Making art pay: Using a copyright license agreement for artwork

If you're an artist, you've probably experienced the challenges of making a living from your art. Licensing your art is one way to avoid becoming the cliched starving artist and earn money from your work.

Copyright vs. license

Copyright is a legal right that's granted to the creator of an original work. If you've created a work of art, copyright gives you the exclusive right to handle that work in whatever way you see fit, including reproducing, distributing, and selling the work. If you want to give a third party full rights to the work, you must assign your copyright to them.

A copyright license, on the other hand, always gives more limited rights than the actual copyright. The licensing agreement spells out those limited rights.

The copyright license agreement

As an artist, you can give someone exclusive rights to your work, which means they are the only ones who can use your work as described in the license agreement. Note that although it's always a good idea to record any agreement, all exclusive copyright licenses are required to be in writing.

In a copyright license agreement, the person to whom you are granting rights is known as the licensee. A properly drafted agreement sets out the details of the licensing arrangement between the copyright owner and the licensee, including the compensation or payment the licensee must pay.

What you are licensing

As the copyright owner, you have a number of rights over the use of your artwork. For example, you might enter into an arrangement in which you give a clothing manufacturer the right to use your artwork on their apparel. In return, the manufacturer pays you either a licensing fee or a percentage of the profits.

In addition to setting out the rights being transferred to the licensee, the copyright licensing agreement should also define any limitations or restrictions the owner wants on those rights. These restrictions might include any or all of the following:

• Duration of the license. The agreement can limit the time period during which the licensee is permitted to use the artwork.
• Geographic limitations. The agreement can restrict the licensee to using the artwork only within a certain geographical area or range.
• Purpose. The agreement can limit the purposes for which the artwork can be used. In the case of the clothing manufacturer above, for example, the owner can limit the licensee to using the artwork on T-shirts only.
• Media. The agreement can place restrictions on the media on which the licensee is permitted to use the artwork. For example, you could stipulate that a licensee is only permitted to use your artwork digitally and not in any print format.

Implied copyright license

In some cases where no written copyright license agreement exists, you may find yourself subject to an implied license. This only happens if an argument over whether a copyright license was provided ends up before the courts.

Because any exclusive copyright license must be in writing, the courts will not find an implied license in any case where the licensee is claiming a license to exclusive rights. However, in cases concerning nonexclusive licensing rights, courts may find that an implied license exists. Usually when a court makes such a finding, it does so on the basis of the custom or practice of the industry relevant to the conflict.

For example, a movie production company commissions Jane to create a painting to be used in a film adaptation of The Portrait of Dorian Gray. However, due to a mistake on the part of the company's lawyers, in addition to not giving the production company copyright over the painting, they have also neglected to include a copyright license in the agreement. If Jane takes the issue to court and argues that the movie company does not have the right to use the painting in the film, the court could find that an implied copyright license exists, because at the time the agreement was originally made, both parties intended that the painting would be used in the movie.

Copyright licenses are a common and often profitable way for artists to generate income from their work. A properly drafted copyright license agreement is a good tool to help make sure your artwork is used only in ways you approve of.