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Contributing Artist Agreement
Please review our sample agreement below.
Sample Evolve Images Artist Agreement
Artist Agreement (“Agreement”) effective as of DATE (“Effective Date”) between Evolve Images, LLC with offices at 5750 30th Ave NE, Seattle, WA 98105 (“COMPANY”) and <your name>, located at <your location>(“Artist”). Artist and COMPANY have determined that it is in their mutual best interest to enter into this Agreement whereby Artist shall submit, and COMPANY shall distribute Accepted Images for licensing to clients worldwide upon the terms and conditions contained in this agreement.
1. DEFINITIONS
1.1 “Accepted Images” means Images submitted by Artist to COMPANY and accepted by COMPANY for licensing and promotion to end users.
1.2 “Artist” means the individual owner and copyright holder of the Accepted Images or one authorized by written agreement with owner and copyright holder to represent the Images and enter into this Agreement on behalf of copyright owner.
1.3 “Confidential Information” means information designated as confidential or proprietary by the disclosing party, or known by the receiving party to be confidential.
1.4 “Images” means all types of visual Images (stills or motion) including but not limited to photographs, color transparencies, black and white or color prints, drawings, illustrations, paintings, footage and frames from film footage, video and frames from video, digital Images, digital illustrations, composites, Images derived from digital 3D scenes created within 3D programs and all metadata including keywords, descriptions, credits and captions associated therewith.
1.5 “Net License Fees” means the gross license fees received by COMPANY after deduction of currency conversion and agent commission where applicable. License fee does not include sales tax, use tax any other taxes or duties.
1.6 “Product” means any compilations of Images to promote the business of COMPANY and its Third Party Distributors, and/or to distribute and license Accepted Images, including but not limited to printed catalogs, advertising and promotions, CD-ROMs, DVDs, Internet websites, hand held devices and other online distribution systems, whether now known or which may become known in the future.
1.7 “Similars” means an Image that is substantially similar to any Accepted Image and which may reasonably cause an industry professional viewing the image to believe it is the same or substantially the same image, or that the image conveys the same concept, use of models and enough visual themes to be licensed by an end user for the same purpose. Images shall not be considered Similars based only on their subject matter.
1.8 “Stock Picture Library” means any stock picture company, stock film library, on-line image service, royalty free or clip art provider, or any other similar entity that is in the business of licensing, distributing, providing, selling or otherwise exploiting Images anywhere in the world.
1.9 “Agent” means any distributor or marketing entity with which COMPANY enters into a marketing and sub-licensee agreement for the promotion and licensing of Accepted Images.
1.10 “Non-Exclusive Images” means any Images preassigned by the Artist as such and submitted to COMPANY under the terms defined under Section 3.2.
1.11 “Exclusive Images” means any Images preassigned by the Artist as such and submitted to COMPANY under the terms defined under Section 3.1.
2. ACCEPTANCE OF IMAGES
2.1 Acceptance. COMPANY may accept or reject any Images submitted to it in its sole and absolute discretion. COMPANY is not obligated to return rejected Images. Artist acknowledges that some Images may become out of date or not marketable for one reason or another and that COMPANY may remove such Images from its promotion and availability to clients. COMPANY reserves the right to deem any model or property release unacceptable and to remove any Accepted Image that is associated with an unacceptable release.
2.2 Ownership of Images. Accepted Images shall at all times be and remain the exclusive property of the Artist to be used by COMPANY and its Agents solely for the purposes described in this Agreement. The Accepted Images shall not be considered assets of COMPANY in the event of a voluntary or involuntary liquidation of assets..
2.3 Copyright and Crediting. Artist retains copyright of its Accepted Images. COMPANY shall, at its discretion, advise its licensees and Agents to include a credit notice as designated by Artist where appropriate and practical along with the Accepted Images. Such notice may include COMPANY’s name as the source of the Image. Artist specifically waives any moral rights with respect to the Accepted Images. Notwithstanding the foregoing, Artist acknowledges that credit may not be given and the Company name or brand may be the only credit given, if any.
3. RELATIONSHIP AND DUTIES
3.1 Grant of Rights for Exclusive Images. Subject to this Agreement, Artist grants COMPANY the license to distribute Artist’s Accepted Images throughout the world and all rights to grant sublicenses to Accepted Images, and to reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast or enhance, any Accepted Image, alone or in combination with any other material, in any media or embodiment, now known or later developed, for any purpose. COMPANY is specifically authorized to employ the services of Agents throughout the world in its licensing and marketing efforts. Artist agrees not to supply to any other Stock Picture Library, or any end user, Accepted Images or any Images that are Similar to any of Artist’s Accepted Images submitted.
3.2 Grant of Rights for Non-Exclusive Images. Subject to this Agreement, Artist grants COMPANY a non-exclusive license to distribute Artist’s Accepted Images throughout the world and all rights to grant sublicenses to Accepted Images, and to reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast or enhance, any Accepted Image, alone or in combination with any other material, in any media or embodiment, now known or later developed, for any purpose. COMPANY is specifically authorized to employ the services of Agents throughout the world in its licensing and marketing efforts.
3.3 Reserved Rights Notwithstanding the grant of rights contained in Paragraph 3, Artist retains the right to use any Accepted Image or Similars for personal, noncommercial and noneditorial purposes, such as portfolio, exhibition, single photographer publication, fine art prints, personal website and self-promotion. Artist reserves the right to endorse products and services. In the event any Accepted Images is used in any endorsement, Artist shall notify COMPANY of the use to avoid any image conflict. COMPANY shall not license any Accepted Image for fine art prints without the Artist’s prior written consent.
3.4 Trademark and Promotion License. Artist grants COMPANY and its Agents, the right, but not the obligation to use Artist’s name, trademarks and trade names and the right to reproduce, display, transmit, broadcast and adapt any Accepted Image to promote, advertise and market COMPANY, Artist and its Agents’ Products and services; and Artist agrees that no compensation or further consent is due for the use of Accepted Images in COMPANY’s or its Agents’ Products, promotion, advertising and marketing. COMPANY shall endeavor to credit the Artist where practicable. This trademark license shall automatically terminate upon the termination or expiration of this Agreement.
3.5 Licensing Terms. COMPANY shall have complete and sole discretion regarding the terms, conditions and pricing of Images licensed. COMPANY shall have complete and sole discretion as to delivery methods and distribution of the Images, including without limitation, single image download, multiple Image disc or other method.
3.6 Right to Commence Legal Action. Artist grants COMPANY the exclusive right, at its expense, to determine in its sole and reasonable discretion, without obligation, if, and when, any legal action shall be pursued with regard to the Accepted Images, and to defend claims and counterclaims related to the Accepted Images. COMPANY shall have complete discretion regarding its choice of attorney. Settlements shall not be subject to the Artist’s prior approval, however COMPANY shall not enter into any settlement that shall impair Artist’s ownership or copyright in the Accepted Images. Artist agrees to cooperate with COMPANY, providing, if requested, all reasonable assistance to COMPANY. Artist agrees to be named in and being joined in as a party to any proceeding in connection with the prosecution or defense of any legal claim. If COMPANY declines to bring a claim, Artist retains the right to bring an action in its own name, at its own expense.
4. ROYALTY PAYMENT
4.1 Commission and Statements. On a monthly basis, COMPANY shall remit to Artist:
a) sixty-five percent (65%) of Net License Fees received from the licensing of Exclusive Images from the previous reporting period for Images licensed.
b) fifty percent (50%)of Net License Fees received from the licensing of Non-Exclusive Images from the previous reporting period for Images licensed.
4.2 Royalty Statement. COMPANY shall provide Artist with a royalty statement setting forth the licensing by COMPANY of the Accepted Images during that reporting period. All payments will be made in US dollars. Any credit for foreign taxes may be claimed only by COMPANY.
4.3 Credit For Refunds. In the event that a refund of a payment received or accrued from an Agent is required, COMPANY is specifically authorized to deduct the Artist’s share of this overpayment from any subsequent amount due the Artist.
4.4 Commissions After Termination. The Artist acknowledges clients may use or reuse, or be billed for subsequent reuse of Accepted Images after Termination of the Agreement. Accordingly, Artist specifically agrees that COMPANY has the non-exclusive right to license and retain its commission for such use or re-use of any Accepted Images which might take place for a period of one year after this Agreement terminates. COMPANY will continue to report to Artist as set forth in Section 4.1.
4.6 Audit Rights. Artist has the right, once during any twelve (12) month period, at his or her expense, upon at least two weeks written notice and during regular business hours, at a location and time approved by COMPANY, to have an independent audit performed of COMPANY’s books and records solely as they pertain to the Artist’s Images within the two year period prior to the audit. Such audit shall be conducted by an individual or firm experienced in royalty audits. If COMPANY has underpaid the Artist by ten percent 10% or more, COMPANY shall reimburse the Artist for the cost of the audit. This right is subject to the auditor’s execution of COMPANY’s current non-disclosure agreement.
5. TERM AND TERMINATION
5.1 Term. This Agreement will begin on the Effective Date set forth above and shall last for an initial term of one(1) year. After this initial term, at each expiration date this Agreement will automatically be renewed for successive one (1) year terms unless and until one party notifies the other in writing of its wish to terminate this Agreement at least ninety (90) days prior to the beginning of the next term.
5.2 Continued Rights. Regardless of Termination of this Agreement, COMPANY will be entitled to continue to license any Image if it is featured in a print Product, for a period of three years from the date of first inclusion in its print Product and for a period of one year from the date of first inclusion in any electronic, online or web based Product. Termination will not affect any licenses with respect to Images granted to any licensee, such licenses will continue in full force and effect according to their terms.
5.3 Effect of Termination. Within a reasonable time after termination or expiration of this Agreement, COMPANY shall delete all digital files representing the Accepted Images. Notwithstanding, COMPANY may retain digital files of Accepted Images as part of its back-up media.
6. LIMITATION OF LIABILITY
6.1 No Liability for Irreplaceable Material. COMPANY, unless expressly agreed to for scanning and imaging purposes, does not accept original film, transparencies or any other irreplaceable materials (“Irreplaceable Materials”). In the event Irreplaceable Materials are submitted to COMPANY, COMPANY will make all reasonable efforts to protect and preserve the Irreplaceable Materials, and exercise commercially reasonable care in the handling of the Irreplaceable Materials. Notwithstanding, Artist agrees that COMPANY is not liable for any damage, loss to or failure to return Irreplaceable Materials or any Images submitted or for damage to any of Artist’s Irreplaceable Materials, whether arising from negligence, breach of contract or otherwise, except for acts of gross and willful negligence.
6.2 COMPANY’S LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL COMPANY’S LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE) FOR LOSS, DAMAGE OR MISUSE TO ANY IMAGE PROVIDED TO COMPANY EXCEED $100 PER IMAGE OR THE AGGREGATE OF $10,000, REGARDLESS OF THE NUMBER OF CLAIMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT FOR LIABILITY TO THIRD PARTIES ARISING UNDER SECTION 7 HEREOF OR ARISING FROM A BREACH OF SECTION 9 NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
7. ARTIST WARRANTIES
Artist represents and warrants that:
a. Artist has the full right and authority to execute this Agreement and perform its obligations according to its terms;
b. Artist is the sole owner or the legal representative of the owner of all Accepted Images; and has the authority to grant the license to COMPANY under Section 3 herein.
c. To the best of Artist’s knowledge, after due investigation, no Accepted Image infringes on the rights of privacy or publicity, rights of any statutory or common law copyright, trademark or other intellectual property rights, defames any third party, is pornographic or obscene, or violates any other third party right;
d. There are no sales restrictions of any kind on any Accepted Images except those submitted in writing at time of submission;
e. The caption, keywords, copyright and all other information provided to COMPANY is accurate and complete and in accordance with COMPANY’s then current submission guidelines. To the extent caption information supplied to clients by COMPANY on any Accepted Image differs from the information supplied to COMPANY by Artist, the accuracy of such information shall be COMPANY’s sole responsibility.
f. A valid release, either model/and or property has been obtained where necessary and appropriate for each Accepted Image and COMPANY may use such Accepted Images without obtaining any additional consents or permissions or the payment of additional fees to third parties. The Artist shall provide true copies of releases for each Accepted Image at the time of the delivery of the Image. Artist shall identify the released Images according to COMPANY’s then current submission guidelines.
8. COMPANY WARRANTIES
COMPANY represents and warrants that:
a. It has the full right and authority to execute and perform its obligations under this Agreement according to its terms;
b. It shall use commercially reasonable efforts to market and license Accepted Images.
c. It shall not knowingly license an Image for any pornographic, defamatory, libelous, or otherwise illegal use.
9. INDEMNIFICATION
9.1 Artist agrees to indemnify and to hold COMPANY and its officers, directors, employees and agents harmless from any claims, liabilities, losses and damages (including reasonable attorney’s fees and expenses) arising from any breach of any representation or warranty, any failure to perform any covenant or agreement under this agreement. Artist agrees that the COMPANY may retain any amounts due to Artist under this Agreement to the extent the COMPANY is owed any sum under this Section 9.1, provided, however, that the COMPANY shall consult in good faith with the Artist. Notwithstanding the foregoing, Artist will not have any liability for costs arising solely and directly from
(i) any addition to or change, omission or deletion by the COMPANY of information supplied by the Artist or
(ii) use of any Accepted Image in a manner not permitted by the terms of this Agreement, including any restrictions supplied to the COMPANY in writing by the Artist.
9.2 COMPANY shall indemnify and hold Artist and, if it has them, its officers, directors, employees and agents harmless from any claims, liabilities, losses and damages (including reasonable attorney’s fees and expenses) arising from any breach of any representation or warranty, any failure to perform any covenant or agreement under this agreement.
10. MISCELLANEOUS
10.1 Confidentiality Obligation. During the term of this Agreement and for as long after its expiration or termination as either party possesses any Confidential Information, each party agrees to not disclose any Confidential Information of the other party to any third party or use any of the Confidential Information except as necessary to perform that party's obligations under this Agreement. Confidential information includes but is not limited to information concerning marketing plans, financial results, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by the disclosing party which is not generally known to the public.
10.2 Inability to Locate Artist. COMPANY shall use reasonable efforts to locate the Artist in the event royalty statements or Images are returned unclaimed. In the event that, notwithstanding COMPANY reasonable efforts, the Artist cannot be located for four years, all unclaimed royalties and Images shall be deemed abandoned and COMPANY shall have the right to retain all royalties due and destroy unreturned Images, if any.
10.3 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ heirs, executors, administrators, successors, and permitted assigns. COMPANY may assign its rights and obligations under this Agreement upon written notice to Artist. Artist’s obligations under this agreement are personal and may be assigned only with COMPANY’s prior written consent; however, Artist’s right to receive payment may be assigned without COMPANY’s prior consent.
10.4 Relationship of the Parties. Nothing in this Agreement will constitute the relationship of an employer and employee, a principal-agent, partnership or a joint venture between COMPANY and the Artist.
10.5 Notices. Notices to be served in accordance with this Agreement may be served by email, fax, or by mail, at the election of COMPANY. However, email shall be the predominant source of communication. The email, fax and postal addresses of COMPANY are as set out in this Agreement. The email, fax and postal address of Artist for these purposes will be such as Artist may notify to COMPANY from time to time. The Artist and COMPANY agree to notify each other promptly of any change in their email or mail address for the purpose of notification pursuant of this Agreement.
10.6 Controlling Law. This Agreement shall be interpreted in accordance with the Laws of the State of Washington without regards to the laws regarding conflicts of law. The Parties hereby agree to submit to the exclusive jurisdiction to the Courts of federal or state court located in the State of Washington.
10.7 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law, or so held by applicable court decision, such enforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event such provision shall be changed and interpreted so as to best accomplish the objectives of such provision.
10.8 Waiver. No express or implied waiver by either party of any provision of this Agreement or of any breach or default of the other party shall constitute a continuing waiver, and no waiver by either party shall prevent such party from enforcing any and all other provisions of this Agreement or from acting upon the same or any subsequent breach or default of the other party.
10.9 Entire Agreement. This Agreement supersedes all prior agreements and understanding, whether written or oral, incorporates the entire understanding of the parties concerning the subject matter contained herein and may not be modified and amended except by a separate writing signed by or on behalf of both parties.
10.10 Counterparts; Fax Signatures. This Agreement may be executed by the Artist actively agreeing to the terms herein, after which this Agreement will remain in full force and effect until terminated in accordance with its terms.
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