Im Selling Prints of My Art Photography Do I Need a Business Liscense

Legalities thirteen: Selling Your Work every bit Art, Part 1

Q. So far I've been strictly a commercial illustrator, merely at present I'1000 thinking virtually participating in open studios to sell my original paintings. I'm also planning to create limited editions of fine art prints of my artwork, probably as giclée prints. Some of them are illustrations that have already been published by my corporate clients, in things like their almanac reports and advertising. Is there whatever problem with my plan to resell those works at present in the fine arts market? What else should I know well-nigh the fine arts world? Are there unlike legal problems for fine fine art than for graphic art?

A. There are several things to consider when you make the transition from commercial illustration to marketing your piece of work every bit fine art. First, yous should make sure that you will not be in alienation of your prior contracts with the clients to whom y'all first sold the artwork. Y'all should know about additional legal rights and obligations that apply to sales of fine fine art. Finally, you will need different kinds of agreements to reflect the dissimilar kinds of relationships you will create, for example, with agents, galleries, dealers, and your direct sales customers. In this month's column, I volition accost your rights and obligations, and sales of your fine art to open studios customers. I'll talk about working with agents, galleries and dealers in a future column.

1. Do you have the correct to resell your illustrations
as fine art?

Whether you can resell illustrations as fine fine art at present depends upon what telescopic of rights yous gave to your original client. If you assigned all copyright to the customer, you cannot brand new copies of the artwork, including fine arts prints, without the client'due south permission. You tin still sell the original painting, because the right to own the tangible painting is dissever from the copyright. That's bully if your original work is a tangible slice of artwork similar a painting. Yet, if your original work is a digital file, y'all probably don't have the correct to make a new impress to sell. That would count as making a re-create, and it is covered by the copyright that your customer owns

If, instead of assigning copyright, your contract granted your client a license to utilize your illustration, you demand to determine the scope of those usage rights. The telescopic of a license tin be express in several different means: (1) to certain types of media (impress, online, broadcast, wearable, etc.), (three) to certain types of usage (e.thousand., in annual reports but not billboard advertising); (2) for a certain fourth dimension frame, and/or (3) for a certain geographic territory. The license can exist very wide or very narrow, depending upon how these limitations are described. For example, if the license granted exclusive rights to reproduce the illustration in all media , that would include fine arts prints, and you will need your client's permission to make your ain fine arts prints even if that'southward non what the client is doing with your work. However, if the contract recites a more than narrow limitation on usage, e.yard., for print advertising and promotions, y'all may still be able to brand your own fine arts prints. Or if the license was for a limited time frame, e.g., two years, you can brand and sell your own prints subsequently the two-year term has expired.

ii. Legal rights for fine arts

As a commercial artist, your rights in your artwork were more often than not governed by federal copyright laws and private contracts. When y'all move into the earth of fine arts, federal and California laws provide some extra protection. The following laws requite y'all future rights in your works of fine fine art even afterwards you sell the bodily artwork to someone else.

Copyright. Copyright gives you equally the artist the right to control whether and how copies are made of your artwork. For a full discussion of copyright, encounter Legalities 1.

Copyright ownership is separate from ownership of individual items of art, and it does not transfer with a sale of art.  If your purchaser wants to reproduce the painting she now owns, she will need your permission, except for some limited "off-white employ" purposes. For example, she can use a flick of the artwork in order to offer information technology for auction, or if she lends or sells your work to a gallery, museum, or auction house, those entities tin include a picture in their catalog or other publications related to selling or showing the work.

However, if your purchaser makes Christmas cards from your painting, or uses information technology on the webpage or on the cover of a brochure for her business, she will exist liable for copyright infringement unless she got your permission. Copyright tin can be assigned, just just in a writing signed past you which specifically says that you lot are transferring "all copyright." Copyright lasts for your life plus 70 years.

Moral rights. Federal and California laws give visual artists some of the rights that are similar to the "droit moral" or "moral rights" recognized for all artists in Europe. The federal law is called the Visual Artists Rights Act, which is codified equally part of the U.S. Copyright Act, 17 USC Sec. 106A. In California, it's the California Artists Rights Deed, Cal. Civil Code Sec. 987.

Under both the federal and California laws, moral rights are limited to a specific category of visual works. These are defined equally: an original painting, drawing, print, sculpture or photo (and in California, a work in glass), if it exists merely as a single copy, or under the federal statute, as a express edition of 200 or less that are signed and consecutively numbered by the artist. Creators of such works have rights of "attribution" — the right to exist named as the creator of the work, or to have your name removed from altered or damaged works, and "integrity" — the rights to prevent your work from beingness intentionally modified, distorted or damaged, and to forbid destruction of the piece of work. In that location are some exceptions, including for murals and other works that cannot be removed from structures without damage. Modifications acquired by framing or restoration are exempt unless done with gross negligence.

Under federal law, moral rights last for the life of the creative person. Under California law, they last for life plus l years. Under both statutes these rights cannot exist assigned abroad, but they can be waived. Unfortunately, it is becoming common do to include waiver of moral rights in contracts which commission works of fine art.

So, for your original paintings, you and your estate will have rights of attribution and integrity for your life plus 50 years (under the California police). For your fine arts prints, if you limit your edition to 200 or less, you lot volition have rights of attribution and integrity for your lifetime (nether the federal law).

iii. Legal obligations when you sell "fine fine art"

Business licenses and permits. It seems that almost artists sell at open up studios "under the radar", without officially registering as a business or collecting sales taxes. However, the better exercise is to get appropriate licenses if they are legally required. Whether you need a business concern license, fictitious business organization proper noun registration, sales taxation permits, etc. will depend upon the ordinances in your item city or canton. Occasional private sales of artwork may or may not qualify as an agile business organisation for which such filings are necessary. For example, in San Francisco nearly anybody engaged in selling anything should have a business license, which for sole proprietors can cost as little equally $25 per year. A adept resources for finding the specific requirements in various localities in California is the CalGold website, www.calgold.ca.gov. If you already take appropriate business concern licenses/permits for your illustration business, yous can probably conduct your open up studios sales every bit function of that same business organisation.

Implied warranties. California law implies certain warranties into every sale of goods past a merchant or retailer. Open studio sales by artists could potentially qualify equally such retail sales, although I'thou unaware of whatever cases interpreting these provisions specifically in this context.  The unsaid warranties are called "mechantability" and "fitness for a item purpose". More often than not, these mean that the goods are free from defects and fit for the ordinary purposes for which such appurtenances are usually sold. If the seller has skill and knowledge that a heir-apparent would rely on, at that place is also a warranty that the goods are fit for the buyer's particular purpose. These warranties are implied by police into every retail sale unless they are explicitly disclaimed in a written contract.

In the art world, these translate as guarantees that the artwork is authentic (e.g., if it is sold as an original work of art by a particular artist, it is not instead a reproduction, a forgery, or created by a different artist), and that, depending upon the media, it is relatively durable and will not deteriorate over fourth dimension. When you sell your ain artwork, presumably you are not misrepresenting its actuality. However, you could get into trouble over the quality or longevity of your materials. In the past at that place have been some issues with certain full-bodied water color inks and some inks used to brand giclée prints. The inks faded after a few years, thus rendering the artwork worthless or much less valuable than the buyers reasonably expected. Misapplication of varnishes or use of acidic mounting materials could as well consequence in impairment to the artwork over time.

Disclosure requirements for fine art prints. California constabulary requires art dealers to provide a "certificate of authenticity" with every fine fine art print or multiple that they sell (Cal. Ceremonious Lawmaking Sec. 1740-45.9). (This constabulary was passed in response to massive fraud in the fine arts print market, peculiarly with respect to forged Dali prints. Several other states have similar disclosure laws.) The document must provide specific details most the nature and provenance (history of title) of the impress. If a dealer fails to provide one, or provides an inaccurate certificate, the buyer is entitled to render the print for a full refund, or three times the purchase cost if the dealer's conduct was willful.

The certificate of actuality must include, for case:

• Name of the artist

• If the print was personally signed past the artist, or if not, how the signature/creative person's name was affixed, and nether whose authority

• Description of the medium or process for creating the print

• If the impress was made pursuant to a photographic process (such as giclée)

• If the print was made from a chief which produced a prior express edition, or from a chief that was itself made from a reproduction

• Twelvemonth the print was made

• Whether the impress is being offered as a limited edition, and if so, the authorized maximum number of: signed and numbered impressions, unsigned or unnumbered impressions, artist'southward, publisher's or other proofs; and the total size of the edition

Individual artists are not required to provide an official certificate, only if you sell or consign your piece of work to a dealer, the dealer will want all this information from you. Moreover, you could be liable for general misrepresentation or fraud if you intentionally misstate a fact most a impress you sell; for example, if yous marker a giclée print as one of a limited edition of 200, only in reality yous end up printing and selling 300.

Accordingly, it is important to exist accurate about the size of your print runs. If you have sold prints marked with a specific edition size, practise non reprint and sell more than that number (unless they tin can be accurately described every bit a different edition, east.one thousand., in a unlike media or size). If you intend to print and sell as many giclées equally the marketplace will bear, you should not indicate that they are part of a limited edition.  Rather, they should be called "reproductions" or just sign the prints without edition numbering.

4. Agreements for directly sales of your artwork

In my experience, most artists and their customers are unaware of the rights and obligations they each accept when an artwork is sold. Many buyers, fifty-fifty sophisticated high-terminate art collectors, think they tin make copies of paintings they buy, or that they can alter the works. I once had a client, for example, who wanted to cut up a lithograph into 4 pieces to resell equally separate works. He was surprised to learn that his plan would violate the artist's moral rights. Similarly, well-nigh artists and buyers, and fifty-fifty many professional art dealers, are unaware of the resale royalty or print disclosure laws. And many artists are not aware of the unsaid warranties that might attach to sales of their work.

Most artists give their open studios customers a simple receipt when they buy an artwork. I strongly recommend instead that yous develop a more comprehensive sales agreement. That way you lot can educate your purchasers nigh your standing rights in the artwork, and at the same fourth dimension protect yourself from potential claims that the artwork is lacking.

Hither is an case of very comprehensive sales terms that address these concerns:

Terms of Sale:

• Ownership. Artist retains title to the Artwork until Artist is paid in full.

• Reproduction. Artist reserves all rights of reproduction, including without limitation all copyrights and trade dress rights, in the Artwork. Purchaser may reproduce the Artwork only upon accelerate written permission from Artist in each example (except for incidental noncommercial reproductions such as personal photographs of physical settings where the Artwork is displayed). Artist's signature and/or copyright discover as they appear on the Artwork at the fourth dimension of auction shall not exist removed or concealed. Artist shall receive authorship credit in connexion with the Artwork or any reproductions of the Artwork.

• Maintenance. In compliance with federal and California law, Purchaser will not intentionally impairment, modify, modify, or change the Artwork in any way whatsoever. If whatever amending of whatever kind occurs later receipt by Purchaser, whether intentional or accidental and whether done by Purchaser or others, the Artwork shall no longer be represented to exist the work of the Artist without the Artist's written consent. Purchaser shall undertake reasonable efforts to ensure that the Artwork is properly maintained. Purchaser shall not destroy the Artwork or allow the Artwork to be destroyed without get-go offering to return ownership to Artist or her successor in interest.

• Repairs. Purchaser shall seek Artist's prior written approval for all repairs and restorations to the Artwork which are made during the lifetime of Artist. To the extent practical, Artist shall be given the opportunity to attain said repairs and restorations at a reasonable fee.

• California Resale Royalty. If Purchaser sells the Artwork, Purchaser shall pay to Artist a resale royalty of v percent (5%) of the amount of such auction, as required by the California Resale Royalties Human activity (Cal. Civ. Code 986).

• General. The Artwork is sold as is. ARTIST EXPLICITLY DISCLAIMS ANY WARRANTIES OF ANY KIND, EITHER Limited OR IMPLIED, INCLUDING BUT Non Limited TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A Particular PURPOSE. A waiver of alienation of any of the provisions of this Agreement shall not be construed equally a continuing waiver of other breaches of the same or other provisions hereof. This Agreement shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives. Its terms may be modified only by writing signed by both parties. This Agreement shall be construed and enforced under the laws of the U.s. and the State of California, and constitutes the entire agreement between the parties.

You may want to include other terms of auction, for instance, a provision that your purchaser will loan the work back to yous for museum or gallery shows, or to allow y'all to photograph information technology. Your understanding should also recite the title of the piece of work, dimensions, medium, purchase price, and all applicable data under the print disclosure police (in a higher place). Information technology should accept the proper name, accost, telephone and other contact information for both you and your purchaser, so you can notice each other if resale royalties are due. Each of y'all should sign it, and each of you should proceed a copy.

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You are invited to send in questions for consideration in upcoming Legalities columns. Please send your questions to legalities@owe.com.

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Legalities is a service mark of Linda Joy Kattwinkel. © 2005 Linda Joy Kattwinkel. All Rights Reserved. The data in this cavalcade is provided to help y'all become familiar with legal issues that may affect graphic artists. Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel.

See the index of previous columns for more answers to your questions.

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