out.

Joanne Mattera said...

Such interesting stories you've posted. Picking up on Skye's and Sherrie's comments, the lack of credit is infuriating. Recently New York Magazine did its annual home decorating feature. The cover shows a painting in a room. The painting took up a good 75 percent of the cover space, but when I went to look for the cover credit--I knew the artist--there was no mention amid all the other info about owner, designer,and furniture.

kim matthews said...

Good lessons from all of you. It's so tempting to gloss over the details and cooperate just to get the exposure but as you say, Joanne, why do they need carte blanche "universally and in perpetuity?" On the flip side of this, last year I saw a fabulous sculptural ceramic vase in an Australian interior design magazine and wanted to see more of the artisan's work. There was no mention of it in the credits and when I emailed the magazine to find out whose work it was, they had no idea. It was the centerpiece of the room. How unfair to the ceramicist, and how sloppy of the publication.

Joanne Mattera said...

Kim has two good words here: "unfair" and "sloppy." Right you are!

I would hope the artist wrote directly to the editor in chief to express dismay at the situaton and to request that a credit be put into the next issue, and further, to have his/her work featured prominently--with credit--in an uncoming issue. There are ways, sometimes, to turn a bad situation good, but they require perseverence on the part of the artist. (It's a rare publication that will correct a mistake if not called upon to do so.)

I talked a bit about this issue in a wider-ranging MM post in July called Standing Up For Yourself: http://joannemattera.blogspot.com/2010/08/marketing-mondays-standing-up-for.html

Elaine said...

This is now standard boilerplate language for writers and artists - if you're lucky enough to get paid at all, you can do so only by signing away all rights. Throughout the universe, in perpetuity, in any form, via any technology known or not yet developed.

When the Internet first came along and publishers started repurposing content and having to track people down and pay for it because contracts were for print only, they quickly realized that technology was advancing so quickly -- and they would desperately need all their existing content -- that this kind of contract became standard practice. It is most definitely unfriendly to the creators of the work.

And the alternative? You put your work on line for free, with a Creative Commons license, and just try to keep people from stealing it, whether out of ignorance or malice.

All that said, giving you credit seems like a very reasonable and easy thing for them to have done; it's a shame they were so locked in to their protocol.

Kylo Chua said...

Great read. Very informative :)

Fancy Eye Candy said...

Very interesting info. One of my prints will be used in an upcoming movie and I signed off on it also (with a lot of trepidation and against my better judgement but...) It sounds to me like we all have a cause to fight for. A little grassroots buzz? An FB page? Imagine producers, actors, directors and studios not getting paid for their work! Anyone know if there are any advocacy groups fighting for this already? Worth looking into. Thanks for all the great info everyone!

"The Artrepreneur Coach" said...

Joanne, thank you for sharing such useful information. I'll be sure to share it with other artists I know. I love your blog.