What does licensing mean? How do I approach a gallery to sell my work? Do I have to pay taxes? These are questions most artists have to face at one point in their career and if approached in the wrong way can lead to serious financial and legal repercussions. With the help of McCullough Ginsberg Montano and Partners (MGP LLP), we put together a list of basic legal terms and traps artists might face in their practice or when trying to sell their work. This should help you bypass any issues with your gallerist or the IRS.
The Copyright Act (specifically The Visual Artists Rights Act of 1990 (VARA)) protects the creations of visual works of artists. Create an original work of art and the artist automatically owns the work. However, you should register the work. Once you formally register the copyright, the presumption of ownership is yours and anyone who copies it, has to prove it isn’t. Under the law, that’s everything. Go to www.copyright.gov and click “Registration” on the menu bar. It’s easy. It’s fast. Do it. Harvard published a Guide To The Visual Artists Rights Act, which outlines what exactly falls under the term “works of visual art” and other helpful definitions:
VARA covers only limited, fine art categories of “works of visual art”: paintings, sculptures, drawings, prints, still photographs produced for exhibition. Within this group, only single copies or signed and numbered limited editions of 200 or less are actually protected.
If working with a gallery or hired to commission pieces spell out the expectations in black and white including but not limited to: artwork description, medium, size/dimension, price (don’t undersell yourself), amount of deposit (start with 50%, up front), completion date (give yourself time), revision clause (one), signatures (two, over 18 is now legally binding). Make three copies (yours, theirs and for the tax man).
This is related to contracts but the company will use a work that is creatively in sync for a range of products that suite a brand. So, they’ll make t-shirts, or mugs with the image on them and you’ll make money. Negotiate. Focus on specifics including duration and what, exactly, is being licensed. Royalties are from 4% – 30%. Most deals last from 1-3 years and can be renewed or cancelled depending on whether it’s beneficial to both the artist and the company. Think: patterns and sets.
This relates to your legal name/logo/symbol that you use to represent a product (used in commerce), company or entity/commercial source. It protects the owner from unauthorized display or use (infringement) without permission – usually by contract. Avoid using unauthorized trademarks in your work. The law focuses on “likelihood of confusion” between the commercial product represented by the mark and the infringers use of that mark that may confuse the buyer of the product. Limited exceptions include “fair use” and “parody”. Think: Richard Prince. He got away with it because it was arguably transformative. And how.
2. Tax including Estate Planning
Pay taxes on the income from selling/licensing visual work. Focus on keeping good records including receipts. Lots of deductions exist so use an accountant. And a good lawyer! Keep an accurate inventory (establishes prima facie authenticity and authorship and includes images, descriptions, record of sales, loans of work, personal agreements, consignment agreements, sale contracts, representation agreements) of the existing work. Note: art – including the studio, equipment and collected works – is a unique physical asset combining monetary value and reputation, personal and emotional investment.
Insuring your artwork is essential and yet often an overlooked aspect of the life of an artist. Insurance will protect you against any lost or damaged work and any claims made by others. While a general liability policy may cover actual damages to the work and any consequential lawsuit, it will not cover your own work, materials or any employees you may have. If your studio is outside of your home, make sure you get a policy that covers both spaces, as well as the total value of your equipment at either site. As lawyer William Rattner said for Professional Artist Mag:
In terms of their own losses, what artists have to understand is that (their artworks) are assets. They have value. (Artists also) ought to have some kind of a policy that protects against damage as well as vandalism and theft. They can’t just turn to the landlord and say, ‘That pipe burst.’ The landlord will say, ‘That’s right, I’m responsible for repairing the pipe. But I’m not responsible for what you have in your apartment.
For more information or legal advice contact C. Dino Haloulos at email@example.com.
Subscribe to Art Report’s official newsletter for more stories you don’t want to miss.