When (and If) Artists Should Waive Their Rights

The law in Missouri is quite clear: If an art dealer sells an artist's work, the dealer must pay the artist what is owed and not use the money for any other purpose...except, however, if the artist says it's OK to do so. The exception is known as waiving one's rights, and it is explicitly stated or implicit (not forbidden) in the artist-dealer consignment laws in the 30 states (Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Washington and Wisconsin) and District of Columbia that have enacted them. "An artist," according to Missouri's 1984 law, "may lawfully waive the provisions...if such waiver is clear, conspicuous and in writing, and signed by the artist who is the consignor."

The ability to waive one's rights is not uncommon in the law, and waivers are written into numerous municipal, state and federal statutes, as well as private agreements. (Almost every ski resort, for instance, requires skiers to sign a document that concludes: "I have read and understood this release prior to signing it, and I am aware that by signing it I am waiving certain legal rights which I or my children or my or their heirs, next of kin, executors, administrators, assigns and representatives may have against" the resort operators.) It might seem counterproductive for legislators to pass a law that corrects a problem, only to include a clause that allows the law to be circumvented, if both sides agree. However, practical considerations enter in: In some cases, allowing such a clause may have been the only way that enough legislators could be brought to support the statute. Allowing certain provisions in a law to be waived may also provide greater flexibility as the two parties to an agreement negotiate.

The 1990 federal "moral rights" statute, called the Visual Artists Rights Act, which aims to prevent the destruction or alteration of artwork without the consent of the artist, allows artists to waive those rights; in the case of public art commissions, waiving those rights is often a precondition for signing a contract with a commissioning agent. Economic pressure, therefore, is a principal reason for artists signing away the rights that others have worked hard to give them, the result of an unequal balance of power.

Recognizing the imbalance of what is right and what is powerful, some state laws contain a clause specifically prohibiting the signing away of rights. Illinois' 1985 Consignment of Art Act gives voice to the concern for artists in standard legal parlance: "Any portion of an agreement which waives any provision of this Act is void." Still, the seemingly iron-clad law provides dealers with an out: The amount due an artist after the sale of artwork "shall be paid to the artist within 30 days of receipt by the art dealer unless the parties expressly agree otherwise in writing." Other states with no-waiving clauses also appear to make allowances for what had previously been outlawed if both sides provide a written amen. "A consignor may not waive his rights under this act unless the waiver is clear, conspicuous and in writing," New Jersey's 1987 Artworks Consignment Act declares.

There are times when artists themselves look for others to sign away their rights. When artists hire someone to photograph their artwork, the photographer technically owns the copyright to the pictures taken, as well as the negatives. Regardless of how much advice and direction an artist provided in setting up the shoot, even paying for the photographer's time and materials, and despite the fact that the photographer could not have taken the pictures without the permission of the artist, all the artist has purchased is a print (or slide) for personal use. The artist continues to own the copyright to the underlying artwork but could not make duplicates of the photograph or distribute them without the permission of the photographer, and the photographer could require the artist to license the image or set additional charges based on the use of the image.

The likelihood of artists and fine art photographers finding themselves locked in a legal contest is slim, but it would be eliminated completely if both sides signed an agreement that stipulates all of the uses the artist plans to make of the image (such as, posters or prints, postcards or brochures and t-shirts) in exchange for a negotiated payment. The artist might also seek the photographer to sign away ownership of the copyright, in order that unspecified uses of the photographic image could take place without needing to renegotiate.

A similar situation arises when an artist works with a print studio or a sculpture foundry to create an edition. The studio or the foundry technically owns the copyright to the edition; even though the prints or sculptures are based wholly on an artist's copyrighted image or model, the technical know-how of the people involved in their creation has been seen by the courts as adding an element of originality, establishing a separate area of copyright ownership. As copyright owners of what is called a "derivative work," the studio or foundry enjoys the traditional right to reproduce, display and sell the works. However, as a point of law, the derivative work cannot be completely separated from the underlying art, requiring the printer to obtain permission from the artist to fully utilize the privileges of copyright: The studio or foundry gains a right it cannot exercise. Still, the ownership of that copyright matters. If the copyright of the derivative work were infringed and the print studio or sculpture foundry did not pursue a legal action, the image could slip into the public domain, greatly damaging the artist's economic interests. The artist would be reliant on the studio or foundry to pursue a case where it did not have its own financial interests. James Silverberg, an attorney with the Washington, D.C. law firm, the Intellectual Property Group, stated that the matter is clarified and simplified when the artist is the sole copyright owner for both the copies and the underlying artwork. He noted that the written agreement between the artist and studio or foundry should include a statement, such as, "The artist shall own all rights, title and interest into the copyright subsisting in the work produced for the artist by the printer."