24 September 2020
Non-exclusive Reproduction Agreements with Artists
By Amalyah Keshet, Senior Consultant
An interesting question came up recently in a museum copyright forum based across the pond. The issue is one that I think has application anywhere one deals with agreements and licences drawn up with artists, authors, and other creators. National legal differences may exist, but it’s still a good example of what in my experience is basically just an exercise in taking a deep breath and thinking the thing out. That’s something we often lose track of when we are swamped with a tempest of professional issues day after day.
The question that came up was this:
“We have a nonexclusive license (NEL) on file for a recently acquired work in our collection. The artist is deceased, but her estate signed our NEL in January 2020. However, I recently discovered that the artist is represented by the Artist Rights Society (ARS). Does our NEL trump ARS, or do we still need to obtain permission from ARS when we want to use an image of the work?”
An NEL is a non-exclusive licence or Artist’s Limited Copyright Agreement, granting free but attributed reproduction use of an artist’s works, specifically those artist’s works in the collection, in the course of typical museum work such as: digitisation, online collections database, museum publicity, exhibition publicity, social media, exhibition catalogs and brochures, fundraising, and so forth. The agreement generally excludes commercial use.
At first glance, one would normally assume that such a non-exclusive and non-commercial licence or agreement, signed by an artist and granted to a specific museum, would take precedence over a broader contract with an agency to represent the artist. However, the other side may not make the same assumption. After all, a non-exclusive licence is, well, non-exclusive. Meaning that an artist grants you certain permissions, but can grant the same permissions to another party.
If the artist in question signed an agreement with DACS (Design and Artists Copyright Society in the UK) or ARS (Artists Rights Society, which is US based) or another copyright management organisation or collecting society and then forgot all about it, or they or their heirs didn’t understand the potential problem when signing something similar with a particular museum – then there could be a conflict. Or at best just confusion.
Simply put, one would have to know the terms of the artist’s contract for representation by ARS (did it give ARS exclusivity?), and who signed with ARS (the artist before his or her death, or his or her heirs after?). Did the heirs actually know the artist was represented by ARS? Whether one agreement overrides the other may indeed be a matter of the order in which the agreements were signed. What rights of representation were granted to ARS, and what reproduction rights were granted to the museum?
Of course, it’s quite possible the issue may simply never arise, or both agreements may be non-exclusive and therefore not conflicting. But it is an interesting question.
I once encountered a situation in which the daughter of a rather famous artist gave permission to reproduce one of her father’s works, for a museum publication. Subsequently, a (European) copyright society sent an invoice for their licensing fee. I explained that permission had been given gratis by the artist’s daughter; and she backed us up on this. But the agency insisted that the terms of their contract with the daughter stipulated that the agency was “obliged” to charge for any reproduction, even if the daughter wanted to give her permission gratis. At this point, I realised that what the copyright society really wanted was its percentage of the fee, no matter what. The daughter gave up and apologised, saying there was nothing she could do.
Just something to file in the back of one’s mind. There can be conflicts between competing agreements and you really can’t tell unless you have the text of both agreements in front of you. Just in case, be prepared, and expect the unexpected to show up unexpectedly.
Just for fun, I’ll add that at the museum where I used to work, we once received a signed non-exclusive agreement embellished with the artist’s own hand-written addendum: “You guys are a bunch of artsy snobs!” (Loose translation.) I never was sure what the precise legal status of that might be.
Exclusive Versus Non-Exclusive
Licences for intellectual property may be exclusive or non-exclusive. Through an exclusive license, you grant the right to use a given piece of intellectual property in a specified manner to one other user; this prohibits other users from using the same property for the duration of the licence. A non-exclusive licence also grants the right to use a given piece of intellectual property in a specified manner; however, you can grant a non-exclusive licence to several users simultaneously.
A copyright collective (also known as a copyright society, copyright collecting agency, licensing agency or copyright collecting society or collective management organisation) is a non-governmental body created by copyright law or private agreement which licenses copyrighted works on behalf of the authors and engages in collective rights management.
Just a few words to introduce myself (you can read the official version here). I’m an American ex-pat living and working in Israel for the last 42 years, first as a curator, and then developing the Image Resources & Copyright Management Department. at the Israel Museum, Jerusalem. Despite degrees in art and art history, I found myself turning into something of a copyright wonk. A Lone Ranger when it came to museum copyright in Israel, I had to invent the profession, taking advantage of – and delighting in – an international network of copyright lawyers, scholars, and practitioners on both sides of the pond. The application of copyright concerns in museums in Israel was a new “consciousness raising” adventure. I learned immense amounts and encountered innumerable memorable issues and debates. I had the privilege of witnessing the Knesset (Parliament) debates formulating Israel’s new Copyright Act of 2007. It was creative, absolutely, and has continued to be an endlessly fascinating adventure.
© Naomi Korn Associates, 2020. Some Rights Reserved. The text is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)
Disclaimer: The material in this blog post is for general information only and is not legal advice. Always consult a qualified lawyer about a specific legal problem.