This is our second installment of Ask an Arts Attorney, in which arts and entertainment lawyer Jenny Milana of DangerMilana answers your questions on legal issues relating to work in the arts.
Incidentally, if you have any arts law questions, send them our way for a future “Ask an Arts Attorney” post.
Please note: this post is for informational benefit only and should not be used in place of actual legal services. Also, as a state agency, the Massachusetts Cultural Council does not endorse any individual business or service.
Now onto matters copyright, contract, and e-publishing!
Is it ok to take a published paperback novel and turn it into a piece of fine art by altering it and making it no longer readable and not having the title or author showing? The pieces would then be for sale. Thanks!
An artist with a novel idea
Dear novel idea,
What you are describing is called a derivative work. A derivative work is when an author creates a new work of art that incorporates copyrighted material, whether identifiable or not. What might be considered unidentifiable to some may be identifiable to others though. Only the original author of the novel has the right to use or license for use the copyrighted work to create a derivative work. When a derivative work is created, in this case the fine art, the fine art is copyrightable. However, the copyright in the fine art only covers the new material. It does not extend to the previously copyrighted work, the novel.
Another thing to be careful of when you create a derivative work is you could be violating rights other than copyright. For example, if the author has a trademark or other marks that are protected on the pages of the book, you would be possibly violating trademark rights if there is any way that the consumer could think the work was authorized or created by the trademark owner.
When you create an original work of the fine art, you hold the right to create derivative works or license others to create derivative works. An example is I could not take a photograph of your piece of fine art and then turn around and sell the photograph. That would be a derivative work, even if I used Photoshop and mutilated the image to the point your work was unidentifiable. I could not have created the photo without incorporating the image of your fine art. As the author of that fine art, you would want the ability to sell photographs.
Ultimately, my suggestion to you is to use books that are in the public domain. This way there is no copyright to worry about. Avoid using images from any books in the public domain though as those may not be part of the public domain. There are several books that are part of the public domain and are newer than 1923, but if you want to be truly on the safe side, any book first published in the US prior to 1923 are part of the public domain.
I do not like to make prints or reproductions of my work. I sent a painting to a dealer to show a customer not too long ago and I was told by a fellow artist that I should have made up a contract stating that I didn’t want to have reproductions made of my work, in any form. I thought the dealer would have to ask for my permission to do if that were to occur.
My question is: Should I have made up a contract for the dealer to sign stating that under no circumstances there will be no reproductions of my work without my written consent?
The painting’s the thing
Dear painting’s the thing,
The answer to your questions is yes and no. Yes, every time you send your work to a dealer you need to send along a written statement. No, you do not need a contract that the dealer must sign to prevent your work from being reproduced.
There is a Massachusetts law (MGL 104A) that covers this issue. When you send a Gallery your painting and the Gallery is being paid to exhibit or sell the painting, the painting is considered on consignment. Auction houses are excluded from this statute. It sounds as though the situation you describe falls under this statute.
When you deliver your work to the dealer you are supposed to furnish to the dealer a written statement indicating you delivered your work of art. This statement should include your name as the artist and your name as the owner of the work, the title of the work if any, the medium and dimensions of the work, the date of completion, the date of delivery and the anticipated fair market value of the work. The dealer must keep a copy of that statement as an acknowledged acceptance of delivery and if the work is sold, the dealer is to record the date it sold, the amount it sold for and the name and contact information for who purchased the work. The dealer then sends the funds owed to you, the artist. These records are supposed to be kept for 4 years after completion of the sale and payment is to be made to you within 90 days of the sale or the dealer can incur fines.
Under this arrangement, the dealer is acting as an agent for you the artist and the property is held in trust by the dealer for the benefit of you the artist. Your work can never be subject to a claim by a creditor of the dealer and the dealer is responsible for any damage or loss to the work of fine art. The dealer also has a fiduciary duty under the law, which is a fancy way of saying the dealer has a very high standard of duty that the dealer must abide by regarding the money received for selling the work of art.
If you are providing a written agreement when you deliver the work of fine art as described under the law above, you can certainly add a quick clause that states you are only giving the art dealer permission to sell the work of art being delivered. This is really not necessary though because the right to create reproductions of your work is a right held solely by you the copyright owner. None of those rights are transferred to the dealer when you deliver the painting.
I recently signed a publishing contract for a new book of fiction. In my contract, the royalties for “online, digital, or other electronic format” publication is slightly less than for the paperbound edition, which seems odd, since it is presumably so much cheaper to publish or sell and electronic books. Shouldn’t royalties for e-books be more, not less, generous?
Also, I get a lot of e-mail from the Author’s Guild warning about the end of the world if publishers get their way with e-books and have not had nearly enough time to follow the intricacies of the debate. In short, what’s the essence of this?
It’s an E-nigma
Regarding your first question, your thinking is not uncommon. It is a common frustration of authors and a common topic on publishing and author websites. Royalties for e-books are not likely to be more though, and here’s why. Say traditionally you receive 15% royalties for hard back books and the book sells for $30. If the book is an e-book there are lower production costs as there is no printing. But the book wouldn’t sell for $30. It would sell for maybe $15. It is easy to argue though that the royalty rate should still at least be 15%, not less.
The reason e-book royalties are so low is because they never used to matter. The technology had not caught up yet so there was no convenient way to read e-books and they were not popular. Since it was rare for anyone to really make any money on e-books, the royalty rate was ultimately unimportant. The times have changed though as e-books are becoming the more popular format. But the contracts are not changing. In December of 2009 according to Amazon, they sold more e-books then print books.
The Author’s Guild has been fighting for higher e-book royalties for a while now and is making some headway very slowly. Just last month, Random House reached an agreement with a literary agency where they agreed to pay upwards of 40% in e-book royalties for the Odyssey series.
Other issues are slowing down changes. Most publishing agreements are broken up into territories and there are different clauses for translated books and entering into contracts with publishers in other territories. But e-books are sold online, and the internet is worldwide. Where an e-book would still need to be created in different languages, one publisher could release all versions of the book rather than there being several different publishers across the globe representing the different territories. The publishing industry has not figured out how to handle that issue just yet because any change affects the publishing industry across the globe.
There is also the issue of price point for e-books. Amazon set the standard quite low but as e-books grow in popularity, so will their prices. What the market will bear and where prices will level out is still up in the air. There was a lot of buzz when Apple released its iPad with the iBookstore what price consumers would pay for e-books. Prices were so similar that the Attorney General of Connecticut started an investigation into the contracts Apple and Amazon entered into to see if they threaten to encourage coordinated pricing.
The other issue that makes the Author’s Guild leery is that the majority of the agreements authors enter into have clauses that are very broad in scope granting publishing rights for any and all electronic versions in any all media formats for the length of the contract. With technology changing so quickly and the industry changing so much as well, everyone waits with bated breath. Ultimately the jury is still out.
Jenny Milana, a partner at DangerMilana, specializes in arts, media, and entertainment law.
If you have any questions for a future Ask an Arts Attorney post, send them here.
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