Artist Transfer Rights and Sales Agreements ?

[Transplant]

Ahhh. RAP

[Mighty Hal]

Artemaria, I appreciate your willingness to consider this at length and share your thoughts. Very cool. Still, I think you might be a bit too generous in your feelings toward BWS and his agreement.

 

Yes, Windsor-Smith makes his living as an artist but it's a stretch to suggest that his living is dependent upon the sale of his original art. I'm guessing that the majority of his income comes from a publisher's checkbook or royalties of published work. When we buy a BWS original piece, he keeps all other rights. Because of this, he gets to have his cake and eat it, too: He gets to sell his original artwork -- and he's never sold his stuff for cheap -- and still collect the royalties for the work he did.

 

This is fair enough.

 

But it dinks me at the thought that Windsor-Smith sold his original artwork (at a price he liked at the time) and now he wants 15% of any potential profit in the future...from me and from anybody else that pulls out a checkbook. This isn't a fine arts situation (sorry, Shiverbones); few people in the world of fine arts will ever see a publisher's check or collect future royalties from their work.

 

This is not a "Neal Adams" situation, either. Adams was fighting a work-for-hire mentality and an industry that had little disregard for an artist's efforts. That's not the situation with BWS and there's nothing noble in what he's doing. It's a money-grab.

[NelsonAI]

 

When I started this thread I expected it to be a 50/50 split primarily because BWS is a top tier artist. If it were a lesser talent (fill in the blank), I think there would be a lot less people defending the agreement. I respect everyone's opinions nonetheless.

 

With that said, aside from royalties, artists also supplement their income with autographed prints, sketchbooks, remarked versions of comics and trade paperbacks,etc.

 

Limited edition giclee's like the ones done by Alex Ross and originally sold by WB should be enough to earn some royalties. Even in the fine arts, artists will sell lithographs.

 

Do Marvel and DC try to get a percentage of your profits if you sell your back issue comics?

 

Just my opinion.

Cheers!

N

 

[Artemaria]

Artemaria, I appreciate your willingness to consider this at length and share your thoughts. Very cool. Still, I think you might be a bit too generous in your feelings toward BWS and his agreement.

 

Yes, Windsor-Smith makes his living as an artist but it's a stretch to suggest that his living is dependent upon the sale of his original art. I'm guessing that the majority of his income comes from a publisher's checkbook or royalties of published work. When we buy a BWS original piece, he keeps all other rights. Because of this, he gets to have his cake and eat it, too: He gets to sell his original artwork -- and he's never sold his stuff for cheap -- and still collect the royalties for the work he did.

 

This is fair enough.

 

But it dinks me at the thought that Windsor-Smith sold his original artwork (at a price he liked at the time) and now he wants 15% of any potential profit in the future...from me and from anybody else that pulls out a checkbook. This isn't a fine arts situation (sorry, Shiverbones); few people in the world of fine arts will ever see a publisher's check or collect future royalties from their work.

 

This is not a "Neal Adams" situation, either. Adams was fighting a work-for-hire mentality and an industry that had little disregard for an artist's efforts. That's not the situation with BWS and there's nothing noble in what he's doing. It's a money-grab.

 

Hal -

 

You do have me pegged! !

 

I feel that I lean towards the sympathetic when it comes to the artists. Whenever possible, I do try to purchase art directly from the artists in some symbolic show of support.

 

However, please do not misunderstand my thoughts. I'm not saying that BWS and his family are eating oatmeal for 3 meals a day unless he sells his original comic art, but only pointing out that he makes his living by selling his art. Whether it is OA to you, or a story to Marvel, or a cover to Penguin, or something else. He is an artist. Artists make their living by creating and selling their art.

 

I was just contrasting BWS to dealers/flippers who make alot of money by re-selling the OA created by others. Some of the dealers/flippers have day jobs, other incomes, etc. These people don't depend on the sale of art for a living, they just use the hobby as a means of making extra spending cash, etc.

 

As a person who makes a living as an artist, BWS is dependent on whatever revenues he can generate from the sale of his art, from whatever source. The Agreement is an apparent attempt to increase that revenue flow.

 

Hal, you also make a great point when it comes to Neal Adams' efforts as contrasted with BWS's Agreement. My point was not to make a direct comparison between the two, because there is no basis for such a comparison. Instead, my point was to note that BWS's Agreement may be one person's intial efforts (admittedly arising out of a strong self interest) to change the landscape.

 

Adams changed the landscape on behalf of others and asked for nothiing for himself (well, at least not directly, but the potential was there for him to benefit ultimately -- although I don't believe that was Adams' focus at the time). So, the purpose of bringing up that comparison was to note that the end effect of both may be to help artists financially.

 

Other than avoiding buying BWS art from BWS directly, there is another way of avoiding the entaglements of the Agreement. Someone could just tell BWS that they don't want to sign the Agreement. If times are tough (and it looks like they are or soon will be), then BWS may make an exception to his own rule if he needs to make the sale badly enough.

 

Best regards.

 

- A

 

 

 

[Guest]

I think I'll have to pass on "agreements" when there are artists out there that will not only sell you their work with no extra clauses but sometimes the right to publish their work.

On another note, has anyone tried to commission Neal Adams for a custom piece? You could pay upwards of 20K and he gets to keep the artwork. You can use the image though.

[Artemaria]

I think I'll have to pass on "agreements" when there are artists out there that will not only sell you their work with no extra clauses but sometimes the right to publish their work.

On another note, has anyone tried to commission Neal Adams for a custom piece? You could pay upwards of 20K and he gets to keep the artwork. You can use the image though.

 

Now that -- paying for artwork that you don't even get to keep -- is something to which I could not agree. It's a pity, because Adams may be my all time favorite artist.

 

But is this for comic OA? advertisements? or other work?

 

- A

[buyatari]

Speculating a bit here, but it must be really painful to BWS to work for days on a piece, sell it for $5K

 

 

Ouch that is painful. How does he live?

 

He sold the art twice! The rights to the image and now the art itself. If collectors support this there will be more of it and it will get worse with each pass.

 

At this rate in years to come artists will only sell you a 10 year lease!

 

[Artemaria]

Speculating a bit here, but it must be really painful to BWS to work for days on a piece, sell it for $5K

 

 

Ouch that is painful. How does he live?

 

He sold the art twice! The rights to the image and now the art itself. If collectors support this there will be more of it and it will get worse with each pass.

 

At this rate in years to come artists will only sell you a 10 year lease!

 

He may have sold the art twice, only if it were sold to a publisher. Unpublished commissions and speciality pieces generally involve only one sale.

 

If it comes to 10 year leases, I will be out of this hobby. !

 

Best.

 

- A

[buyatari]

Speculating a bit here, but it must be really painful to BWS to work for days on a piece, sell it for $5K

 

 

Ouch that is painful. How does he live?

 

He sold the art twice! The rights to the image and now the art itself. If collectors support this there will be more of it and it will get worse with each pass.

 

At this rate in years to come artists will only sell you a 10 year lease!

 

He may have sold the art twice, only if it were sold to a publisher. Unpublished commissions and speciality pieces generally involve only one sale.

 

If it comes to 10 year leases, I will be out of this hobby. !

 

Best.

 

- A

 

He still retains the rights to the image. If its a commission and he put any time into it chances are it will end up published somewhere. If he doesn't do anything with that image thats on him. Some artists sell the image more than once. If he wants to make some money off the original art more than once he should do recreations.

[Mac Man]

I wouldn't have any problem with an artist retaining rights to a sketch-image for purposes of reproduction. It's essentially buying OA in reverse, if I understand this correctly? The only difference would be the art gets published AFTER I've purchased the original. In a way, that seems like a good thing since it would (in theory) increase the value of the original since the image would become more well known? The only problem I would have is the artist retaining any sort of rights to the original image I purchased (i.e. wanting to retrieve it for a period of time for various reasons). I don't have a desire to reproduce any art, but I certainly don't want someone feeling a right to take something I've purchased.

 

And a question for those of you experienced in this realm of collecting: is this sort of agreement an isolated incident with BWS or are there others out there doing similar things with their art sales? Just trying to learn more about this! Thanks!

[artcollector9]

I own many pieces of art by BWS under the agreement...I feel no anxiety in doing so.

 

The financial cost is minimal--15% ONLY of the profit of the sale...e.g., you buy at $5K, you sell at $10K, you owe 15% of 5K which would be $750 to the artist...lots of folks don't really think this out and presume they have to pay 15% of the gross sale.

 

The few times I sold a piece of art by BWS, buyers were not dissuaded from buying when they find out about the TAR agreement...as they had no intention of re-selling the art work.

 

It is a unique arrangement in the comic art field, but then again so is the art of BWS.

 

 

 

[comix4fun]

I own many pieces of art by BWS under the agreement...I feel no anxiety in doing so.

 

The financial cost is minimal--15% ONLY of the profit of the sale...e.g., you buy at $5K, you sell at $10K, you owe 15% of 5K which would be $750 to the artist...lots of folks don't really think this out and presume they have to pay 15% of the gross sale.

 

The few times I sold a piece of art by BWS, buyers were not dissuaded from buying when they find out about the TAR agreement...as they had no intention of re-selling the art work.

 

It is a unique arrangement in the comic art field, but then again so is the art of BWS.

 

 

 

 

I remember reading the agreement once.....but I can't remember.

 

I know he takes 15% of the profit.....but will he reimburse 15% if there is a loss?

 

C

[artcollector9]

No, of course not. But that doesn't usually happen. Quality art, when held for several years, bearly always increases in value. BWS' art certainly has.

[Shootydog]

I see nothing wrong with an artist wishing to continue to make money off of his work. Writers do it. People in advertising make money off their copyrighted designs. Its like the art is in syndication and hes continuing to make money off of it even while others are as well. Not sure if my analogy is completely accurate but you get the point.

 

If his rates too high people may balk but if he can continue to make a dime off the work than more power to him. Who wouldnt?

[comix4fun]

No, of course not. But that doesn't usually happen. Quality art, when held for several years, bearly always increases in value. BWS' art certainly has.

 

 

 

That is certainly true of his sequential and comic related art.

 

However, the prices he charges for his fine art pieces are far higher than his comic and line art prices. I don't know if there is any sort of guarantee that those pieces will escalate continuously. Looking at the roller coaster of fine art sales at recent auctions it's not a bet I would be willing to take.

 

C

[comix4fun]

I see nothing wrong with an artist wishing to continue to make money off of his work. Writers do it. People in advertising make money off their copyrighted designs. Its like the art is in syndication and hes continuing to make money off of it even while others are as well. Not sure if my analogy is completely accurate but you get the point.

 

If his rates too high people may balk but if he can continue to make a dime off the work than more power to him. Who wouldnt?

 

 

 

I say if he can get people to agree to this type of agreement then God bless him. But this type of agreement is very differerent than the types of continuing compensation you refer to.

 

Writers, and ad men, and artists continue to make money off of their creations because they have retained the rights of republication and resale of the image created, not off of the paper it's typed or drawn upon.

 

A comic artist draws a cover, he has a copyright on the image, every time that piece is published he makes a fee. The piece of paper that he drew it on is property which he sells for value it is distinct from the copyright he holds on the creation.

 

To draw the analogy a different way. Would the creator of a custom car who sells the car or auctions it off be within his rights to demand a cut of the profits everytime the car sells in the future? How about a custom home builder that creates a house...how far would a contract that runs with the land forever get him?

 

I don't fault BWS for trying to do something like this. It probably makes it easier to let a piece go knowing that he won't financially regret it. I don't know how these TAR's are enforceable and make it around lack of privity and certain terms, being that it seeks to contract with uncertain parties, for an uncertain amount of money, at an uncertain time in the future. It only violates every major tenet of contract law.

 

I am certain several folks who purchase the art 3rd or 4th hand don't have a lot of fear of the enforcability of the contract but respect the artist and the art enough to comply.

 

Best,

C

 

 

[Pirate]

I say don't sell your art until you find a price you're comfortable with. I can see charging to reproduce or something like that, but wanting to continually get paid each time it changes hands privately is a bit much.

[comicartcom]

Folks.. In teh coin business (which I am not involved in) the company that slabs coins has every dealer sign a contract that they will give a % to the slabber. This goes for all dealers who get slabs.

 

When you don't pay their % they stop slabbing for you

 

In teh previously mentioned California statute the artist gets perpetual rights

 

It's a ***spoony*** (my own spoon - haha) way to do business.. But if you buy & sign.. it's like any other contract

[NelsonAI]

Most individuals do realize that it's 15% of the profit not gross sales price. For those that are not in favor of the agreement, it's a matter of principle rather than the dollar value itself. His artistic talent is not in question.

 

As far as coin graders or comic graders for that matter, it's a one time fee at the time of slabbing. It's not a perpetual fee everytime the coin or comic is resold.

 

BWS receives royalties on poster sales, reprints, lithographs, etc. This agreement is more of a I can't decide what to charge for my art but I want to squeeze every last dollar I can.

 

I do respect the opinions of other even if they differ from mine.

 

The debate does present a new issue ......

 

Artists such as David Willarson and Tom Everhardt license Disney and Peanuts characters respectively so they can sell paintings featuring those characters.

 

I believe publishers such as Marvel and DC allow artists to to sell convention sketches of their trademarked characters because it is a 1 time sale for personal use of the buyer.

 

Some of the art BWS sells are characters he does not own (i.e., Conan) so does this mean the owners of the trademarked character are also entitled to a piece of the action if BWS continues to profit from the art beyond a one time fee?

 

Does the Artist Transfer Rights and Sales Agreement pose any conflict when the artist does not own the the trademarked character?

 

Cheers!

N

 

 

[delekkerste]

The Case of the $80 Royalty Check: a Mystery for Patty Milich, Art Sleuth

 

In California, Artists Get a Cut When Works Are Resold, but the Money Is Hard to

 

By SARAH MCBRIDE

 

SACRAMENTO, Calif. -- Patty Milich, a state employee, spent five months trying to give $80 to painter Rick Stitch.

 

An unassuming arts administrator, Ms. Milich leads a double life as California's official art sleuth. The job tracking down abstract expressionists is an unintended consequence of a little-known 1977 law designed to cut artists in on the profits from the resale of their works.

 

When a work of art is resold in the state, or by a California resident, the seller must set aside 5% of the gross selling price to pay the artist. The law applies to any resale of $1,000 or more within 20 years of an artist's death, so long as the sale isn't between dealers.

 

In theory, the law is a boon for artists. In practice, it means Ms. Milich sometimes must spend months trying to deliver paltry sums to people who have faded into obscurity, moved abroad or simply don't want to be bothered.

 

"I feel strongly about it," says the 57-year-old Ms. Milich from her office at the California Arts Council, overlooking Sacramento's City Hall. "Artists need to be rewarded for their hard work."

 

Some to whom she has funneled royalty payments include big names like conceptual artist John Baldessari. Others, including the estate of Jerry Garcia of the Grateful Dead, are due cash but haven't responded.

 

The payments can run into the tens of thousands of dollars but usually are more modest, about $300 to $400, Ms. Milich says. Galleries and dealers who can't find the artists are supposed to send the cash to the Arts Council, which holds it in escrow while it tries to locate them. About $250,000 has come to the state agency to pass on to artists.

 

Millions more due artists may have leaked out of the system. Many buyers and sellers don't know about the law; others simply ignore it. Some sellers deliberately pick locations outside California to sell their works in order to avoid paying the royalty, arts lawyers say.

 

Many artists whose names Ms. Milich receives are tracked down after a quick database search. About one-third of the cases require work that can go on for months.

 

Mr. Milich began working on the Stitch case in September, when auction house Bonhams & Butterfields sent a check for works it had sold in a June auction, including the artist's 1988 triptych "Swimming in the Light."

 

"Swimming" sold for $1,600. A Google search turned up a 2004 article in the Goleta Valley Voice about an artist that she thought was her man. The article indicated he lived in the Santa Barbara area and taught at a local college.

 

But those promising clues led nowhere. White-pages searches in the area turned up no trace of Mr. Stitch. He no longer seemed to be teaching at the school, which didn't respond to an email asking how to reach him.

 

Ms. Milich, an amateur genealogist who has tracked down far-flung relatives of her own in places such as Croatia, is accustomed to dead ends. She first took on the art-sleuthing job about five years ago, though most of her time is spent running public-awareness efforts around the state for the California Arts Council.

 

Currently, she is looking for valid addresses or phone numbers for about six artists. She also keeps files on more than 30 others she has located, but who she says haven't responded to her calls and letters.

 

Famously Hard to Find

 

That group includes the estates of Mr. Garcia and of Robert De Niro Sr., the abstract expressionist painter and father of actor Robert De Niro. The elder Mr. De Niro's work, "Bust of Girl With Yellow Dress," sold in 1997 for $2,750; two drawings by Mr. Garcia sold in 2007 for a total of $16,250.

 

Prominent people, Ms. Milich says, are hard to get through to. It's harder still when they are dead.

 

The paperwork needed to collect royalties mushrooms from a one-page form to a project that might require wills, drivers' licenses and, sometimes, lists of heirs. It's just not worth it, in some cases. For Mr. Garcia, the payoff for his estate would be $812.50; in Mr. De Niro's case, $137.50. When one living artist was told he was owed $90, he told Ms. Milich, "Call me when you've got some more money."

 

One New Mexico artist told her he was living on Social Security payments and was delighted to get a sum totaling less than $200, she recalls. From a deskside filing cabinet, she pulled out an email from two Oakland sisters, heirs to Berkeley painter Louis Siegriest. After she tracked them down last year, the sisters received more than $15,000 in royalty payments from sales of three of his works. "We have never been so impressed with a government agency," they wrote.

 

One quiet Friday in late January, Ms. Milich returned to some of her cold cases. "Sometimes, you have to let it rest and then go back a couple of months later," she said.

 

Sometimes that pays off, as it did when she got back to the file on Mr. Stitch, the Santa Barbara artist who specializes in abstract and representative paintings of water and waves. Her hopes for finding him weren't high. The article she had read mentioned that he lived in a teepee and extracted pigments from soil. "He seems to be living an alternative lifestyle," she said, leafing through her papers.

 

Still, she typed his name into a search engine and studied the list of results. On the Santa Barbara Visual Arts Association Web site, she noticed that her man had had a show last year at a Santa Barbara gallery she hadn't contacted. She fired off an email to the gallery, asking for help.

 

One Letter Off

 

The same day, the gallery, Edward Cella Art & Architecture, emailed her the artist's phone number and address. But a detail jumped out. Mr. Cella spelled his name "Stich," not Stitch as she had been told by Bonhams & Butterfields, the auction house.

 

A quick search for Rick Stich yielded a torrent of results, leading her to conclude that the correct spelling would have led her to Mr. Stich months earlier. "It's my fault in a certain sense," she said, before typing up a letter to the artist, including the form he would need to fill out in order to get his $80.

 

A few days later, a Mr. Stich, reached by phone, said he had received the form and was filling it out. "I don't think the amount is as important as the artist getting compensated, just like artists in the music business are compensated for the sales of their songs," he said. No matter the size of the check, he said, he's glad to have it. "If you found $80 on the ground, would you pick it up?" he asked. "I would."