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When it comes to safeguarding your artistic endeavors, understanding the contractual factors is crucial.
In this blog, we delve into four key aspects that can significantly impact the protection of performers and their art. We explore the:
validity and importance of verbal contracts
advantages of having written agreements
significance of consignment agreements
power of performers' rights license agreements.
Join us as we navigate through these essential elements to help you safeguard your creative work.
Verbal/Oral Contracts are valid Contracts
A simple definition of a contract provides that it is an agreement entered into by two or more parties with the intention of creating (destroy or honour) legal obligations.
A general misconception about contracts is that they are simply documents drawn up by lawyers that have to be signed by the contracting parties. However, this is not the case in modern South African law. Contracts are largely informal and do not follow strict rules in terms of the form they need to comply with. Writing especially is not a requirement, unless this is expressly provided in specific legislation for instance.
As a result of the freedom to contract, contracting parties can agree to anything possible and lawful.
It is therefore important for artists to understand what they agree to when dealing with third parties interested in their art. There are four requirements for a valid and binding contract:
a meeting of the minds of the parties;
a certain form where prescribed by the legislation;
definite terms of the contract; and
legal
Once those requirements are met, whether a party has signed a contract or not, parties are bound and there are legal consequences that flow from going against the contractual terms.
Advantages of a written contract
Written contracts can be a great tool for artists to avoid disputes and provide proof of what they agreed to. A written contract will enable artists to know the extent to which they are protected, and the extent to which their art can be used by a third party. They can provide artists with what they are liable for, to who, the extent of the liability, and whether there are any omissions they are liable for.
These contracts provide greater protection than the legislation put in place to regulate the art market. One such type of contract is a consignment agreement. These contracts can be entered into by artists, with art dealers, art galleries, and art fairs to govern the relationship between the parties.
Consignment Agreements
The contracts can set out:
Exclusivity – Whether the third party has limited or exclusive use of the art
Duration – How long the art may be loaned out to the third party
Interest – Whose interest the third party works to advantage
Pricing – How the art will be priced, and what percentage of commission the third party receives
Costs – If practical costs are included in the commission or whether there are separate costs the artist is liable for. E.g.: Frames, packaging, etc.
Marketing – How the third party is going to promote the art, the extent to which the artist will be liable, and whether their input will be considered
Termination – The manner in which termination of the contract will take place, notice periods, termination fees, and consequences of premature termination
Performers’ rights license agreement
Another type of contract is an exclusive performer’s rights license agreement, which is compiled by experts and published by LexisNexis. This contract gives effect to the Performers Protection Act 11 of 1967. It provides the performer exclusive possession or control over specific uses of their performance. The performer in this agreement can allow a third party use of their performance by granting the third parties’ licenses in respect of the use of their performance. The performer in this instance transfers a personal claim to the third party and not their right.
All contracts entered into are limited by section 13 of the Performers’ Protection Act. The Act provides that any performer may enter into any contract with any user or prospective user of his performance in respect of the use of his performance, but such contract shall be enforceable only in the Republic. The Act protects only literary, musical, dramatic, and dramatic-musical works, meaning live or unscripted works are not protected.
The contract would specifically provide certain acts to the third party:
Broadcasting or Communicating performance to the public.
Making a recording – sound recording, film recording, tape recording, or some other medium by which images can be reproduced.
Making a reproduction of a recording.
The contract between the performer and the licensee is for the licensee to realise commercial benefits from the performance. The exclusive performer’s rights license agreement can be a tool for the performer to protect themselves against extensive exploitation by the third party.
The contract provides the names of the performer and the exclusive licensee. Here are 13 additional points which can be included. To assist artists when considering what to add when they are negotiating with a third party.
Granting certain rights of use to the licensee, to a certain extent and period.
Exclusivity: The performer may agree that they will not allow any other parties to exercise the rights granted to the licensee without the consent of the licensee.
Remuneration: How the licensee is set to pay the performer royalties, with a description of the amounts.
Cancellation: The period of the time the agreement is meant to endure and the notice period should a party want to cancel. The treatment of a breach of contract by one party and the cancellation that may result from it.
Termination of the license: What the licensee will do with the reproductions of the performance after the license terminates. Whether the destruction of the reproduction realises any remuneration for the performer.
Warranty: Whether the performer provides a warranty of the agreed-upon exclusivity. If the performer provides this warranty they will be held liable by the licensee if the performance is used by another and may constitute a breach. Such a breach would have legal consequences for the performer.
Cession of rights of action: whether the performer gives up or undertakes to give rights of action to the licensee if the licensee’s rights to the performance are violated by a third party.
Assistance: Whether the performer shall provide all relevant information, material, co-operation, or assistance to the licensee who seeks to enforce their rights to performance against a third party.
Sublicenses: Whether the performer shall be entitled to grant sublicenses to third parties during the period of the licensee’s license.
Personal use: The license is for the licensee’s personal use and cannot be transferred to another party.
Reservation: The performer retains all rights not subject to the license to themself.
Ancillary rights: Whether rights of the use of the name, likeness, endorsement and personal appearances of the performer during the license period, are conferred to the licensee. The reasonable amount of time for the licensee to request these and who is responsible for the costs involved.
Licensee’s obligation: The extent to which the licensee is obliged to promote the performer, the performances, and the sale of the recordings of the performances.
These agreements are not contracts that are set in stone. Therefore, parties do not need to add them all in order to be bound by the contract. These agreements, however, provide artists with a framework of factors to consider for the protection of their art.
Artists need to be aware of which rights they are providing third parties with, in respect of their art. The majority of third parties negotiate and deal with artists with greater access to knowledge and legal advice, which many artists may not be able to afford. These are but a few factors that may provide artists with a chance to level the playing field. This will hopefully help better protect artists, the rights to their art and help avoid exploitation.
Conclusion
To conclude, ensuring performer protection through well-crafted contracts is paramount for safeguarding artistic endeavors. While verbal contracts hold validity, the advantages of having written agreements cannot be overstated. Consignment agreements and performers' rights license agreements further bolster the protection of artists and their creative work. By considering these contractual factors, performers can navigate the intricate landscape of the art world with confidence, knowing that their rights are secured. Remember, protecting your art begins with understanding and implementing the necessary contractual measures.
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