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Pen v. Paintbrush: Contracts for Artists

We can all agree that handshake deals are not your friend, right? Artists often rely on the handshake deal or verbal agreement, maybe due to the assumption that contracts for artists are ten-page beasts, chocked full of legalese. On the contrary, a written contract can make certain that each side’s understanding matches up to the other’s. Put differently, a contract makes sure everyone is on the same page (pun intended) when it comes to important terms such as payment, delivery, and copyright.

Terms and Issues in Contracts for Artists

Depending on the situation (commissioned work versus straight sale), written contracts for artists might take the following issues into account:

  • Describing the Artwork. What piece of art is being sold or created, here? Is the artist creating a commissioned work, or is he or she selling a piece that was created previously? What’s the title? Is the artwork framed, or will it be? Is it mounted? Signed?
  • Delivery of the Artwork. For a commissioned piece, it might be a good practice to list out the schedule for delivery of the artwork (including any sketch phase, the number of revisions allowed in the sketch phase, the date the artwork will be finished, and the date the artwork will be delivered or installed, as applicable). Is the artist charging a shipping and/or delivery fee? The buyer should be aware of that so there are no surprises or arguments between buyer and artist later.
  • Payment. When is payment due? Is there a delivery fee? Sketch fee? Installation fee? Materials fee? What if changes are made to the artwork that result in additional materials-related costs — does the artist have the flexibility to change the pricing schedule in that scenario?
  • Copyright. When a consumer purchases a record album, there is usually no question that the consumer is not purchasing all rights to the sound recordings, the music, or the lyrics that appear on the album. For whatever reason, that does not seem to be the case with fine art. Many buyers think that because they’ve paid for the artwork, they own all rights, including copyright, to the artwork. That’s usually not the case, unless it’s stated somewhere in writing signed by both the artist and the buyer. Perhaps the artist wants to retain 100% of the copyright in the artwork, but grants a limited license to the buyer to display it in buyer’s home or office. That doesn’t mean that the buyer can create copies of the artwork and sell coasters depicting the art. The contract should clear up any copyright issues.
  • Buyer’s Materials. Sometimes, a commissioned work will involve the use of a photograph or other contribution by the Buyer (for example, “here is a photograph of my daughter or dog or home; please create a piece of artwork based on this photograph.”). The buyer should represent that he or she owns or created that photograph, or otherwise has all necessary rights that will allow the artist to create a piece of art based on the photograph.
  • Venue/Jurisdiction. An artist may be located in Nashville, Tennessee, but the purchaser may be located in Santa Monica, California. Every state’s laws vary. The contract should make clear which state’s law will apply when interpreting the contract, and the place or “venue” in which the parties agree to bring a lawsuit (should that occur — knock on wood).

Looking for a concise contract that incorporates some of these terms? The Spear IP Contract Template Marketplace now features an Artwork Commission Contract and Artwork Purchase Contract. These contracts do not constitute (and certainly don’t take the place of) legal advice, but artists may find that having a basic contract protocol in place will eliminate misunderstandings with buyers or potential buyers down the line (bonus: the contracts were drafted by a real-life, Nashville, Tennessee intellectual property attorney, not a robot).

Can’t get enough of art and the law? Head over to The Sharpened Artist, a podcast hosted in part by award-winning artist John Middick, for an episode featuring a recent interview with Maria Spear. Spear discusses topics such as fair use and an artist’s use of reference photos, fan art, contracts, and copyright registration.