Art Law Basics – Part 2

Art Law Basics -part 2

Originally Posted 23/04/2013

 Art and the Law? Part 1 
Starbucks Logo

Design art is different to copyright because it patents the shape, pattern and ornamentation
of the design, enabling the designer/ company to monopolize that particular design for 10 years.

Trade marks or ™  patents names and logos.  It is important to register your business name or domain main before someone else takes it and says you stole their name.

When enabling people to use or hand over patenting  rights you need a contract. Contracts can be oral, in writing, partly written partly orally or implied by people’s conducts or actions, but the best way is a written contract.

Contracts are like promises, which are legally binding and hold consequences if broken.  They are used to flush out issues and let each party know what is happening, without misunderstandings.

Licensing (giving permission Assignment rights (ownership)
Written contract yes yes
Verbal contract yes no
Retain ownership yes no
Time limit yes no
Royalties payed yes no
Geographic area yes yes
Moral rights yes yes
moral rights chart

Business structure

This was the area that I got a bit lost in, so I hope I can explain it ok (@.@)

You can either structure yourself as an unincorporated or incorporated business, which means is your business run by you as an individual or is the business an entity in itself.  Some examples of an unincorporated business (who works for profit) are sole traders, partnerships or joint venture and for incorporated it’s proprietary Ltd company and co-operative.

A person who is a hobbyist can earn income and doesn’t have to pay taxes, but at the same time they can’t deduct expenses from tax.  If they happen to make over a certain amount then they have to become a professional.

 The next point that was addressed was being an employee in a company compared to a contractor from another company/ or free lancer.  If you are an employee you have to work a certain amount of maximum hours, you have payed leave, workers compensation, tax and superannuation.  Also anything you create at work is copyrighted by the company you work in compared to as an individual.

Finally, the last point was on using your art for prizes and competitions.

  • They have their own terms and conditions
  • Are you eligible for it?
  • Is there an entrance fee?
  • What happens if you don’t win? (Do you keep your copyright?)
  • Do you license or assign your copyright
  • Non-exclusive licence
  • Moral rights
  • The use of your name and personal information (Do they give you credit for the final product?)
  • Warranties
  • Attendance at events (at your own expense)

 

Here’s an example of how artists can be tricked into signing off the ownership of their copyright. Presented by Catherine Moffat a lecturer at the University of Newcastle, Ourimbah campus:

Say for example, some of your friends are in a band and want you to design their logo, in return they will pay you a few dollars or buy you a few drinks, or something like that and because you’re friends, you say ok.  All is going well until your friends make it big and start touring, meaning that the original logo that you designed is now being printed on merchandise such as CD covers, t-shirts, hats etc…  After seeing this, you then ask your friends if you could get some royalties, but they then tell you that they have signed their rights off to their recording company.  The recording company then says that you have no rights to the image anymore because you sold it off for those few beers in the beginning.

The moral of the story is when agreeing to design something for your friends (or clients), make a licencing contract in writing, which states that you still own the copyright, but you give them permission to use your image.  If one day they get famous or use your image for profit, they would then have to pay you back royalties.  

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