SURTEX Attendees: Legal Tips for Art Licensing Deals

If it’s May in New York, it’s time for SURTEX. If you are an artist who licenses your art, you should be planning a trip to New York for the self-proclaimed “marketplace for original art and design.” The SURTEX show can be daunting for newcomers due to its size and scope. While your focus now may be primarily on creating art and figuring out how to transport it to New York,  here are some last minute legal tips as you enter the art licensing arena.

1. Protect your intellectual property and register your artwork. Your artwork is your livelihood. It’s worth the expense to file to register your copyrights before you display at SURTEX. You can certainly file the art as a collection to save some money. If you missed this crucial step before the show, do it as soon as you return home. Filings must be done within three (3) months of first publication to obtain all the statutory benefits of copyright registration. Also don’t forget to consider trademark protection for your business name and slogans and collection names. (For a more complete discussion of how artists can build their licensing business with intellectual property protection, click here.)
2. Check your insurance. The Javits Center is a wonderful venue, but even in the best location, problems can occur. A few years ago, torrential rains plagued New York City during SURTEX, and a leak at the Center destroyed the art at a few unlucky booths. Do you have business interruption insurance? Even more importantly, do you have back-ups of your art stored digitally?
3. Consider your policy on photography at your booth. You’ve worked hard to set up your SURTEX booth and display your art to its best advantage. Have you considered what might happen if someone photographs your art and posts to Instagram? Suddenly, you may have lost control of your most valuable assets and their copyrights. While it is impossible to prevent all surreptitious photography, you can post a “No Photography” sign at your booth. You also can and should politely ask obvious photographers to stop. At the same time, consider which art you give away as samples. Consider how you want to display your signature collection–onboard or on iPad or folder. Also try to have visitors and samplers sign a log so you have a record of who had access to your art.
4. Audit your existing licenses. If you have already licensed your art, spend a few hours considering your existing licenses. What has worked for you? What has not? Were the term, territory, and categories of license adequately defined? Have you been paid on time? Did you have any trouble confirming the veracity of royalty payments? Were there quality problems?  Did the licensee demand too many revisions? Did the existence of one licensing deal prevent you from entering into another more profitable deal? Conducting an internal audit will allow you to show at SURTEX with more clear goals.
5. Be fully conversant with legal concepts. Even if you have never entered into an art licensing deal before or are an expert, review the essential legal terms of an art licensing deal.  These include category definitions, territory, term, exclusivity, compensation tools such as guarantees and advances, and warranties and indemnities. Even though you will not be negotiating your deals at SURTEX, it is a good idea to keep these concepts in mind when having preliminary conversations with possible licensees. Knowing your end game will strengthen your negotiation skill.
6. Be flexible.  Artists hope that their portfolios will speak for themselves, but often, licensees will see the art in your booth as only a sample. They will want to know that you can produce art in your admirable style that they believe will sell. Your flexibility is a key contributor to whether licensees want to do business with you. At the same time, you want to be sure that you are not so flexible that you are not adequately compensated. Your contract can help with these factors, but you should be considering this issue from the moment you meet at SURTEX.
7. Consider quality control. While it’s exciting when a representative approaches your booth and has interest in your artwork, you should ask questions too. The SURTEX show may be your only opportunity to meet face-to-face. Use your conversation to assess the licensee, its reputation, its honesty, its fairness, and its quality. In particular, ask questions about quality control over the manufacturing process. Having your art associated with a sweatshop death trap or a factory that produces products with toxic dyes will not help your business grow. Then when it comes time to enter a contract, make sure to include strong quality control provisions and consult with a licensing attorney.
8. Leave your booth. It’s difficult, especially if you’ve travelled to SURTEX alone, to leave your booth. At the same time, it’s important to take a little time to walk the show. You need to assess the trends in the marketplace. In addition, to understand fully the broad meaning of “Surface Textiles,” you need to see what the category means in today’s three-dimensional and technology driven world. You may see applications for your artwork that you had not considered. For instance, a hot trend in branding is the “fluid trademark.” These trademarks change and take on different forms, usually with the assistance of artwork that you might provide. (Think “Google” and its daily reincarnation with the help of great artists.) Is there a trend that requires artists’ collaboration that you had not considered? You will not know if you stay rooted to your booth.

Have fun at SURTEX! For more information on art licensing’s legal issues, click here.