Blog
IP

Maybe you’ve considered letting an artist create an artwork on your facade. Such an artwork draws attention, is an ideal conversation starter and shows that you are a dynamic undertaking. Unfortunately, there is also a lot that can go wrong when you fail to make proper commitments. So what should you be looking out for when getting in bed with a street artist? 

© Pol Cosmo 2021 – all rights reserved

If you want to know more about this beautiful insect, check out our blog “IFORI is infected with an inscect!

Commitments on paper

An artist is an author and authors are well protected under Belgian law. Any commitment should be made on paper. If you don’t, you will have a hard time proving the artist’s commitments if discussions arise. What’s more, you can only prove agreements on the exploitation of the artwork in writing, such as the use thereof to promote your company. If you engage an artist, a written agreement is essential.

Can you even place an artwork?

The building itself may be copyright protected. In this case, you will need to get the architect’s permission to put an artwork on your facade. If you neglect to ask his permission, the architect may take action against you. As a consequence you could be sentenced to pay damages and even to remove the artwork. In the latter case, you might also get into trouble with the artist of the artwork. So don’t forget to contact your architect beforehand.

Also keep in mind that your building might be immovable heritage. If so, you can’t just apply an artwork to it. In this case, you’ll have to obtain permission from the Agency Immovable Heritage in Flanders. When such permission is required, it is best to informally consult with the Agency first before submitting your application file.

So what’s going on your wall?

You could give an artist free reigns, but it is advisable to provide in the agreement that you first have to approve any designs the artist makes before he starts on the final artwork. You could also provide to be a part of the creation process. Your input can range from choosing the subject and placing to actively giving input. By default the artist will be independent in the execution of the agreement and must only follow general guidelines. If you want to give more input, such has to be specifically stipulated in the agreement.

You can’t just take pictures…

An artwork will in most cases be copyright protected. This means that you need the artist’s permission to use pictures of the artwork, especially when using them to promote your business, which includes putting pictures of the artwork on your company’s LinkedIn, Facebook, Instagram or other social media.

You should include in the agreement what your business can and cannot do to avoid having to ask permission every single time. When it comes to contracting about copyright, it is required that you are specific enough when describing the uses. Adding a non-exhaustive list of possible uses such as brochures, your website, social media etc. will ensure no discussions regarding the license scope can arise.

That said, certain uses can fall under a legal exception. Taking a picture of the artwork for personal purposes, such as to show your family and friends is permitted. Publication of the picture on personal social media pages may however already be problematic. Pictures that do not focus on the artwork itself may also be permitted if the artwork is in a public place, such as a picture of your team in front of your building. Again it is best to avoid any discussion by executing a license grant permitting you to take pictures in general.

How long can the artwork stay?

Street art is by definition a perishable art. Exposed to the elements, the artwork is most likely not going to last, nor is it meant to. When the artwork has deteriorated, it may be best to remove it all together. The artist may have a specific purpose in mind, perhaps the deterioration is part of the artwork. Removing an artwork may be contested by the artist as a result. To avoid discussions, the agreement should deal with the end of life of the artwork.

We recommend agreeing on a period within which the artwork needs to remain and providing you the right to remove the artwork afterwards. The parties can also provide that the artist will regularly perform maintenance work on the artwork. You should also address what should happen in case the artwork deteriorates faster or gets damaged. Generally the options will be restoration or removal. The artist may want to include in the agreement that he has the sole right to restore or retouch the work, so you may also want to address what happens when the artist is unavailable.

An expression of personality

The artist has the right to have his name or chosen pseudonym mentioned on the artwork and any reproduction (such as a photograph) thereof. He may also opt to stay anonymous. When and what name to use should also be addressed in the agreement.

Any changes to the artwork need to be OK’d by the artist as well. Be mindful that placing the artwork in a different context or removing a part of an artwork qualify as changes. Placing promotional banners above, under or over the artwork could for instance be opposed by the artist. Of course this could also be dealt with beforehand through the agreement. When the building is a place of business, it is for instance important to agree that reasonable promotion for the company may be displayed alongside the artwork.

An original work

When you contract an artist to create an artwork, you expect it to be an original creation of the artist. There always exists the possibility that third parties find that the artwork was a copy of theirs. By displaying it on your facade, you would be violating their copyright.

As a general rule when executing an agreement with a contractor, you should let the contractor guarantee that he owns all the rights to the deliverables. Moreover, the contractor should defend and hold you harmless in case it turns out he doesn’t. It should be mentioned though that in case you neglect to include a hold-harmless clause in your agreement, you could still sue the contractor for damages, but only after having been convicted yourself. By including a hold-harmless clause you can skip this step and let the artist deal with intellectual property rights claims right away.

Conclusion

Having an artwork on your facade is by all means a great way to differentiate yourself as a company and to attract the attention of passers-by, but you should keep in mind that at heart the agreement with the artist will be a services contract. You should also keep in mind that the artist is an author and that the artwork will be copyright protected. This will trigger specific rules that require your care before contracting.

Having an artwork on your wall will as a rule grant the owner of the building the ownership over the physical art piece. However, none of the intellectual property rights to the artwork will be transferred with it. Should you not execute an agreement on the matter, you will only have the right to have it on your wall and that’s it. If you want to do more – and you probably do – a proper (written) contract is indispensable.

If you have any questions or want to know more about copyright contracts or the protection of artworks, do not hesitate to contact us!

Also don’t forget to check out IFORI’s latest book “Praktische leidraad voor de handel in kunst en antiek in België” available now through Story Publishers!

8 March 2021
Categorie