The Law Gorgeous is a new column by TheArtGorgeous where columnists and art lawyers Alana Kushnir and Yayoi Shionoiri answer your art world questions. Email your art x law worries to [email protected]
I’m an artist and I’ve been approached by a well-known brand to collaborate on their upcoming collection. What can I expect to hand-over to them as part of the deal, and what can I expect to earn?
Nothing beats a good artist-collab and it seems that many, if not most, fashion houses and tech companies, agree. In the past few months alone, we’ve seen KAWS announce a collaboration with Japanese luxury fashion brand Sacai of ‘wearable art’, Yoshitomo Nara lending his neotenic illustrations to Stella McCartney’s first genderless capsule collection and French designer Camille Walala creating an epic installation with LEGO for their new dots product line. But if you take a peep behind the scenes at the kinds of deals being made, you’ll realise that corporate collaborations with artists can take many shapes and forms and may have some pitfalls.
Let’s consider the collaborative process itself, for starters. Some collaborations involve a brand applying your pre-existing artwork or designs to a product. Think of a print on a t-shirt, for example. Other collaborations involve creating a new artwork or design with input from the brand, where the result of that to-and-fro process is then applied to the product (or products). Still other collaborations involve the commercial brand taking inspiration from your artwork and creating a new product (or a redesign of their store) on their own. These scenarios involve the creation and use of intellectual property, such as copyright for example. So the questions to ask here include: who owns the intellectual property of the product or designs that resulted from the collaboration? What rights do the commercial brands have to use it? What rights do you have? Whether you are granting the brand permission, aka a ‘licence’, or the brand is engaging you as a ‘work for hire’, it is important to set the record straight – from the very beginning of the collaborative process – as to who owns what and when it can be used, so that there are no misunderstandings once the collaboration launches publicly.
The types and amounts of remuneration you may receive will also vary from one project to another. You might get paid in ‘free’ products, receive a fixed fee and/or even a royalty, where you would be paid on an ongoing basis depending on the quantity of product sold. The important point here is that the scope of the licence that you give the brand should generally be commensurate with the remuneration you receive. For example, if you are doing a lot of work to create a handbag that will be branded as a collaboration product between you and the brand, and also agreeing to do it as work for hire, you may have more leverage to ask for a larger fee up front as well as some free copies of the product for your personal use. If you are excited to be associated with the brand, it might also make sense to ensure that the brand agrees to include you in their marketing plans, whether at launch events or on their social media.
Another red flag to watch out for in your collaboration contract is an exclusivity clause, which may restrict you working with a competing company for a certain period of time and/or in a certain geographical region. For example, if you are collaborating with one fashion house, will you be restricted from collaborating with other fashion houses for years to come? When you come across an exclusivity clause, keep in mind that the enforceability of these types of clauses varies from jurisdiction to jurisdiction. In some jurisdictions an unreasonable restraint clause may be struck out as being invalid by a court of law. So, exclusivity can be an important point worth negotiating from both commercial and legal standpoints.
Navigating through these considerations is one of the many reasons why getting on board a lawyer with expertise in these kinds of projects can really help – not only do you stand to lock in a better deal where your legal rights are cared for, but it sends a great message to your corporate collaborator – I’ve done my homework so don’t mess with me!
Good luck and feel free to send us some merch once the deal is done.
This article is of a general nature only and should not be considered specific advice.
Yayoi Shionoiri is an art lawyer and the Executive Director of the Chris Burden Estate and the Nancy Rubins Studio. Find her on Instagram here and at her website here. Alana Kushnir is the Founder and Director of Guest Work Agency, an art law and advisory firm based in Australia but international in reach. She is also the Principal Investigator of the Serpentine’s Legal Lab. Find her on Instagram here and LinkedIn here.