LICENSING ART WORK

The short answer is that when you opened the box containing the software, you found a "License Agreement" stuffed inside, not a "Bill of Sale." Also, anytime you have downloaded software from a Web site, a License Agreement is always presented, and you generally click on a button that says "I Accept" before the download begins, thereby binding you to the terms of the license. If you ever bothered to read a license that comes with the software, you would learn that, in fact, no ownership rights are being transferred to you and that most of the license is made up of terms outlining the large number of restrictions imposed on the way in which you may use the software

Additionally, an artist or publisher who transfers an artwork by a license can also retain greater control over the way it is marketed. This would include not only advertising but also pricing. Although the area of discounting in terms of a licensed good is somewhat murky, the artist or publisher should have greater latitude in dictating at what prices works are sold and maintaining their market when the work is transferred via a license rather than through a sale. You are setting the price for work which you own, not dictating to others at what price they can sell products which they bought and own.

How to License Art

What would be the mechanisms for licensing art? We all know in a regular sale we have a bill of sale, invoice or purchase order which has been drawn up, and the work is transferred subject to their terms and conditions. With a license, the process is not much different, the terms and conditions of the license could be written up as well, but instead of calling them "bill of sale" or "purchase order," the nomenclature used would reference a license. Most of the terms would be the same type, i.e. 30-day net, who is responsible for shipping, warranties, etc.

To ensure a license is enforceable, the party acquiring the work must be notified of the existence of the license, have the opportunity to read its terms and in some manner acquiesce to the conditions of the license. (Like ripping open the shrink wrap or using software.)

For a limited-edition print, for example, the licensing language may certainly be incorporated into a Certificate of Authenticity. When it comes to shrink-wrapped products such as calendars, just like in software, a sticker can be affixed to the shrink wrapping indicating that breaking the seal represents acquiescence to the terms of the license. The license terms can be printed on the sticker or the shrink wrap or be viewable through the shrink wrap as in software packaging. In terms of non-shrink wrapped items, simple language can be affixed to the product in a way that the consumer can see and be made aware of the terms (e.g. the back of note cards, on catalogs, on the bottom of prints, etc.).

Upon reading the license agreements, if the person does not want to keep the work, he or she would have the right not to purchase it or perhaps return it. Keeping a product after proper notice legally indicates the buyer has agreed to the terms of the license and is therefore binding on the licensee (purchaser).

Will it hurt sales? If the software industry is any example, it won't. To the regular consumer, there is no difference. The term (time frame) of the license is perpetual, and the license should be transferable, so when a person goes to a gallery and buys a print, has it framed and hangs it on the wall, there is no difference for them from a sale. They would have the right to resell (sublicense) the work as well. Therefore, to a customer, a sale verses a license is the same. The only ones affected are those who would make products out of your work or those who would sell the work in an objectionable manner. well, you've made it this far, you may as well finish reading...

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