Production Company. The production company wants to be able to use a work of art in its motion picture.
Grantor. The person or company that owns the rights to the artwork. It could be the artist, the artist’s estate, or any party to whom the artist has assigned the copyright to the art. If the artist is well-known, the production company will probably not be able to get the right to reproduce and sell the art itself, apart from its depiction in the motion picture.
REPRESENTATIONS AND WARRANTIES:
AUTHORIZED PERSON
In addition to the usual representations and warranties, the grantor, in this case the copyright holder, must represent and warrant that he or she is either the legal owner of the copyright to the artwork or someone with the power to authorize licenses of the work (such as an attorney for the legal department of a corporation which owns the work).
TITLE AND DESCRIPTION OF FILM
Provide the title of the film, but make sure it is described as “tentatively titled.”
DESCRIPTION OF THE ARTWORK
The artwork itself must be described. Be careful here. There are often several versions of a piece of art. The production company will only have permission to use those versions specifically listed in the Artwork License Agreement.
GRANT OF RIGHTS
This section lays out the grant of rights from the grantor to the producer. The grantor must license the following rights to the production company.
Medium. The right to use the artwork in the motion picture, in whatever forms that motion picture takes (i.e., film, video, DVD, streaming, etc.). This is usually phrased as “in any and all media, whether now known or hereafter devised.”
The right to make copies of the film containing the artwork.
The right to exploit and distribute that film any way the producer sees fit.
The right to use the artwork in advertising promotional materials.
All rights should be of perpetual duration and irrevocable.
The rights are usually nonexclusive, meaning that other production companies can license the same artwork for their films. If the producer requires the rights to be exclusive, the licensing fee will be much greater.
COMPENSATION
A licensing fee should be negotiated, and some amount, even if it’s only a few dollars, should be paid. Nonexclusive licenses are cheaper than exclusive licenses.
The producer should try to negotiate the license fee as a one-time flat fee, with no residuals or other contingent payments to be paid.
CREDIT AND COPYRIGHT
The manner in which the copyright owner and artist is credited should be specified. The production company often retains the right not to credit the artwork owner at all. In addition to credit, the production company may be obligated to place the owner’s copyright notice and information in the credits.
As with all credit provisions, the producer should contract for as much discretion as possible in creating the look of the credits, and any other matter with respect to the credits for which the copyright owner has not been given approval rights.
As is true for all credit provisions, the production company should insert a clause in the contract that says that “inadvertent failure to accord the contracting party credit shall not be actionable.” This clause should also require the injured party to waive the right to injunctive relief, leaving an obligation on the production company’s part to correct the problem on all future prints as the only remedy for the production company’s credit mistakes. The clause should further state that a -mistake of this nature is not a breach of the Artwork License Agreement.
