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At the suggestion of a response to another post, I am reposting this issue
with a new header. Sorry for the redundancy.
I contracted with an artist to photograph a group of school children and
paint them digitally for a single specific use as a permanent art
installation. The contract follows at the end of this post.
Throughout the project the artist and I worked together to expedite the
completion (worked together meaning I made additions to and modifications
to the artwork).
Due to a number of health and stress factors, the artist became mentally
incapacitated. I offered to finish the project myself and he threw me out
of his apartment in a rage, threatened to sue me if I didn't sign a release
saying the project was finished and delivered, and did not return phone
calls or emails for several days leaving me in a very bad position with my
client and expired deadline.
In the mean time I completed the project myself. The artist's wife/rep
emailed my rep to state that I had agreed to finish the project and
reiterated the request for the balance due for me to secure usage. Five
days later the artist's wife/rep emailed and offered to complete the
project. By this time I had completed the work.
Questions
1) Since the artist is technically in breach of contract for not
delivering the completed art or artist's proof, I repeatedly worked on the
project collaboratively, was asked by him to work on the project to help
out, and ultimately finished the project, do I have any claim to the
copyright?
2) The artist did not secure releases from the photographed children's
parents/guardians. Can he resell the artwork regardless? If not, is the
copyright really good for anything other than preventing others from usage?
3) If the artist retains the copyright, can I photograph the installation
and use it for promotional purposes? Can the photograph of the
installation be sold without the artist's permission?
4) As a design firm that often has to contract out work, how should I
explain the copyright situation to a client? Should I claim in the
contract that I have the copyright even though I don't? Or should I tell
the client that this 3rd party he doesn't know and never met holds the
copyright and that any future usage will have to be negotiated with him?
Big agencies must have to deal with this without doing a 100% buyout.
What's standard? I feel like I mislead the client on this one because I
didn't know how to handle it.
---------------------Start of contract------------------------
Assignment Description
Create artist fine art interpretation of Leonardo Da Vinci painting--Last
Supper using children between the ages of 8-13 instead of the usual
subjects depicted. Poses, table and still life props to be as close as
possible to the original painting. Final PSD/TIFF @150DPI in digital
format to be delivered after approved/signed acceptance of signed artist
proof. Upon acceptance of digital file, assignment is considered
finished.
Usage Specification
Specific usage: Wall hanging purpose in Dallas Catholic Church
Assignment Price
($$$)
Advance Payments
50% payment prior to commencing project, remaining upon finishing
assignment (verbally we agreed to payment upon project installation by
3rd party and payment of balance due by church and to my knowledge,
verbal contracts are valid in Texas.)
Conditions or Transaction
The copyright to all images created or supplied pursuant to this
agreement remains the sole and exclusive property of the
Artist/photographer. There is no assignment of copyright, agreement to do
work for hire, or intention of joint copyright expresses or implied
hereunder. The client is licensed to above usage specifications, proper
copyright notice, which reads copyright 2005...(and signed)
All usage beyond that defined above requires additional written license
from Artist/Photographer or Representative.
-----------------------End of contract------------------------
-Bill
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Bill,
Mcgyver gives good advice so heed what he has written
1) Since the artist is technically in breach of contract for not
delivering the completed art or artist's proof, I repeatedly worked on the
project collaboratively, was asked by him to work on the project to help
out, and ultimately finished the project, do I have any claim to the
copyright?
I read your contract and there is no deadline. I'm not sure that there is
a breach therefore. You have a conract with the artist. You have a contract
with a client. If there is a deadline with the client then you are in breach
not the artist. I presume that the deadline is Easter and I don't think
you'll meet it. Of course the wall hanging may be used next year.
I think that since the contract between you and the artist does discuss
copyright that it would be unwise to assume that you now have any claim to
the copyright that exceeds your contract.
2) The artist did not secure releases from the photographed children's
parents/guardians. Can he resell the artwork regardless? If not, is the
copyright really good for anything other than preventing others from
usage?
Can he resell the artwork,yes. But he has no right to use these images
and may be sued. I think you're correct that the copyright won't be worth
much to any. That he failed to obtain model's releases supports your claim
that he was having a breakdown, no photographer would forget this.
3) If the artist retains the copyright, can I photograph the installation
and use it for promotional purposes? Can the photograph of the
installation be sold without the artist's permission?
You may certainly take some pictures for your portfolio. You may not sell
pictures of this work. The copyright isn't yours and the artist failed to
obtain model's releases so you could be sued by lots of people.
4) As a design firm that often has to contract out work, how should I
explain the copyright situation to a client? Should I claim in the
contract that I have the copyright even though I don't? Or should I tell
the client that this 3rd party he doesn't know and never met holds the
copyright and that any future usage will have to be negotiated with him?
Big agencies must have to deal with this without doing a 100% buyout.
What's standard? I feel like I mislead the client on this one because I
didn't know how to handle it.
Lying to your client in a contract is not a good idea, do not pretend
that you have a copyright. I agree that you're in over your head here and
I'm not sure what advice to give you. Without model's releases I'm not sure
that the church should display the work. Assuming that the church may
display the work that's about all that they can do. Pictures with the work
in the background are probably ok. Anything else will violate the copyright.
The church does not have any claim on the copyright.
Dave M.
---------------------Start of contract------------------------
Assignment Description
Create artist fine art interpretation of Leonardo Da Vinci painting--Last
Supper using children between the ages of 8-13 instead of the usual
subjects depicted. Poses, table and still life props to be as close as
possible to the original painting. Final PSD/TIFF @150DPI in digital
format to be delivered after approved/signed acceptance of signed artist
proof. Upon acceptance of digital file, assignment is considered
finished.
Usage Specification
Specific usage: Wall hanging purpose in Dallas Catholic Church
Assignment Price
($$$)
Advance Payments
50% payment prior to commencing project, remaining upon finishing
assignment (verbally we agreed to payment upon project installation by
3rd party and payment of balance due by church and to my knowledge,
verbal contracts are valid in Texas.)
Conditions or Transaction
The copyright to all images created or supplied pursuant to this
agreement remains the sole and exclusive property of the
Artist/photographer. There is no assignment of copyright, agreement to do
work for hire, or intention of joint copyright expresses or implied
hereunder. The client is licensed to above usage specifications, proper
copyright notice, which reads copyright 2005...(and signed)
All usage beyond that defined above requires additional written license
from Artist/Photographer or Representative.
-----------------------End of contract------------------------
-Bill
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"David Martel" <marte005@earthlink.net> wrote in
news:EWz%d.203$gI5.91@newsread1.news.pas.earthlink.net:
I appreciate your input and you're basically telling me what I expected.
Just grasping at straws. As far as the model release goes, the client,
(church/church school) has a release with the children, but the
photographer does not.
Since I completed the work myself, am I obligated to turn the digital
file over to the artist/copyright holder?
The finished artwork is indeed due by Easter, but it is a permanent tile
installation produced from digital art. My contract does not specify a
deadline either so I am not in contract breach.
The reason I ask about the copyright is that the artist verbally promised
a stand in print if the tile installation wasn't done in time. He's
trying to renege, but I already promised the client. A loop hole would
be that the artist's contract with me mentioned he would provide a final
artist's proof. Since I had to provide the artists proof to the client,
this proof could be used as the stand in and I assume there's no
violation to he spirit of the copyright.
I think my biggest hang up in all this is that I feel guilt in treating a
charity like a regular business. If this were a business I wouldn't feel
compelled to "violate" the copyright and make prints of the work for 12
children for no cost. Since it's a church I feel the artist/copyright
holder is taking advantage. I'm used to going the extra mile and then
some to make people happy even if it costs me a little. We're talking a
few buck in the scheme of a big project. Of course, since I'm not the
copyright holder, that's not for me to decide. Live and learn...
Bill,
Mcgyver gives good advice so heed what he has written
I read your contract and there is no deadline. I'm not sure that
there is
a breach therefore. You have a conract with the artist. You have a
contract with a client. If there is a deadline with the client then
you are in breach not the artist. I presume that the deadline is
Easter and I don't think you'll meet it. Of course the wall hanging
may be used next year.
I think that since the contract between you and the artist does
discuss
copyright that it would be unwise to assume that you now have any
claim to the copyright that exceeds your contract.
Can he resell the artwork,yes. But he has no right to use these
images
and may be sued. I think you're correct that the copyright won't be
worth much to any. That he failed to obtain model's releases supports
your claim that he was having a breakdown, no photographer would
forget this.
You may certainly take some pictures for your portfolio. You may
not sell
pictures of this work. The copyright isn't yours and the artist failed
to obtain model's releases so you could be sued by lots of people.
Lying to your client in a contract is not a good idea, do not
pretend
that you have a copyright. I agree that you're in over your head here
and I'm not sure what advice to give you. Without model's releases I'm
not sure that the church should display the work. Assuming that the
church may display the work that's about all that they can do.
Pictures with the work in the background are probably ok. Anything
else will violate the copyright. The church does not have any claim on
the copyright.
Dave M.
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You're looking at it all wrong. That interim stuff that you have on your
computer is the final product. Pay the final fee along with a nice letter
thanking the artist for completing the project. Keep your copy of the
letter. If he doesn't respond to the letter, it becomes evidence. This
way, you have the copyright license that you wanted all along. It's in the
original contract. So put up the mural, take the credit, everything's fine.
If the artist someday tries to say that you don't have a license in the
interim work, he will be saying that he breached the contract by not
finishing, and that he never earned that final payment. That would be too
stupid. He will never deny finishing the project and deserving the fee.
And after some time has gone by, nobody will be able to prove what was
interim and what was final, and you won't remember, and you'll have a new
computer by then.
At the suggestion of a response to another post, I am reposting this issue
with a new header. Sorry for the redundancy.
I contracted with an artist to photograph a group of school children and
paint them digitally for a single specific use as a permanent art
installation. The contract follows at the end of this post.
Throughout the project the artist and I worked together to expedite the
completion (worked together meaning I made additions to and modifications
to the artwork).
Due to a number of health and stress factors, the artist became mentally
incapacitated. I offered to finish the project myself and he threw me out
of his apartment in a rage, threatened to sue me if I didn't sign a
release
saying the project was finished and delivered, and did not return phone
calls or emails for several days leaving me in a very bad position with my
client and expired deadline.
In the mean time I completed the project myself. The artist's wife/rep
emailed my rep to state that I had agreed to finish the project and
reiterated the request for the balance due for me to secure usage. Five
days later the artist's wife/rep emailed and offered to complete the
project. By this time I had completed the work.
Questions
1) Since the artist is technically in breach of contract for not
delivering the completed art or artist's proof, I repeatedly worked on the
project collaboratively, was asked by him to work on the project to help
out, and ultimately finished the project, do I have any claim to the
copyright?
2) The artist did not secure releases from the photographed children's
parents/guardians. Can he resell the artwork regardless? If not, is the
copyright really good for anything other than preventing others from
usage?
3) If the artist retains the copyright, can I photograph the installation
and use it for promotional purposes? Can the photograph of the
installation be sold without the artist's permission?
4) As a design firm that often has to contract out work, how should I
explain the copyright situation to a client? Should I claim in the
contract that I have the copyright even though I don't? Or should I tell
the client that this 3rd party he doesn't know and never met holds the
copyright and that any future usage will have to be negotiated with him?
Big agencies must have to deal with this without doing a 100% buyout.
What's standard? I feel like I mislead the client on this one because I
didn't know how to handle it.
---------------------Start of contract------------------------
Assignment Description
Create artist fine art interpretation of Leonardo Da Vinci painting--Last
Supper using children between the ages of 8-13 instead of the usual
subjects depicted. Poses, table and still life props to be as close as
possible to the original painting. Final PSD/TIFF @150DPI in digital
format to be delivered after approved/signed acceptance of signed artist
proof. Upon acceptance of digital file, assignment is considered
finished.
Usage Specification
Specific usage: Wall hanging purpose in Dallas Catholic Church
Assignment Price
($$$)
Advance Payments
50% payment prior to commencing project, remaining upon finishing
assignment (verbally we agreed to payment upon project installation by
3rd party and payment of balance due by church and to my knowledge,
verbal contracts are valid in Texas.)
Conditions or Transaction
The copyright to all images created or supplied pursuant to this
agreement remains the sole and exclusive property of the
Artist/photographer. There is no assignment of copyright, agreement to do
work for hire, or intention of joint copyright expresses or implied
hereunder. The client is licensed to above usage specifications, proper
copyright notice, which reads copyright 2005...(and signed)
All usage beyond that defined above requires additional written license
from Artist/Photographer or Representative.
-----------------------End of contract------------------------
-Bill
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