17 VIDEO ARTWORKS
Art on videotape, DVD, or the Internet, often combined with pictorial or sculptural elements, is a medium used by some artists. The legal problems of the video artist are for the most part the same as those of the artist using more traditional media. But the possibility of both mass reproduction and public broadcasting of video works raises additional legal issues. The increasing popularity of user-generated content portals like YouTube, Vimeo, and Google Video accentuate the increasing potential for mass distribution and consumption of video works.
Artist-Gallery Agreement
The agreement on pages 184–187 is between an artist and a gallery for the sale or rental of a video work by the gallery. In reviewing such an agreement, the video artist must consider all of the issues raised in chapter 14 regarding artist-gallery relationships. The model agreement specifically deals with the nature and geographic scope of the agency (Article 1), the term (Article 2), the gallery’s use of best efforts (Article 3), commissions for sale or rental (Article 4), statements of accounts and payment (Article 4), the quantity of work subject to the agreement (Article 5), prices (Article 7), promotion of work and the artist (Article 9), assignment (Article 10), termination (Article 11), the death of either party or cessation of business by the gallery (Article 12), arbitration (Article 13), modifications to be written (Article 14), and the laws of which state will govern the agreement (Article 15).
The agreement also contains provisions not found when works in more traditional media are being sold or rented. The artist may create a video piece with several videotapes running simultaneously or with videotape to be used in conjunction with photographs, sculptures, or paintings. The artist would not usually want the elements of such work to be exhibited separately. The agreement provides that the sale or rental must be of the entire work (Article 1). Also, the ease of video reproduction makes copyright even more important for the artist working with video than for other artists. For this reason, the agreement specifies that the agency is to sell only the physical videotape cassettes and requires the gallery to protect the copyright against infringement (Articles 1 and 3). The gallery must obtain the agreement of each person who purchases or rents a copy of the work not to make further copies (Article 8). The dealer can replace copies of the work only if the purchaser returns the defective or damaged copy originally purchased (Article 5). The gallery must also seek to prevent a purchaser’s broadcasting the work or charging admission (Article 8).
The ease of reproduction also bears on another important issue—whether or not to make the video work a limited edition. This decision may turn on many factors, such as the extent of the market, the price enhancement created by limiting the edition, and perhaps even the desire of the artist to maintain a tie to the traditional media in which work is usually either unique or original. The agreement provides that no more than fifty copies of the work shall be created, guaranteeing originality, and in this case reserves twenty-five copies to the artist for sale outside the scope of the agreement. The artist might wish to use a signed warranty of originality, like that described for photographic works on page 108. This signature and assurance of the limited number of identical works or works derived from the entire work will reassure the collector as to value in this relatively new art medium.
The cost of creating copies from the master tape is the gallery’s responsibility, but the artist keeps control of the master tape and has copyright notice on each copy in the artist’s name (Article 6). This particular agreement does not reduce the adjusted gross proceeds specified in Article 4 by the gallery’s cost of the copies, although the gallery might insist that such a reduction is only equitable.
If the gallery is to live up to the obligations contained in the agreement, the bill of sale or the rental agreement must conform to the terms restricting the purchaser’s rights in the work. The bill of sale on pages 186–187 therefore places many restrictions on the rights of the purchaser. The artist might also use this bill of sale with minor modifications when selling work directly to purchasers.
Broadcasting
Videotape naturally lends itself to the possibility of far wider dissemination than artworks in more traditional media. This potential has been recognized in an excellent article, “The Commissioning Contract for Video Artists,” and in the contract draft with explanatory notes prepared for Americans for the Arts by Harvey Horowitz, a member of the New York City law firm of Squadron, Ellenoff, Plesent, Sheinfeld, and Sorkin. The article and contract originally appeared in the Arts Advocate and are reprinted here by permission of the Americans for the Arts, © Advocates for the Arts 1975.
The Commissioning Contract for Video Artists - by Harvey Horowitz
The commissioning contract is standard practice in publishing, film, and commercial television, but it is relatively new for the creative video artist. It is therefore important for the video artists engaged in this field to be aware of the legal ramifications of a video commissioning contract.
In the legal sense a video artist is distinct from an employee for hire who is engaged to make a work for a fee where the finished product belongs to the employer. Video artists are those who conceive and produce their work and view the finished product as their own. They usually function simultaneously as producer, director, cameraman, technician, sound synchronizer, and editor. There is often confusion over the rights to the product of video artists—who owns it and for how long?
The guiding principle the artist should understand is that the artist originally owns the work and all rights connected to it. From that premise on, what any contract does is to exchange part of those rights for certain benefits to both sides. What this contract tries to do is to keep the give and take on an even basis so that the quid is balanced with the quo equally for both parties. It is up to the artist to make sure he or she is being fairly treated. Some commissioning stations, for example, begin negotiations with a pretty heavy finger on the scale, claiming that the large costs of production, advertising, etc., entitle them to most of the rights over the work. The argument may hold for the station’s employees over whose work the station may have blanket rights, but not for the independent artist who already owns his or her package and barters rights in exchange for guarantees of how it is to be used, compensation and so on.
In television, including public broadcasting, contracts are commonplace. The following contract is not earthshaking, innovative, or novel in the law. It may, however, be innovative for the video artist. It is drafted in the traditional legal format and deals with the issues that matter. The artist should become familiar with the import of its language.
If we could win acceptance for a form contract tilted somewhat in favor of the artist who takes most of the risks, makes the most creative effort, and who, by rights, ought to be the one to propose “terms of agreement,” we will have taken another small step towards vindicating the economic rights of artists—a primary and continuing concern of Advocates for the Arts.
Model Video Broadcast Contract
Dear _______________
This letter will confirm the agreement reached between A. Artist (herein “the Artist”) and Broadcasting in Education (herein “BIE”).
Part 1. BIE hereby commissions the Artist to create a video work having as a working title, “The High Tower” (herein “the Work”). In connection with the production of the Work the Artist shall have the right to use the production facilities of BIE in accordance with Schedule A attached hereto. The Work shall be approximately fifty minutes in length and deal with the subject of high towers. The Artist agrees to consult with members of the staff of BIE at reasonable times, although it is recognized that all artistic decisions with respect to the Work shall be made by the Artist.
Comment: The main thrust of the commissioning clause is to provide for the Work to be commissioned. Usually it will be unnecessary to describe the Work beyond the title and possibly the subject matter. The Artist should be able to use the facilities of the station, and, while he may be required to consult with station staff, it should be clear that artistic decisions will be made by the Artist. Schedule A to the agreement is intended to include the details of the Artist’s permitted use of the station’s production facilities, including such items as hours and days per week a facility will be available, equipment and supplies available to the Artist and personnel available to the Artist.
Sometimes the commissioning program involves the Artist serving as an artist-inresidence, or performing services in addition to producing the Work. Under such circumstances, the contract should be specific concerning the nature of the additional work to be performed by the Artist, the amount of time the Artist will be required to devote and additional compensation, if any. If the rendition of these additional services will possibly cause a time conflict for the Artist, the times and dates for the performance of these additional services should be subject to mutual agreement.
Part 2. In consideration for the rights to the Work granted to BIE hereunder, the Artist shall be paid the sum of three thousand dollars ($9,000) as a fee for the Artist’s services payable as follows:
One thousand five hundred dollars ($4,500) upon execution of this agreement; and
One thousand five hundred dollars ($4,500) within 30 days of the completion of the Work or upon broadcast of the Work, whichever is earlier.*
The Work shall be deemed completed upon delivery of a finished master tape to BIE. In connection with the creation of the Work, BIE will reimburse the Artist for the expenses itemized on the expense schedule annexed hereto.
*Note: All money amounts and time periods given are, of course, arbitrary, included for the sake of continuity, and are not intended to suggest actual rates and conditions.
Comment: Aside from the obvious fact that the amount to be paid the Artist should be explicitly stated, some attention should be given to the language used to describe the method of payment. Care should be taken so that payments are related to objective events, such as selected date or delivery of a finished segment, rather than subjective criteria such as approval or acceptance of the Work. Additionally, if a payment is to be made upon the happening of an event under the control of the station, an outside date should be included in the schedule. Thus, if the last payment is to be made when the program is broadcast, the clause should read: “The final installment shall be paid the Artist when the Work is broadcast, but if the Work is not broadcast by November 30, 1996, then the final installment shall be paid the Artist on or before said date.” If the station agrees to reimburse the Artist’s expenses, the Artist should be prepared to conform to a station policy on expense vouchers. Some care should be taken in the preparation of the expense schedule so as to avoid disagreements over expenses after they have been incurred.
Part 3. All right, title and interest in and to the Work and all constituent creative and literary elements shall belong solely and exclusively to the Artist. It is understood that the Artist may copyright the Work in the Artist’s name. The Artist grants BIE the right to have four releases of the Work on station WBIE for a period of two years commencing with the completion of the Work. A release is defined as unlimited broadcasts of the Work in a consecutive seven-day period; such consecutive seven-day period beginning with the first day the Work is broadcast. At the end of said two-year period, the master tape and all copies of the Work in BIE’s possession shall be delivered to the Artist by BIE. All rights not specifically granted to BIE are expressly reserved to the Artist. This agreement does not grant BIE permission to distribute or broadcast the Work over the Internet or any other form of electronic media.
Comment: The language suggested confirms the principle that the Artist owns all rights to the resulting Work, including the copyright. The station can be expected to argue that the Artist is an employee for hire under the copyright law and the copyright should belong to the station. When the contract provides for the Artist to retain the copyright, the Artist should, as a matter of practice, register the copyright to the Work. The sentence describing the grant of release rights to the station is intended as an example rather than a suggestion. One major area of discussion will be the “rights” issue. In general, the commissioning station will seek to acquire rights to distribute or broadcast the Work in the non-commercial, educational, nonsponsored or public television markets. While most persons involved in the field have some general understanding of the meaning of the foregoing terms, working out wording for appropriate definitions would be useful.
When dealing with the “rights” question, two issues should be separated. First is the issue of who controls the rights, i.e. who can arrange for broadcasting, and the second is whether there will be a sharing of receipts from the following guidelines:
a. The Artist should not grant a license to the station to exploit or distribute the Work in a market in which the station does not actively participate. Thus, if a station has had no experience dealing with cable television, the station should not request a license in such a market. Certainly, if such a license is granted in a previously unexploited area, it should only be on a non-exclusive basis. Even though the grant of a non-exclusive license has some appeal as a compromise, the Artist should be aware that if the work has commercial value, a distributor may wish to have all the exclusive rights. Accordingly, the fact that there are non-exclusive licenses outstanding might affect the marketability of the Work. On the other hand, if the station is very active in a market, for example distribution to school systems, it might be in the interest of the Artist to have the station serve as a licensee for that market. Under such circumstances the second issue, sharing of revenues or royalties, becomes relevant.
b. All licenses granted by the Artist should be limited as to geographic area and as to time. There should be no reason to grant world wide rights in perpetuity to a station unless the artist views himself basically as creating the Work for the station rather than for him or herself. Retaining the right to permit streaming broadcasts via the station’s Web site, or via other electronic or Web based media, also acts as a limitation upon the station to distribute the work to a wider-than-negotiated audience or market.
c. If the Artist expects to realize a financial return from a grant of a license, the Artist should have the right to terminate the license if certain minimum levels of income are not reached. Thus, purely by the way of example, if the Artist grants the station a seven year license to exploit the Work in the educational market, and the Artist has not received at least $3,000 by the end of the third year of the license, he should have the right to terminate the license.
d. If the contract gives the Artist a percent of royalties received from the station’s exploitation of the Work, at least three principles should be observed. First, percentages should be based on gross receipts rather than profits. From experience, whenever the concept of net receipts or net profits is introduced, there is created an area of potential dispute as to what can be deducted from receipts to arrive at net profits. Second, the station should be obligated to remit the Artist’s share of royalties at least semi-annually and such royalties should be accompanied by a royalty statement. Third, the Artist should have the right to inspect the books of the station at least annually for the purpose of verifying royalty statements. When royalties are involved, the Artist should at least consider requesting an advance against royalties.
e. Theatrical, sponsored television, commercial and subsidiary rights should be held exclusively by the Artist. Some or all of these rights, of course, can be granted to the station in return for a lump-sum payment or royalty participation.
f. All grant of rights or license clauses should end with this sentence: “All rights not specifically granted to the station are expressly reserved to the Artist.”
The Artist should recognize that the fee payable under Paragraph 2 and the rights granted to the station under Paragraph 3 are very much negotiable matters. No general rule covering all artists can be formulated. For example, one artist might be willing to grant greater commercial rights to the station in return for a larger fee. To another artist, however, the amount of the fee could be less important compared to the rights he or she wishes to retain.
Part 4. BIE shall not have the right to edit or excerpt from the Work except with the written consent of the Artist. Notwithstanding the foregoing, BIE shall have the right to excerpt up to sixty (60) seconds of running time from the Work solely for the purpose of advertising the telecast of the Work or publicizing the activities of BIE. On all broadcasts or showings of the Work (except the up to sixty (60) seconds publicity uses referred to above) the credit and copyright notice supplied by the Artist shall be included.
Comment: This clause limits the station’s rights to edit or change the Artist’s work and limits rights to excerpt except under stated circumstances. The language assumes that the Artist has included a credit and copyright notice in the Work. The station may request the Artist to include an acknowledgment among the credits recognizing the station’s contributions to the creation of the Work.
Part 5. BIE will be provided with the Master Copy of the Work, which it shall hold until termination of the license granted to it in Paragraph 3 above (or, if more than one license has been granted, the clause should refer to the lapse of the last license). BIE agrees to take due and proper care of the Master Copies in its possession and insure its loss or damage against all causes. All insurance proceeds received on account of loss or of damage to the Master Copy shall be the property of Artist and shall be promptly transmitted to Artist when received by BIE. Artist shall receive one copy of the Master of the Work in any format selected by the Artist. BIE agrees to use its best efforts to give the Artist reasonable notice of scheduled broadcast dates of the Work.
Comment: Custody of master copies and duplicate versions will largely depend on the nature and extent of rights to exploit the Work granted or reserved by the Artist. The Artist should understand that usually, a station will attempt to disclaim responsibility for caring for the Masters. In general, the law does not impose absolute responsibility on the station to take care of the Masters, be they in tape, DVD, or some other form. In the absence of language in the contract, the station will be held to what is described as a negligence standard. It will be liable for loss of the Master Tape or damage to it if the station has been negligent. While the Artist, through bargaining, may not be able to improve upon this measure of responsibility, the Artist should not contractually relieve the station of this responsibility to adhere to the negligence standard.
Part 6. The Artist authorizes BIE to use the Artist’s name, likeness and biographical material solely in connection with publicizing the broadcast of the Work or the activities of BIE. The Artist shall have the right to reasonably approve all written promotional material about the Artist or the Work.
Comment: Because of right of privacy law, the station must acquire the consent of the Artist to use the Artist’s name, picture or likeness in connection with advertising or trade purposes. The Artist should limit this consent to use in connection with the Work or in connection with promotions for the station. It is of course desirable for the Artist to be able to approve all promotional material relating to the Artist or the Work. However, the station may not readily agree to this proposal. Under such circumstances, if the Artist wants specific material included in promotional pieces, the Artist should prepare this material beforehand and obtain the station’s agreement to include this material in its promotional pieces.
Part 7. The Artist represents that he or she is authorized to enter into this agreement; that material included in the Work is original with the Artist or the Artist has obtained permission to include the material in the Work or such permission is not required; that the Work does not violate or infringe upon the rights of others, including but not limited to copyright and right of privacy; and that the Work is not defamatory. The Artist agrees to indemnify BIE against any damages, liabilities and expenses arising out of the Artist’s breach of the foregoing representations.
Comment: The Artist should expect to represent to the station that the Work and material contained in the Work are not defamatory, do not infringe upon any copyrights and will in general not violate rights of others. The language of the indemnity or hold harmless clause should be examined closely. The Artist should not be liable to the station unless there has been an actual breach of the representations as distinguished from merely a “claimed” breach of the representations. Some hold harmless clauses are worded so that if someone claims the Work is, for example, defamatory, the station is permitted to settle the claim and charge the settlement to the Artist. It is this latter circumstance that is to be avoided. Consideration should also be given to obtaining insurance coverage for the Work against defamation, copyright and right to privacy claims. Stations usually have a form of this so-called “errors and omissions” insurance. Also, at least one artist has suggested that a station should be required as a preliminary matter to have its attorney view the Work to determine the probability of defamation or right of privacy claims. Based upon the advice of its attorney, the station would determine whether or not to broadcast the Work. If it elects to broadcast the Work, it would then assume the risk of such lawsuits. The rationale for such an argument is that a station usually has an existing relationship with a lawyer and, as between the station and the Artist, is in a better position to evaluate the possibility of such litigation and be guided accordingly. This point is being raised for discussion purposes.
Part 8. In the event BIE files for bankruptcy or relief under any state or federal insolvency laws or laws providing for the relief of debtors, or if a petition under such law is filed against BIE, or if BIE ceases to actively engage in business, then this agreement shall automatically terminate and all rights theretofore granted to BIE shall revert to the Artist. Similarly, in the event the Work has not been broadcast within one year from the date the Work is completed (as the term completed is defined in Paragraph 1), then this agreement shall terminate and all rights granted to BIE shall revert to the Artist. Upon termination of this agreement or expiration of the license granted to BIE under this agreement, all copies of the Work shall be delivered to the Artist.
Comment: This clause is intended to terminate the contract if the station should go bankrupt or cease business. Also, while a station usually will not agree to actually broadcast a Work, if it does not broadcast the Work by a given date, the agreement will terminate. Both of these clauses are intended to allow the Artist to find other means of exploiting the Work if the station goes out of business or, in essence, refuses or fails to broadcast the Work.
Part 9. This agreement contains the entire understanding of the parties and may not be modified, amended or changed except by a writing signed by the parties. Except as is expressly permitted under this agreement, neither party may assign this agreement or rights accruing under this agreement without the prior written consent of the other except either party may assign rights to receive money or compensation without the other party’s consent. This agreement shall be interpreted under the laws of the State of New York.
Comment: This is the “boilerplate” or standard jargon usually included in written agreements, and should be self-explanatory. Also, as a miscellaneous matter, the Artist should be prepared to adhere to policy “taste” standards or rules adopted by the station. Most stations have some form of policy guidelines and the Artist should obtain a copy of these guidelines before signing the contract.
Broadcasting in Education
Whereas the Artist desires to have this Work distributed by the Dealer; and
Whereas the Dealer wishes to undertake the distribution of said Work; and
Whereas the parties wish to have said distribution performed subject to the mutual obligations, covenants, and conditions herein.
Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:
1. Artist hereby grants to the Dealer the exclusive right to sell or lease the Work in the United States of America for the term of this agreement. The exclusive right granted hereby includes only the limited license to sell or lease the physical videotape cassettes representing single copies of the Work recorded thereon. All rights not granted hereunder are reserved to the Artist, including but not limited to the right to distribute or broadcast the Work over the Internet or in any other electronic media. In no event shall there be a sale or leasing consisting of less than the entirety of the Work as described above.
2. The term of this agreement shall be for a period of two (2) years, commencing as of the date set forth above.
3. Dealer agrees to give best efforts to promote the sale and leasing of the Work and to protect the Work from copyright infringement or illicit copying or distribution by others.
4. Dealer agrees to pay Artist for the rights granted hereby royalties in an amount equal to the following percentages of Dealer’s adjusted gross proceeds from the Work:
a. For the sale of copies of the Work by Dealer…50 percent;
b. For all leasing proceeds . . .. . .. . .. . .. . .. . .. . .. 50 percent.
For the purpose of this provision, “Dealer’s adjusted gross proceeds from the Work” shall mean all revenues derived by Dealer from the sale or leasing of the Work after deducting only all taxes collected by the Dealer. Dealer shall furnish Artist quarterly reports during January, April, July, and October of each year showing, for the preceding three months, and cumulatively from the commencement of this agreement, the number of copies of the Work sold by the Dealer, “Dealer’s adjusted gross proceeds from the Work,” and the royalties due Artist. Such report shall be accompanied by payment of all royalties to Artist for the period covered by such report.
5. It is understood that only fifty (50) copies of the Work shall be made, of which the Dealer shall have the right to sell twenty-five (25) of the said copies. The Dealer shall also have the right to request additional copies of the Work for leasing, subject to the consent of the Artist. Artist agrees that the Dealer may contract with purchasers or lessees of the Work to replace worn, defective, or mutilated copies of the Work and, further, that the Artist shall be entitled to no royalty in the event of such replacement. Dealer agrees that no copy of the Work alleged to be worn, defective, or mutilated will be replaced unless said copy is returned to the Dealer for destruction by the purchaser or lessee.
6. All copies of the Work shall be made at Dealer’s cost from the master tape. It is understood that the master tape will remain the Artist’s property and in his or her control, provided that it shall be used as necessary to make copies of the Work for sale or leasing under the terms of this agreement. All copyright and other literary property rights in the Work for the entire term of the copyright and any renewal thereof shall belong exclusively to the Artist. The master tape of the Work and each copy thereof shall bear a copyright notice in the Artist’s name.
7. The retail selling price of each copy of the Work shall be _______. It is agreed that Dealer may, in the exercise of reasonable business discretion, increase or reduce the price charged for any copy of the Work by ten percent (10%) in order to further the sales of the Work and the realization of returns from the exploitation of the Work. Dealer shall periodically consult with the Artist concerning Dealer’s marketing program and pricing policies with respect to the Work.
8. Dealer shall not sell or lease any copy of the Work unless the purchaser or lessee agrees, in writing, that under no circumstances shall any further copies of the Work be made by the purchaser or lessee and that the purchaser or lessee shall neither broadcast their copy of the Work nor permit the charging of admission to view the Work.
9. The Artist agrees that Dealer shall have the right to list the Work, with appropriate descriptive material, in any catalog that Dealer publishes or maintains. The Artist further agrees that Dealer may use and authorize others to use the Artist’s name, likeness, and biographical material for the purpose of publicizing and promoting sales or leasing of the Work pursuant to this agreement.
10. Dealer agrees that neither this agreement nor any rights granted Dealer hereunder may be assigned without the prior written consent of the Artist. The Artist may freely assign this agreement, either in whole or in part.
11. This agreement shall automatically be renewed for successive periods of one year, each renewal commencing on the expiration date set forth above unless canceled by sixty (60) days written notice given by either party prior to the expiration of the term of this agreement or any renewal thereof.
12. This agreement shall be binding upon the parties and their respective heirs, successors, and assigns.
13. Dealer and Artist agree to arbitrate any claim, dispute, or controversy arising out of or in connection with this agreement, or any breach thereof, before an agreed-upon arbitrator, or, if no arbitrator can be agreed upon, before the American Arbitration Association, under its rules in the following city______________________.
14. The agreement constitutes the entire agreement of the parties and may not be changed except by an agreement in writing signed by both parties.
15. This agreement shall be construed under the laws of the State of New York applicable to agreements made and to be performed solely within such State.
IN WITNESS WHEREOF, the parties have signed this agreement as of the date set forth above.
It is hereby acknowledged and agreed that the copy of the videotape listed above is being purchased solely for noncommercial use and that acquisition of this copy is subject to the following conditions:
1. All copyrights and other rights of reproduction or commercial exploitation, including the right to make copies of the videotape, are reserved to the gallery.
2. The purchaser agrees not to make or permit others to make any copies of this videotape; not to broadcast or charge admission fees to any showings of the copy in any place; not to utilize the copy in advertisements in any media or utilize the copy commercially in any way; and not to make photographs or reproductions from the copy.
3. The purchaser agrees not to show the videotape to others, other than in its entirety and with sound, if any.
4. The purchaser agrees not to sell or transfer this copy to anyone unless the person acquiring the copy agrees to be bound by the provisions of this agreement. The purchaser further agrees to notify the seller of any such transfer and to furnish the gallery with the name and address of the new owner.
5. The purchaser agrees not to rent or lend the copy to others or to permit others to use the copy in violation of the terms of this agreement.
6. The purchaser agrees that the rights given by this agreement shall also run in favor of the artist who is the author of the videotape and to the present and future holders of the copyrights thereon.
7. The gallery agrees to replace the copy of the videotape upon the purchaser’s return of the copy purchased. The cost of replacement shall be the gallery’s if the copy is defective and the purchaser’s if the copy has been damaged in use.
The gallery acknowledges receipt of the purchase price set forth above and the purchaser acknowledges receipt of the copy of the videotape.
