Tips for drafting contracts - visual arts

The granting of usage rights is based on types of use. If one wants to use a copyrighted work, one must sign an agreement with the author. While a verbal agreement is sufficient, one should conclude a written contract to ensure better verifiability. This applies especially in case of larger productions/projects. This contract should contain detailed descriptions of the individual types of use, i.e. for which economically independent form of use one would like to utilize the work (see also the annotated licence agreement).  

It is possible to grant usage rights with spatial or temporary limitations, as well as limitations with regards to content.  

(Since 2008), the author also has had the option to grant usage rights for yet unknown types of use. He/She has the right of withdrawal, for example, to renegotiate a new type of use – and to achieve higher compensation.
There is the so-called “purpose-of-transfer” rule, which adheres to the following rule of thumb: If the parties did not explicitly discuss a type of use, i.e. mentioned in the contract, the courts assume that this use was not subject to the contract and that no rights were granted for this form of use.

 

There are various types of contracts in the field of visual arts

Sales contract (§ 44 Abs. 1 UrhG): in case of doubt, no granting of usage rights; the owner is entitled to exhibit the work in public; the same applies to ordered artworks; 

The art publishing agreement for the distribution of copies: i.e. transfer of the reproduction and distribution right is required; the variety of possible forms of reproduction – from postcards to bronze casting – must be noted;

In addition to civil obligations, gallery contracts include the obligation to transfer to the gallery owner the distribution and the (already weak) right of exhibition;

Loan contracts with museums do not lead to a payment obligation in favor of the author and limit the rights of the author also in the light of the extended rights regarding catalog illustrations (s. also the annotated loan contract). 

 

 

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