Album cover and use of painting

Copyright matters affecting music and musicians.
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Bluehorizon
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Album cover and use of painting

Post by Bluehorizon » Wed Mar 18, 2015 6:54 pm

Hello everybody,

I am new to the forum so I hope I have posted this in the right place. I have been approached by a band musician who wishes to buy a painting of mine, if I am willing to allow them to use it on the album cover. I am thinking that I should be asking for a credit on the album, but should I be asking for a licensing agreement or fee as well as selling the painting to him.
I appreciate any advice as this seems a bit of a minefield, as I am more than happy to sell the painting

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AndyJ
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Post by AndyJ » Wed Mar 18, 2015 9:15 pm

Hi Blue,
I would strongly advise that you to draw up a written agreement for the use of your painting. As a minimum I think you should insist on a credit as the artist, and you can decide either to charge a one-off fee based on the projected album sales, or specify that you want royalties based on the number of units sold. I further suggest that you retain the copyright and only issue a licence for the band to use the painting on the cover. They are likely to insist on this being an exclusive licence (meaning that only the band can exploit the use of the painting during the term of the licence). The actual usage should be defined: for instance the duration, the territory (probably worldwide) and any additional defined use such as promotion of the album, posters for live appearances etc.
I suspect that there will need to be negotiations over the fee and some other details so ideally you should deal directly with the band's manager or record company. Normally the album cover would form part of the record company's responsibilities as they, and not the band members, will own the rights in the recording. However if this band have some other arrangement in place and you do in fact need to deal with them, you need to ensure that the contract (ie the agreement you come to with them) is still enforceable in the event of the band either breaking up or undergoing major changes to their lineup.
Really this needs some professional advice from a good solicitor with music business experience, but as that could be quite costly, a good alternative might be to use a 'boilerplate' contract such as this one. If you decide to assign the copyright (ie permanently transfer ownership of the copyright to the other party) then you should charge a higher one-off fee and the royalty model is likely to be inappropriate. You can use this sort of contract for an assignment.
By way of a salutary lesson, here is a case about a photographer whose work was used on an Elvis Costello album, for which insufficient thought went into the initial agreement: Christopher Gabrin v Universal Music Operations Ltd [2003] EWHC 1335
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Bluehorizon
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Post by Bluehorizon » Fri Mar 20, 2015 10:16 am

Hello Andy,

Thank you for your thoughtful and in depth reply. It looks like I have to tread carefully and do some thinking.

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