Re: artwork for a winery

On Tue, 08 Jun 1999, Randi Millman-Brown <millman[_at_]ithaca.edu> wrote:
>
> I was hoping you could give me some advice - I do not subscribe to
> this list but to VRA-L, however perhaps the people here could offer
> some help!
>
> We know an artist who has been commissioned to create a painting for
> a winery. The winery is paying him a very nice fee for this work.
> The question is does the winery then have the right to reproduce the
> work on t-shirts, wine glasses, aprons, etc., without further
> compensation to the artist? I am assuming it does, however, the
> artist is demanding additional compensation and it is getting almost
> to the point of nasty
>
> How on earth does the winery figure out future compensation for the
> rights to use the image? Didn't they pay for it? Hope this makes
> sense -- the more we try to hash it out -- the more questions we get,
> not answers. Any thoughts?

A number of people have made the point that, on the facts given, the author retains the copyright. A transfer of ownership of the copyright (as opposed to the sale of the original or any copy of the work) has to be in writing, signed by the parties, and I assume that no such writing exists.

     This does not end the inquiry. As others have noted, if there was a written contract allowing use by the winery, one should consult that contract to see what uses are permitted of the copyrighted work.

     What if there are no written terms which describes the uses? For example, what if there was only a writing which said that the winery agreed to pay $X to create the painting?

     There is no easy answer to this question, and in this I think my answer differs from those of others who think that the artist necessarily wins.

     The issue is what is the scope of the permitted uses, or (to use other words) the scope of the license. I think this depends a great deal on the facts of the case, of which we have almost none. If the artist and winery spoke about the intended uses, that would be relevant. We are told of a "very nice fee." That might be relevant. If commissions of works of this kind are much lower in situations where there is only limited use, then this "very nice fee" might suggest a wider range of uses. If commissions of works of this kind are this high even for limited uses, then this suggests that this fee was only intended to allow limited uses.

     My point is not that one or the other party necessarily wins. I am simply trying to indicate that (1) the issue of scope of the license is different from the issue of ownership of the copyright and (2) the breadth of the scope of the license may well be one that only a court could answer, depending upon all the facts that would come out at a trial.

     Having said that, I concur with others who urge people to discuss the ownership of copyright and scope of license issues when they hire people to produce copyrighted works. This includes the hiring of photographers (weddings, portraits, etc.), public relations companies (doing advertising campaigns or producing press releases), authors (doing stories about people), etc.

     Regards,
          Bob Kreiss

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* Robert A. Kreiss                          Ph. 937-229-2256 
* Professor of Law and                                       
* Director, Program in Law and Technology                    
* University of Dayton School of Law                         
* Dayton, OH  454469-2772                                             
  
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