Stop Selling Art: License It: Take a Hint from the Software Industry and License, Instead of Sell, Your Art. (Legal Lowdown: Advice)

By Kaufman, Joshua | Art Business News, March 2003 | Go to article overview

Stop Selling Art: License It: Take a Hint from the Software Industry and License, Instead of Sell, Your Art. (Legal Lowdown: Advice)


Kaufman, Joshua, Art Business News


I have a radical proposition for all artists and art publishers. Stop selling art. That's right. Stop selling art, make more money, and regain control of your artwork. This might sound like a contradiction of terms or simply lunacy. "Fine," you say, "By not selling your art, you retain control over it. But how do I make any money?"

The answer is simple. Just look at the software industry. Microsoft, the multi-billion-dollar company, has never sold a single piece of software in its history. Nor, for that matter, have you ever bought a single piece of software. All that software which is housed in your computer is owned by Microsoft or other software companies. All you have acquired is a limited right to use it, subject to terms and conditions imposed upon you by the software companies. In short, you have purchased a license to use to the software and not the software. But, you say, "That can't be right, I must own the software. I went to the store; I paid for it, I got a box; I installed it on my computer, I use it as often as I want and I don't have to return it. How is it that I don't own it?"

The short answer is that when you opened the box containing the software, you found a "License Agreement" stuffed inside, not a "Bill of Sale." Also, anytime you have downloaded software from a Web site, a License Agreement is always presented, and you generally click on a button that says "I Accept" before the download begins, thereby binding you to the terms of the license. If you ever bothered to read a license that comes with the software, you would learn that, in fact, no ownership rights are being transferred to you and that most of the license is made up of terms outlining the large number of restrictions imposed on the way in which you may use the software. The software license will often limit you so only one person at a time can use it, or it can only be used on one computer. It might also say the software can't be resold, transferred, modified, adapted or traded. There are no software rental stores, the computer equivalent to Blockbuster. Why? Because the software companies, not you, own the software. The real owners of the software can restrict you or stores and not allow anyone to rent it to others. (They also got a law passed).

It is true you didn't "sign" any contracts. Nor did you enter into any oral agreements. Nevertheless, you are bound by the terms of that software license. Courts have time and again upheld the validity of software licenses. These agreements are generally called "Shrink Wrap Licenses." They become effective when you tear the "shrink wrap" covering off the box. The other common form of software license takes effect when you click on the "I Accept" button while online. These are known as "Click Licenses."

How does all of this apply to the art world? As an artist or a publisher, let us assume you want to prevent third parties from creating unauthorized derivative works from your artworks. True, there are a number of cases which provide that unlicensed canvas transfers--making tiles, cutouts, mini-prints, etc. of original works--infringe on the rights of the copyright holders. However, there isn't a large body of law in the area, and there have been a few decisions which have even gone the other way. For example, a recent Canadian Court decision found creating canvas transfers to be legal in Canada.

By licensing, instead of selling your art, you will not be at the mercy of a judge who does not understand copyright law or the art business. Instead, when you license art, you set the terms and conditions that define the license, and you establish terms that will specifically prohibit the use of your artwork in any way except as you intend. A print is to be a print only; it is not to be made into a canvas transfer. A calendar, book or catalog are to be used as calendars, books or catalogs, not packaged as some cheap and offensive product. A license can prohibit the person who acquires the physical work from creating canvas transfers, decoupages, tiles, mini-prints and the like. …

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Stop Selling Art: License It: Take a Hint from the Software Industry and License, Instead of Sell, Your Art. (Legal Lowdown: Advice)
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