Yes. Dealers may be classified as (i) vanity galleries, i.e., those who, for a fee, allow artists to use their premises for an exhibition, (ii) one-exhibition dealers, i.e., especially a small dealer who makes an arrangement with an artists for one exhibition, or, possibly for a single season, and (iii) the persona l representative, i.e., an established dealer who enters into a long-term relationship with the artist and seeks to advance the artist’s career through exhibitions, publicity, by bringing the artist’s work to the attention of critics and curators, seeking to place the work in important private and museum collections, and by developing a secondary market for the artist’s work.

Legend Galleries provides representation and services to Artist, Patrons, and Alliance Partners on the “Personal Representative Level.” Our interest is based on the long term, and corresponds to our intense commitment.

Agreements are typically for a one- to three -year period, generally not longer than five years, and sometimes provide options for renewal or cancellation prior to the end of the specified term. Normally all works created by the artist, with the possible exception of graphics, are included. The agreement may provide for dealer exclusivity within a defined geographical area. If the artist enters into an exclusive arrangement, the contract should ideally provide for approval by the artist of other dealers with whom the exclusive dealer may arrange exhibitions or consignments.

It is important for the contract to spell out the expenses, which are to be absorbed by the dealer and those, which are to be absorbed by the artist. Dealers frequently absorb expenses of promotion, advertising, catalogues, openings, announcements, transportation from the dealer to purchasers and insurance. Where the dealer does not pay insurance costs, the artist should consult with an insurance broker and obtain insurance to cover each consigned work during transportation, exhibition, and storage. Valuation of each work should typically be at the amount actually to be received by the artist from the sale of the work.

Some contracts provide for a specified number of exhibitions to be held during the term of the agreement. Participation by the artist in the installation of exhibitions is customary, whether or not provided in the agreement.

Dealers are compensated for their efforts on behalf of the artist by the payment of a commission on works actually sold. The contract should set forth the rate of commission to be paid, which may vary from 33.3% to 50% depending upon such factors as the status and bargaining power of the artist and the dealer and the services provided by the dealer. Commissions may vary in cases of large sculpture, on sales from the artist’s studio (where permitted), on works consigned to other dealers, on special commissions and on graphics.

The artist has the right to set the sales prices of his works, and should do so in consultation with the dealer, who will be aware of the market for the artist’s works. The contract should provide for a periodic review of prices, customarily at the end of six months or a year. The contract may also provide for advances to the artist against sales. In such event, there will also be a provision for repayment of any balance due to the dealer at some point, sometimes at the end of the contract term. In such cases, the contract may provide for repayment in works of the artist. The artist should consider whether this is more advantageous than repayment in cash. The contract should also provide for periodic accountings, not less frequent than twice each year, at which time all amounts due to the artist should be paid. The artist should, if possible, make a photographic record of all works consigned to dealers, obtain receipts for all works consigned and give receipts for all works returned. The artist is entitled to examine the dealer’s records with respect to transactions involving works consigned to the dealer. The contract ideally should also specify whether and to what extent the artist or the dealer is responsible for credit risks, and when the artist becomes entitled to payment if a sale is made on an installment basis.

The artist should consider the desirability of a provision or termination of the agreement in the event of death of the artist or dealer, or in insolvency or change of ownership of the gallery. The artist should also consider the possibility of the protection of consigned works and proceeds of sale from creditors of the dealer through the reservation of a security interest.

Note: The above information was written by Gilbert Edelson.

Legend Galleries uses the Giclee’ Process. Giclee’ (zhee -clay) is a French term, in this case meaning, “spray of ink”.

The cornerstone of this process is enhanced digital ink jet printers which have been specifically modified for the rigorous and precise criteria of fine art collectors and connoisseurs of museum quality, limited edition prints. The printers use continuous tone technology in which infinitely small pixels of color are capable of rendering an amazingly smooth and consistent image, to faithfully mirror the original oil painting, watercolor, photograph, or digital art.

The apparent resolution of the digital print is 1,800 dots per inch, which is higher than a traditional lithographic print and has a wider range of color than serigraphy. ‘Giclee´ prints render deep saturated colors and have a beautiful painterly quality that retains minute detail, subtle tints and blends.

A copyright in a work of authorship confers the right to exclude others from copying the work for the duration of the copyright. The copyright law gives the author or proprietor of the copyright various exclusive rights in their work. These rights include: reproduction, preparation of derivative works (e.g. the film, Cat on a Hot Tin Roof, which Tennessee Williams based on his play), distribution, performance and display. See 17 USC § 106.

The copyright law provides protection for works of authorship fixed in any tangible medium of expression and further enumerates what it deems as a work of authorship. Included are: literary works; musical works including lyrics; dramatic works, including a ccompanying music; pantomimes and choreographic works; pictorial graphic, and sculptural works; motion pictures and other audio -visual works; and sound recordings. See 17 USC § 102. The list provided is not exhaustive of the types of works, which may be copyrighted. For example, works of authorship have been extended to include computer software programs and databases.

Copyright protection for an original work does not extend to any “idea, procedure, process, system, and method of operation, concept, principle or discovery” (17 USC § 102(b)). This means that if the author writes a story about three bears and a blonde- headed girl, he cannot sue someone for copyright infringement if they write their own story about three bears and a blonde -headed girl unless there was actual copying. He may sue, however, if the second author copies his expression (i.e. the words and images nearly verbatim) of the story. Another example would be if an artist painted a particular landscape. A second artist would not be infringin g on the first artist’s rights if he painted the same landscape. He would be susceptible, however, if he copied the first artist’s actual painting.

Virtually anyone who creates a work, which is fixed, in a tangible medium is eligible to obtain Copyright. Problems arise, however, when the individual is creating work as part of his or her regular employment. The Copyright Law refers to such works as works for hire. Under the law, the author of a work for hire is considered to be the employer unless the employer and employee have made an agreement to the contrary. (17 USC § 201(b)) The work for hire doctrine is complex and fact dependent. Generally, a work is not a work for hire unless the employment is regular or there is a written contract. Most “freelance” arrangements do not give rise to works for hire.

Generally, all modes of protection involve the protection of property rights to information.

Copyright: Affords protection for expressions of authorship in literary, artistic, musical and other works.

Patent: Affords protection for inventions and certain designs. There are two types of patents:

• Utility Patent: covers functionality such as: new processes, machine, manufacture, composition of matter etc.
• Design Patent: covers the ornamental nature of a useful object apart from its functionality.

Trademark: Identifies the source of goods via a name, brand, or symbol. Such is used by a business in order to distinguish its goods from others. Examples of trademarks include: the Quaker from Quaker Oats products, Oldsmobile, Sentra, NutraSweet, the sweetener used in Equal (itself a trademark) and other products.

Service mark: Protects a name, which identifies a service provided. Examples of service marks are Citibank, ARA and The Philadelphia Phillies.

This question is asked frequently. Some believe that protection begins only when the individual has registered his copyright in the Copyright Office in Washington. The truth is that copyright protection begins as soon as the work is fixed in a tangible medium of expression.

The Copyright Law grants the copyright owner the exclusive rights in a particular work. Those rights include reproduction, distribution, performance etc. (as noted above and also found under 17 USC § 106 ) if another party should violate any of these rights without the Copyright owner’s consent, this could be considered a copyright infringement. The Copyright owner may then seek to enforce his rights against the infringer through financial settlement or ultimately, through the Federal Courts.

Prior to the inception of the Berne Convention (an international agreement of which the US has agreed to be bound), which became effective March 1, 1989, notice was required to b e affixed on all publicly distributed copies of the work. In general, notice consists of affixing the name of the copyright owner, the date of first publication of the work and th e symbol ©, copr. or copyright.

Works created after March 1, 1989 are not required to provide notice to publicly distributed copies. However, it is strongly advised that the author/artist continue the practice of affixing notice to the work. This would place others on notice that the individual claims exclusive rights in the work and additionally provides leverage for the Copyright owner should he bring an infringement suit.

For works that have been created after January 1, 1978 (when the 1976 Copyright Act became effective), the term is life of the author plus 70 years. 17 USC § 302(a). If the author shares a joint copyright with another author, the term is life of the last surviving author plus 70 years. (17 USC § 302(b)). For works for hire, the term is 95 years from the date of first publication or 120 years from the date of creation whichever expires first. (17 USC § 302(c)). The Old Act of 1909 governs Works, which have been created prior to January 1, 1978. To determine the appropriate duration of a work created prior to January 1, 1978, it is advised that the individual consult someone experienced in copyright law or call the Copyright Office in Washington, D.C at (202) 707-3000.

The general rule concerning registration is that the auth or does not need registration in order to be protected by the Federal Copyright Law. However, registration is strongly suggested. It not only puts others on notice that the author claims a right in his work, it also preserves the right of the author/artist to recover statutory damages and attorney’s fees in an infringement suit. (17 USC § 412). Furthermore, registration is required prior to bringing an infringement suit.

The law is quite liberal concerning registration requirements. An author/artist may register at any time during the subsistence of the copyright. It is strongly suggested that registration be completed shortly after the work is fixed. This will afford ultimate protection to the owner of the work and preserve their rights in the recovery of certain damages as noted above and preclude the opposing party from claiming that he didn’t know that someone owned rights in the particular work. (17 USC § 408 and 412).

Generally, the artist/author must deposit one or two copies of the work in the Copyright Office with an application fee of $30. To determine how many copies must be sent, the artist/author should consult with an expert on Copyright or the Copyright Office. Further requir ements are listed within the Copyright statute 17 USC § 408.

Generally, there are two deposit requirements, which are necessary for obtaining copyright. First, there is a deposit requirement for registration of the copyright. Practically speaking, this deposit requirement provides a means of identification of the wo rk as being created by the author. Second, there is a deposit requirement in the Library of Congress in Washington, D.C. for purposes of building up the collection. These deposit requirements are related and both may be satisfied by making a single deposit through the registration process.

The first thing you do is procure the appropriate registration forms from the Copyright Office. There are five types of forms that the majority of individuals use:

Application Form VA: This form would be used if the work intended for registration were “pictorial, graphic, applied art, photographs, prints and art reproduction, maps globes, charts, technical drawings, diagrams and models”.

Application Form TX: This form would be used if the work intend ed for registration were “published or unpublished non-dramatic literary works, excluding periodicals or serial issues.” For example: textbooks, poetry, directories, and computer programs.

Application Form SE: This form would be used if the work intended for registration were an “individual issue of a serial.” A serial is a work that is intended to be issued in successive parts indefinitely.

Application Form PA: This form would be used if the work intended for registration were a “published or unpublished work of performing arts.” Included in this category would be works that would be performed for an audience either directly or indirectly. For example: musical works with accompanying lyrics, dramatic works with accompanying music, pantomimes and choreographic works an motion pictures or other audiovisual works.

Application Form SR: This form would be used if the work intended for registration were a “published or unpublished sound recording.” Types of sound recordings include works that result from the fixation of a series of musical, spoken or other sounds, i.e. compact discs or cassette tapes etc.

Note: Further information concerning the appropriate forms to be used may be sought by calling the Copyright Office in Washington, D.C. (202) 707-3000. Additionally, if you know which forms you need, there is a forms hotline open 24 hours a day, 7 days a week at (202) 707 -9100

With each registration form there is a $30 non- refundable fee required.

Further information may be sought by visiting the Copyright Office web site at http://lcweb.loc.gov/copyright or by calling the Copyright Office directly at (202) 707 -3000. A good publication available through the Copyright Office is called “Copyright Basics.” The Copyright Office will send you a copy of this circular free of charge upon request. The Copyright office has also written over 93 other pamphlets, which further explain Copyright Law.

Another fine publication, which is available through PVLA, is, “Artist’s Guide to Copyright, Patent and Trade Secret Law,” by John W. Caldwell. Mr. Caldwell is a Philadelphia attorney who has expertise in the areas of copyright, patent and trade secret law. This publication is easy to read and v ery informative.

PVLA has other publications, which examine Copyright Law. If you want information concerning these publications, please call (215) 545-3385 between the hours of 9-5 Mon.-Fri. or check out the copyright office web site.

Philadelphia Volunteer Lawyers for the Arts
251 South 18th Street
Philadelphia, PA 19103
Phone: (215) 545-3385 | Fax: (215) 545-4839
© 1991, 2013 Philadelphia Volunteer Lawyers for the Arts

An Artist works are protected internationally via the “Bern Convention.” The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human spirit. These works – intellectual property – are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as cr eating real wealth for nations.

With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 23 international treaties dealing with different aspects of intellectual property protection. The Organization counts 179 nations as member states.