A number of visual artists have recently approached Arts Law with concerns about art commission agreements they were asked to sign. Their agreements contained a term asking them to warrant that their work did not infringe anyone's rights and to indemnify the commissioner against any claims arising out of their work.
What is a warranty? What might you be asked to warrant?
A warranty is a promise. You will generally be asked to warrant that you created the artwork, that you have not assigned or licensed your rights in it to anyone else, and that you own copyright in it. You might be asked to warrant that the work has not been previously exhibited or displayed in public. You might also be asked to warrant that the work shall not infringe the rights of any third parties nor contain any material that is unlawful or defamatory.
There is a range of ways in which your work could infringe someone's rights, and you should think very carefully before promising that it won't.
If your artwork makes fun of a public figure, satirises a commercial product or ridicules a company or organisation you could run the risk of a defamation claim. The question to ask is whether your artwork lowers the reputation of the person or organisation you have depicted. For example, Arts Law has previously advised that an artwork consisting of a number of corporate logos superimposed with the words 'organised crime' is likely to be considered defamatory. The issue is not about what meaning you intended. It is about what the ordinary viewer would understand your artwork to mean. Arts Law recommends that you seek legal advice if in any doubt.
Misleading and deceptive conduct
If your artwork contains recognisable brands, and it is possible that viewers could think that your work has the consent of, or an association with, those brands, your artwork could prompt an action for misleading and deceptive conduct or passing off. Your papier maché can of Tooheys New or your jewellery embossed with the McDonalds 'M' could potentially get you into trouble.
If you use a word or symbol that has been registered as a trade mark your work could constitute an infringement of that mark. If you were to create an artwork incorporating the word 'Eternity', which, amidst a great deal of media attention, was recently registered as a trade mark by the Sydney City Council, you might infringe the Council's trade mark in that word.
Your nude, rude or raunchy sculpture might contravene various state laws and the common law offence of obscene libel. You should also consider whether there are classification requirements for your work.
What is an indemnity clause?
An indemnity clause usually requires the artist to indemnify the commissioner against any loss or damage suffered by the commissioner as a result of a breach of any of the warranties you have given. You are being asked to take full responsibility if your work does in fact infringe someone's rights or breach a law. This means that if you give a warranty that turns out to be untrue and, as a result, the commissioner is sued, the commissioner can sue you to recover all its legal costs.
This might be something you can live with if you have chosen to create a controversial or blatantly satirical work. But, if the design brief was to produce such a work then the commissioner and not you, the artist, should take responsibility for any liability arising out of the artwork.
What should you do if you are asked to sign an agreement containing a warranty and indemnity clause?
Firstly, consider if the clause is reasonable. Read the clause carefully and determine how broad or general it is. Consider the nature of the commission. If you exercised complete control over the type of work you were creating, it may in fact be appropriate for you to take some responsibility for it.
If you do not feel the clause is reasonable or fair, try and negotiate with the commissioner to amend the contract to delete the offending warranty and indemnity paragraph, or amend the term so that the warranties you are being asked to give are more limited.
One way is by ensuring that the warranties are specific and not swept up into a general, catch-everything clause. Ask the commissioner to break the clause down into identifiable warranties instead of a general warranty that the work will not infringe any laws or be the cause of any legal action. You may be prepared to warrant that the work does not infringe any existing copyright, but not be willing to warrant that the work is not obscene. Consider each warranty separately and carefully.
Add in the words "to the artist's knowledge": "The artist warrants that the work does not contain anything which, to the artist's knowledge is defamatory".
Limit the indemnity, for example, to the total amount payable under the contract, so that there may be a ceiling on your liability if in fact you breach a warranty.
As always, have the contract reviewed by a lawyer before signing it.
Alison Davis was a Legal Officer at Arts Law.