Art Purchasing: Have you actually read the “Standard Contracts” proposed by the Images Banks that you use?

When you want to illustrate your website or a promotional campaign, or associate one of your products with a photograph or painting (still covered by copyright), you must approach the rights owners in order obtain the required permissions (this is referred to as "Art Purchasing").

When you want to illustrate your website or a promotional campaign, or associate one of your products with a photograph or painting (still covered by copyright), you must approach the rights owners in order obtain the required permissions (this is referred to as “Art Purchasing”).

As this is usually a complex matter, more often than not you will decide to search for these illustrations in an “Image Bank”.

With the assistance of these companies you can undeniably maximize the time spent on research, control associated costs and above all, secure your legal relationship with the rights owner(s).

Yes, but it is still necessary to read the standard contracts (often long and/or confusing, mainly due to inaccurate or incorrect translations), that are published on-line, non-negotiable and easy to “mechanically” approve in one “click”.

To illustrate …

Your creative teams (strongly encouraged to select illustrations only from Image Banks preselected for their reliability), as part of their creative process have to:

  • Select a photograph taken in a 70’s photoshoot, reproducing, among others, the image of a well-known personality;
  • Develop and obtain in-house approval of prototypes based on this photo;
  • Contact the Legal Department in order for them to conclude the corresponding licence.

Several exchanges with the Image Bank, in order to complete an online questionnaire aimed at identifying your needs, (such as: the identity of your brand, typologies and number of products, materials, a list of countries to be exploited and the envisaged duration of the agreement), will enable the supplier to determine the amount of the corresponding licence fee. 

Once the agreement of the scope of the licence and pricing conditions has been ratified, you naturally agreed, in one “click”, to the general terms and conditions proposed on the Image Bank website and settled the licence fee online. 

Access to the HD (High Definition) files having been “opened”, you start to manufacture the products covered by the licence (in the thousands) and market them in your brands’ numerous shops, implanted throughout Europe, with a large marketing campaign surrounding the launch.

Then, six months after the launch, you receive an injunction to cease all commercialisation and marketing of these products (media supports included), on the grounds that the well-known personality represented in the photo has not given their consent to such usage (this stance will not change in the future!).

Outraged, convinced that you are within your rights you immediately contact the Image Bank to resolve this misunderstanding as quickly and directly as possible.

To your surprise, the Image Bank declines any and all responsibility, reminding you that even though you accepted the contractual conditions, the caption of the “contentious” photograph included information pertaining to the granted rights – including “those of the photographer” – and that other rights might need to be negotiated, separately by you, in order to exploit said photo – including, notably, the “image rights of the well-known personality”.

Unable to take action against the “reliable” Image Bank, you begin wondering about the next steps to take in this matter, do you…:

  • Decline, through a stance of none response, the demands of the plaintiff represented in the photo?

OK, although this would give you time (thus the possibility to sell more products); it would inevitably involve a long, costly legal battle that is a ‘lost cause’ in advance…

  • Agree to all the requirements of the plaintiff represented in the photo?

OK, but it would entail, on the one hand, a substantial financial loss (destruction of products, net loss of CA, significant transactional compensation (…)) and on the other hand, damage the image of your brand…

Negotiate, taking into account both the main objective of the plaintiff (i.e. obtain a comfortable transactional compensation without the further commercialisation that was originally anticipated) and your own interests, by limiting, as much as possible, the related financial losses.

CONCLUSION

This is not an isolated case.

Even if these cases are often negotiated, they are a source of frustration and a waste of time and money, when they could easily be avoided by taking the appropriate precautions.

We therefore encourage you to carefully analyse the standard contracts offered by your suppliers before committing to anything.

We remain at your entire disposal to assist you with your Art purchases, decrypt the contractual clauses proposed and accompany you in your negotiations with the rights owners and/or beneficiaries, whether they are photographers, designers and/or celebrities.

We remain at your entire disposal to assist you with your Art purchases, decrypt the contractual clauses proposed and accompany you in your negotiations with the rights owners and/or beneficiaries, whether they are photographers, designers and/or celebrities.

Published by

Katia Pouilly

Responsable du Service Contrats
Valorisation & Data