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Advanced Licensing for Visual Artistsby Selina Fenech
It's a sorry state of things when there are very few artists out there who could say they've never been disappointed (or much worse!) with a licensing deal they have had. Licensing has it's ups and downs, and needs to be treated as an entire, separate entity in your career. It needs special attention to build yourself a portfolio of contracts that you are both proud of and that brings you wonderful, spendable, cash!
So, assuming you've got one or two contracts under your belt (that may or may not be going well), how do you move forward? Below I'm going to look at a few advanced tips for licensing for visual artists, from building a better relationship with companies to dealing with contracts gone wrong.
Before you sign...
Let's have a think about contracts for a moment. So many artists (and I know, I've done it way too many times myself!) get so excited by the prospect of a licensing deal, they will sign away so many of their rights without hesitation -- rights that are important, and easier than you may think to keep!
When a company sends you their contract, generally it is a blanket everything-the-company-wants-ever contract, with all the terms being most general and best for the company, but really not so good for the artist! It is so important to remember that you can negotiate! In most business dealings this is EXPECTED. And most of the time, the terms that as an artist we need to negotiate will not hurt the company or jeopardize their sales at all, and they are generally happy to allow.
Here are a few of my pet peeves in contracts, why they are BAD for artists, and how you should change them.
Exclusivity -- Of course exclusivity is a pain for artists. One company gets to do your work on that product, and that's it, no one else. This is one of the terms which in most cases the artist just has to live with, because it is definitely in the companies' interest for their sales and promotion not to have your artwork also available through their competition. So let's look at a few other terms which help out the artist by freeing up exclusivity of the product in other ways:
Must produce or forfeit -- This is definitely one of my pet peeves because it is a term that is rarely seen in contracts, but I believe it should ALWAYS be there. It's simply as it says: a company should have to be producing the product they are signed for, or the contract is forfeited and made null, allowing you to move on to a company that WILL produce your work. Generally this term is guided by a number of time periods; e.g., a product must be in production within X months of the contract being signed and a product must not be out of production for X months or the contract can be terminated. This is important not only for the artworks/products initially signed for, but any new additional artworks that are added in or agreed to by the methods above. If a company has you signed for artworks, products or regions they are not selling too, they are simply keeping you from your potential income.
Must see samples of the product -- This is both important, and one of the most FUN parts of licensing! Of course everyone loves free goodies, even more so when we are seeing our artworks brought to life in different products. But let's look at the serious business reasons why you should receive free samples from your licensee:
Ok, we've signed our contract and the terms are good. We can just put it away and forget about it now, right? Oh no, no, no. Licensing agreements are a relationship, and you can't turn your back on them. For one thing, you want to make sure the company continues to meet their obligations, and two, you want to build a relationship with them to help increase sales of your product range, so you can both get paid!
Building a relationship with your Licensee
This may go without saying, but it's a great idea to try and build a close, friendly relationship with your licensing company. Always be professional in your dealings with them, but also be personable and nice, so that they ENJOY dealing with you, and want to do it more! It's nice to be able to be friends with your licensee, but remember that this comes second to business and should NEVER be an excuse for unprofessional behavior on either side. Don't let them weasel out of important contract obligations because they are your friend.
Some ways to continue to build your relationship and be a good licensor:
What to do when things go bad
It's nice to have contracts that allow you to end the agreement at any time (with written notice for a certain length of time is usual!). But this is rare. Normally contracts can only be legally ended if the company is in breach of the terms, or bankrupt.
So what are your options when you're no longer happy with a contract?
The honeymoon is over, and you're just not happy. Nothing is particularly wrong, you want to stay with them, but maybe sales are low, or it's just not progressing as expected.
The best thing to do in these situations is communicate with the company and discuss your concerns in the most non-inflammatory way possible. It is so important that the company understands that you want to stay with them and work with them to reach an arrangement that will benefit you both. Make suggestions on new art you may have, or give them sales figures that they can use to select better-selling artwork. Try and get in touch with some customers and see what they think of your licensed products and what you can do to get them to buy more. The company themselves will often have other suggestions they might like to discuss with you, or they might suggest that you're better off ending the contract and looking elsewhere. Sometimes artist/licensee relationships just don't work.
How to terminate a bad contract and what to do if a company breaches your contract
This is the part that it would be nice to never have to deal with: terminating a contract before its time. Sometimes you're just not happy and want out. Unless your contract allows you to give written notice of termination at any time, you will have to try to come to an agreement with the company and hope they will be alright with it. If you're in this situation, again it is incredibly important to use only the most non-inflammatory language and reasons for leaving. This is all for protecting yourself legally. Whether the company is in the right legally or not, you always have to be careful about what you say, make sure you have facts to back yourself up (their performance history on your checklists for example that can be backed up with further records). The rule is, almost everyone will avoid taking things to legal action if they can, but you don't want to be the person that pushes them to it.
If the company is in breach of contract, has been late with royalties (either once or consistently), or otherwise is not meeting their obligations, go back to your contract and thoroughly read every bit of fine print. Most contracts will have a term about how to deal with contract breaches. You may find that the company is not even technically in breach until YOU point out to them, in writing, that they are. Often it will be a case of giving written notice, after which the company will have a certain length of time to fix the problems, or allow the contract to be terminated. Even if you want to stay with the company, it is worth giving them a friendly reminder on the terms if they slip up, and keep records of EVERY bit of correspondence in regards to the contract, because they may be useful for if you do want to end the agreement. Keeping records is extremely important, even if things never get into the full blown legal system, it can be helpful just to show the company you've got the records and documents to back up your claims, and you don't embarrass yourself by claiming something you later find out you are mistaken on.
Since first venturing into licensing I've seen contracts and deals with companies in many forms. Some turned dodgy and needed to be put down. Some have knocked me off my feet with their professionalism and payouts! Some artists see licensing as a goose with golden eggs, a way to get paid for no work. But I believe the most rewarding licensing agreements are mutual relationships built with hard work and benefits for both parties involved. Like much of life you need to make some mistakes to learn from them, but hopefully this article will ease the damage from any mistakes and lead you into a great licensing career!
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