Copyright - Practical and Financial Issues

Should you "register" your copyright?  In the previous post, the ease and low cost of applying to the U.S. Copyright Office were highlighted, but a bit of effort and expense is required.  So let's get real, When is it worth it?

  Copycat Won't Scratch © 2010
  Recycled tin cans, sterling silver,
  Artist: Harriete Estel Berman

If you intend to sue a copycat in court, a "registered copyright" provides a strong legal foundation. 

The least of my concerns is the time to prepare documentation for the application which diverts you away from your studio.  The application fee is reasonable.    

Of much greater concern is whether you have a strong case and the financial resources to hire lawyers and bring your case to court.  This is a really critical issue.

It costs a lot of money to bring complaints into the court system. Even if you have an "open and shut" case, what is the cost of pursuing the legal action versus the financial award you might recover?

If you can not prove the financial damage of the infringement, what is the point?  For example, if someone copied a necklace or painting worth $2,000, then the "damages" that you can claim are limited to $2,000.  On the other hand, if you plan to make a series or a production line based on the ideas, then you have much more to lose and a larger potential claim.  But unless you can prove this financial loss, don't plan on a large settlement.

UPDATE 2013: Thea Izzi points out that it has become common practice for designers to surf the internet for design inspiration. She says, "As an industry designer I use the Internet to trend source and find inspiration from the design and fashion world ... the rise of Etsy and Pinterest and other sites that cater to independent artists, inspiration can be found in abundance there too.

Copycat See'em   © 2010
Recycled tin cans, sterling silver rivets,
Artist: Harriete Estel Berman

What should be done?  In the previous post, it was officially noted that "your work is under copyright protection the moment it is created."  That may sound like you don't need to do anything, but here are some proactive tips. 

Photograph and date records of your completed work.

Keep records of all shows, sales, and exhibitions.

Never let people photograph your work or booth at a craft show.

Hopefully, it never happens ...but if someone starts to copy your work, you will have documentation.

However, without any doubt in my mind, your best protection is your own personal advocacy for your work and the general integrity of the arts and crafts community.  As discussed in earlier posts:

1) Continued professional innovation:

• design to avoid copyright infringement
• develop your signature style and technical skills;
• develop mastery and expertise in your own techniques;

2) Cease and Desist Letters:

• Begin with a "polite" request
• If necessary, send a more formal letter;

3) Help your community

• Teach that copycat work is not acceptable
• Inform the gallery, exhibition sponsor, or craft show organizer whenever you see copycat work;

With or without registered copyright, you must be an active advocate for your work and for the ethics of our community. 

And, yes, if it makes you feel better to register your copyright, go right ahead.

Let's discuss this. . . .  "Here kitty, kitty, kitty."   Stay tuned for the final posts in this series. Please feel welcome to leave your comments or share your experiences.

Harriete

This post was updated on January 13, 2022, to provide current links.

 

Interview on Art and Soul Radio with Harriete Estel Berman about the Secrets to Success.

On Monday, March 1st, 2010, I spoke on Art and Soul Radio about the secrets to success for artists and makers.

Do they exist? Are they really secrets?

Listen to my conversation with Catherine Foster and Sheryl Allen here.



You can visit the web page for Art and Soul Radio and listen to the archived shows to get an idea of what to expect from previous shows. https://www.blogtalkradio.com/art-and-soul-radio

Seems there is even an "'iTunes" option if you are looking for that.

If you have a comment, question, or issue to discuss, let me know now as a comment or through email.

 

Black and White Identity Earrings
© 2009 Harriete Estel Berman
recycled tin cans, sterling silver posts

Did you see the images of my earrings in American Style Magazine? 

Harriete

This post was updated on January 13, 2022, to provide current links.

Copyright - Legally Protecting Your Work

Many artists are concerned about protecting their work from copycats and copyright or trademark infringement.  It is certainly understandable. All of us invest a great deal of time, energy, and money in making our work. 

 

Never Let Your Eyes Deceive You From
the Real Truth © 2001-04
from Consuming Conversation
Recycled tin cans, bronze, 10k gold, resin
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Obtaining your own copyright is relatively easy and inexpensive.  Go online to the U.S. Copyright Office where you can access lots of information and a page of frequently asked questions.

 

In general, you need to fill out the copyright application, include appropriate documentation, and pay the required fees.  Copyright may be for individual work or a related series of work.

As an additional resource, Nolo Press offers multiple pages of do-it-yourself copyright information on their website for free.

 

Consuming Conversation 2 © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

Two questions that people often ask me.  Here are the questions and the answers copied directly from the U.S. Copyright Office page of frequently asked questions. 

 

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. 

These answers bring us directly to several critical issues:

First, it is not necessary to apply for copyright immediately to be protected.  You can apply ("register" your copyright) at a later time.  

Second, what you have created may not be copyrightable. To register (or to be granted) a Copyright with the U.S. Copyright Office you are going to have to prove that your idea is "original" to the anonymous reviewers sitting behind desks at the Copyright Office. This can be a challenge.

I have been turned down for copyright on some of my work. Using found objects of any kind from product packaging, to twigs and seeds, puts you in a kind of gray area by the narrow perspective of the U.S. Copyright Office. The same goes with trying to copyright functional items such as a necklace or a chair. You need to prove that your design for a necklace or chair, as an example, is a truly unique design.

Consuming Conversation © 2001-04
Recycled tin cans, silver, bronze, 10k
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

So, ultimately, is it worth it?  This is the topic of discussion for the next post.

Harriete Estel Berman

This post was updated on January 13, 2022.

 

Cease and Desist Letters - A formal, assertive example to help artists and makers protect their work.

When someone copies your work, what can you do?  In the previous post, a sample letter with a polite approach was provided.  Many artists feel that a personal appeal to "a fellow artist or maker" is better than being confrontational. If that works, fine, but . . .

If you tried being polite and it hasn't worked or you know an imitator will defy your initial efforts, it is time to get more formal and assertive to protect your rights. 

As mentioned in the previous post, it would be wise to step back and take a critical look at the situation.  Is this really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends, mentors, and fellow artists for an honest assessment.  

Collect "evidence" of infringement (e.g. side by side images of your work and the copycat work).  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the Internet to search and start asking around. Examine the details as well as the overall design.  

Ultimately, whether intentional or coincidentally, if it is infringing on your work, you should take action. To keep this in perspective, remember that the copycat is taking something away from you.  They are benefiting from your work and hard-earned reputation.  

A sample of a formal Cease and Desist Letter is provided below.  Modify it to adjust for your specific situation.   Send it to the offending artist or maker first.  Hopefully, this will be enough to resolve the issue.  However, if you get no reply or a belligerent reply, send copies to the offending artist/maker's gallery or representative and any other place where their work is shown (exhibition, book, magazine, etc.)  Your correspondence with these other parties establishes the fact that your work is "prior art" and that you do not condone imitations.  Raising awareness is your most practical path to stop the copycat.  If you do not take action, people may begin to think that YOU are the copycat.

Sample Cease and Desist Letter

Name of artist
address
city, state
web address
email
Address of artist, gallery, or exhibition
City, State

RE: Cease and Desist Copyright Infringement

Dear

I am the owner of and have reserved all rights in the artistic work titled, [name of work] (hereinafter, the "Work"), which was first expressed in material form on [original date of completion].

It has come to my attention that your work titled, [name of work] imitates or is substantially similar to the copyrighted Work.  Consequently, any offering for sale, sale, and display of such work constitutes infringement.   

Or
It has come to my attention that you have made and offered for sale at [name of gallery or exhibition] works which appear substantially similar or in imitation of the Work, which infringes my trade dress rights in violation of 15 U.S.C. §1114.

Additionally, your use and display of these works may cause or has caused confusion and mistake among purchasers thinking that these are the Work or derivatives of the Work, in violation of 15 U.S.C. §1125.

In light of the above, I must insist that you immediately cease and desist from all further use, making, offering for sale, sale, and display of all artwork that is confusingly similar to the Work, and to cease advertising and promotion of such works.  Please notify me in writing that such actions have been taken.  

Alternatively, you may request a grant of limited and non-exclusive use rights which would require that you pay a license fee (among other terms), all of which would be the subject of a separate agreement.

If I have not received your response by [date], this matter may be handed over to my attorneys for further action and additional expense for which you could liable.

Sincerely,
Name of artist
address
city, state
web address
email

If readers of ASK Harriete would like to copy this letter for future reference, I am giving you my permission for future use.

Metalgramatic © 1986
from Critic's Choice
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

If you have additional suggestions to improve this sample letter, please don't hesitate to add a comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

Harriete

This post was updated on January 13, 2022.

 

 

 

Cease and Desist letters - A "kinder, gentler" example to help artists and makers protect their work.

Discovering that someone else's work is uncomfortably similar to yours can be jarring.  Why would they do that?  It is not flattering -- you feel violated. That copycat is taking something away from you.  They are benefiting from your hard work and hard-earned reputation.   

It would be wise to step back from the emotions and take a critical look at the situation.  Ask yourself if it is really an imitation or are both of you using very common materials, forms, or techniques.  Ask your friends for an honest assessment.  It may be time for you to evolve your own efforts toward more unique work.

   Eye of the Beholder © 2009
   Recycled tin cans
   Artist: Harriete Estel Berman 

However, if the other artist's work is just too much of a coincidence, you should take some action.  Do a little research on the other artist to investigate the history behind their work and where they have shown work.  Use the internet to search and start asking around. 

It surprises me, but even with mounting evidence of an imitator, many artists and makers are reluctant to assert themselves for fear of hurt feelings or being labeled a "mean person."

While you have likely heard that there is no such thing as a "nice" Cease and Desist letter, there are occasions when an artist should consider approaching another artist with sincere concerns to protect their work from copycat work or coincidence.

You can raise the issue and awareness without being confrontational. 

 

Below is a sample letter for politely approaching an artist who is doing work uncomfortably similar to yours.  (A more formal Cease and Desist Letter will be in the next post.)  Simply letting them know that you are aware of the similar work may be enough for them to change direction.

Make your own modifications to this sample letter as necessary for your circumstances. Suggestions are in brackets.

sample letter

Date: (Month Day, Year)

Dear [fill in name here],

I am a/an _______  [pick one: artist/ maker/ craftsperson] working  with ____________________ .  [Describe your materials or design style and how long you have been working in this style or with this media.] 

Last week, ___________ [pick one: Google Alerts, a fellow artist, book, magazine, etc.] brought to my attention that you recently published an image of work that appears to  ____________ . [Describe the offending aspect that you feel copies your work without being rude or insulting. Stick to the facts.]

I have been working with this _______ [material, media, style] for the past _____[number] years while your use seems to have been launched more recently.

 

At this time, I respectfully request that you discontinue this particular line of work that so closely resembles my work. The fact that your work is so similar significantly increases the possibility of confusion between my work and yours.   Most galleries, exhibitions, and collectors will avoid showing or buying work that appears to copy an earlier artist's prior work.

Whether the similarity in your work was intentional or coincidental, I hope that this notice will allow you to rethink your efforts.  I sincerely believe that each artist will achieve their best work by finding a unique path that provides long-term growth and personal expression.  Please consider taking your skills in another direction.

I would like to resolve this issue between the two of us without further publicity or involving formal legal action.   Please email me or give me a call at ____________ [telephone number].

Thank you in advance for your cooperation.

Sincerely,

Name of artist
address
city, state
phone number
web address
email address

This is the "polite" approach. If readers of ASK Harriete want to copy my sample letter for future reference, go right ahead.

I also recommend that you use the Internet as a tool by setting up Google Alerts for your name, titles of your work, materials, or techniques so that you can catch copycats early.  And when you find one, at least send this polite letter of concern. 

If you have additional suggestions to improve this letter, please add your comment or contact me directly. My goal is to add a Cease and Desist letter as a topic to the Professional Guidelines. Your help and experience would be greatly appreciated by the entire arts community.

A sample of a more formal Cease and Desist Letter will be provided in the next post. Future posts will cover legal protection and other recent points of discussion.

Harriete

This post was updated on January 13, 2022.

Designing to Avoid Copycat, Copyright or Coincidence

Previous posts discussed the problem of copycat work. I hope that you have had a chance to read my Opinion article titled "COPYCAT, COPYRIGHT or COINCIDENCE"* in the January issue of Metalsmith Magazine, Volume 30/No.1/2010.

  Earrings © 2010
  Recycled Game Board
  Harriete Estel Berman

While researching for this article and interviewing artists and makers, several suggestions surfaced about how to design your work during the creative and fabrication process to avoid copycats or, at least, minimize the chances.

The suggestions below are meant to be approaches or methodologies during the designer's or maker's creative process.  Legal methods such as a Cease and Desist letter and applying for a copyright or trademark are covered in other posts.

1) Avoid using any commercial kits, forms, patterns, molds, glazes, etc.  For example, PMC (Precious Metal Clay) makers can buy patterns to emboss textures. If you can buy these patterns so can other people. The same goes for patterned metal sheets, pre-printed papers, etc. Create as many original materials for the fabrication of your work as possible.

 

  Plexiglas Beads I made for new work
  © 2010
  Artist: Harriete Estel Berman

2) Use more unusual materials that you find from obscure resources or make yourself.  For example, using beads purchased at Michael's art and craft store means that anyone else can buy the same materials. While it takes greater effort to create each and every component in your work, the resulting unique pieces make it far more difficult for other people to duplicate your signature style. In other words, make your own beads, paper, colors, patterns, glazes, etc. from start to finish.

 

3) Reinvent your materials. Even taking common everyday materials and using them in new innovative ways can create a signature style.

 

 

4) Make your work more complex, and detailed. This will eliminate many would-be copycats who don't want to invest the same amount of labor or tedious effort.

 

  The Dilemma of Desire © 1997
  Recycled tin can candy box
  Artist: Harriete Estel Berman
 Candy box hold tacks that look like
  M & M's -

5) Continue to innovate and develop within your own signature style.  Continuously repeating one style, fabrication method, or technique without growth allows other people to catch up.  Constant evolution is the key!

 

6) Develop mastery and expertise in your own techniques. Working with the same materials over many years with constant innovation can lead to mastery of skills and expertise that would make it impossible for others to copy your signature style. 

 

  The Dilemma of Desire © 1997
  Artist: Harriete Estel Berman
  Inside view of candy box.

7) If you work with commonly available materials (that anyone can find, buy or cast) you will have to make more work, better work, and be better at your own publicity and promotion than anyone else.  You can't depend on copyright as protection.

 

 

 

8) If you work with historical forms and symbols (such as Celtic Circles, as just one example), it will be difficult to develop a signature style or identity. Innovate beyond your original inspiration. Try to develop your own vocabulary of forms.

 

9) Don't teach workshops in your signature style.  I know this isn't going to be a popular statement.  Workshops are great for teaching a wide variety of skills, but I'm shocked when artists and makers teach their signature technique or style.  They are teaching a whole room of people to be copycats. 

 

 Words Like Winter Snowflakes (pins)
  © 1999-2004
 Recycled tin cans, brass, s.silver,
 Artist: Harriete Estel Berman
 Pins can be worn as a group,
  individually or rearranged.

What else can artists do in the design of their work to prevent copycat work?

 

 Words Like Winter Snowflakes
 © 1999-2004
 Recycled tin cans, brass, s.silver rivets
 Artist: Harriete Estel Berman
 Photo Credit: Philip Cohen

Do you have ideas to share about how to prevent copycat work? Please share your ideas with others as a comment. 

Harriete Estel Berman

 

*Download "CopyCat, Copyright, or Coincidince: Maker Beware" by Harriete Estel Berman written for Metalsmth Magazine. 

 

This post was updated on January 13, 2022.

 

 

 

 

 

 

 

 

 

 

 

 

 

Harriete Estel Berman by ASK Harriete is licensed under a Creative Commons Attribution 4.0 International License.
Based on a work at http://www.askharriete.typepad.com.

Copycat, copyright or coincidence - simple steps for prevention.

This is the second post regarding the 2010 Winter issue of Metalsmith Magazine, Volume 30/No.1/2010 in which I wrote an opinion article titled, "COPYCAT, COPYRIGHT or COINCIDENCE." This post discusses some of the steps that can be taken to prevent or resolve problems of copycat, copyright, or coincidence. 

After many interviews, I now realize that artists and makers too often lack confidence and knowledge about what actions can be taken to reduce or confront imitations.  I was especially surprised to learn that many artists are reluctant to take any action at all.  It makes them uncomfortable or they do not want to be viewed as a “bad guy.”   This has got to change!   

Would you stand in line and let someone step on your toes? Would you let them push you out of line? Wouldn't you say something? Letting copycats infringe on your own signature style is a very close parallel.

Artists and makers can take simple and inexpensive defensive measures to protect their designs and techniques.  No matter how the imitator got there, whether copycat or coincidence, the imitation looks like copyright or trademark infringement to me and everyone else.

1) Academic programs, workshops, and instructional books must make this issue part of their curriculum.  Any mentor or teaching forum should clearly state that copying is not ethical and should encourage students to create their own identity. 

2) Each artist and maker is personally responsible and must be an advocate for his or her work. Artists should not be bashful or reluctant to stand up for their work and their livelihood.

3) The artist should send a copy of a Cease and Desist letter to every exhibition, gallery, show, wholesale/retail event, or book that displays copycat work that infringes. 

4) No exhibitions or craft shows should admit work that is a "copycat" in nature. This includes student and emerging artist shows. While this is impossible to implement 100 %, jurors have a responsibility to be well informed about their field. It is also very helpful to appoint jurors to review work within their field of expertise. For example, I would not be a good juror for a glass show as this is not my area of expertise.

5) Finally, everyone can help. Copycats should not be allowed to hide in broad daylight. Raising awareness is the most effective remedy.  Whenever or wherever anyone sees copycat work, tell the gallery owner, exhibition sponsor, or website owner about it.  Most professional venues value their reputations and will remove copycat work that is brought to their attention.

The next post suggests modest changes artists, designers, and makers can make to the design and fabrication of their work to help prevent and protect your work from copycats and/or copyright infringement.

Harriete

Lifesaver Bracelet - Identity Collection
© 2007
Recycled tin cans,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
more info

This post was updated on January 13, 2022.

Copycat, copyright or coincidence? An Opinion in Metalsmith Magazine

In late January 2010, the winter issue of Metalsmith Magazine, Volume 30/No.1/2010 includes an Opinion article that I wrote titled, "COPYCAT, COPYRIGHT or COINCIDENCE". This publication should be at your newsstands or waiting in your local library.  Subscribers of Metalsmith already have their issues.

I hope you get a chance to read the entire article in the magazine, but to facilitate a dialog on this blog, a summary of the opinion is presented below.

How often have you said or heard, “That looks just like . . . (some other artist’s) work.”   The arts and crafts community is suffering from “copycat-ism” or more accurately, infringement of intellectual property or copyright infringement.  It is infecting the entire art and craft community, from schools and universities to wholesale/retail shows, stores, galleries, books, and even award competitions.

The problem is not new … but the Internet has given this issue greater visibility, and at the same time, a viable path for advocacy to confront this issue.

For years major craft shows have grappled with this problem.  But what about other situations such as commercially oriented wholesale/retail shows, galleries, websites, or other market venues?  What about knock-off manufacturing?  In my research for opinions, it seems that some imitators justify the production of copycat work with the fact that the originator is not in the same show.  GASP!  I envisioned the guys at Times Square showing me “Authentic Rolex” watches from the inner lining of their overcoats or Gucci bags at a flea market. So who loses? All of us are hurt by this practice. 

The remainder of the article goes into more detail and outlines how we can help our community.  In the next few posts, I will be offering a practical action plan, a few tips on how you can prevent this from happening to you, and two samples of Cease and Desist letters.

Vigilance and vocal opinions are necessary to help inform the arts community.  Please share your tips and suggestions with others in the comments below this post and upcoming posts.

Do you have any experiences with copycat, copyright, or coincidence? I think the only way to deal with this is an open discussion.

Please feel welcome to leave a comment below.

If you have a lot to say (especially if you have images of originals and copycats or look-a-likes, as examples) you may ask to be a "Guest Author".

Harriete

This post was updated on January 11, 2022.  
 

Hey, I'm on TV working in the studio.

Eons of Exodus    ©   2008
Recycled tin cans, Plexiglas, 10k. gold,
sterling silver and aluminum rivets.
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen
Permanent Collection of the
Minneapolis Institute of Art

Our local PBS station, KQED produces a show called SPARK which spotlights local artists and their creative processes.  You can watch my 3 minutes of TV fame in a story about the Contemporary Jewish Museum and the exhibit “New Works/Old Story: 80 Artists at the Passover Table.”  The segment includes me working on my seder plate in the studio and talking about the inspiration behind this work.

If you want to catch the segment online it can be seen on the KQED website HERE.

I hope you get a chance to watch it!

Let me know what you think.

Harriete

This post was updated on January 11, 2022, to provide current links.

Updates from Boris Bally

Here is an UPDATE from Boris Bally.

A previous series of posts about late or non-payment from galleries/stores included an account from Boris Bally about his experiences. He would like to add this addendum from the "pen of Boris Bally":

Regarding IMEC

I was stunned today to discover a check (no note) in today's mail. I finally received payment from Luis at IMEC- in full! (there were no finance charges assessed, as I wasn't aware how long ago (since the 14 months or so- that I sent the work) the pieces actually sold (due to poor communication.) This is why I continue to dislike consignment with disorganized galleries- ugh! If Luis had paid me, or even communicated with me when I wrote my first note, I never would have thought to come forward with my story. 

Regarding Robert Kaylor, R Grey Gallery in Boise, Idaho

Yes, they finally paid the amount due and later (actually) paid me yesterday (!!)... for the final interest balance.. that they questioned (!!) 

So we are all squared away after months (of no communication).  They didn't reply to tell me they were paying the balance off.. otherwise, I may not have used them as an example.  Again, a small communication would have helped them.  Go figure!

It is a good lesson that a little communication goes a LONG way! Anyway, I want to thank you, Harriete, and Joan, for helping raise your voices in solidarity, and to give mine more range. In the end, who knows why I eventually got paid...? I am just really happy to end on a good finish and be DONE 'neatly.' THANKS a million!

xo

-Boris

This post was updated on January 11, 2022.

Net 30 Application for your accounts - with Interest Charges for Late Payment

The past three posts regarding late payments from galleries or stores hit a raw nerve.  This fourth post on the topic focuses on purchase orders on credit and an example of Net 30 terms. (This is not about consignment situations.)

How bad can it be?  If a gallery or store delays payment for purchased work, it permanently strains the relationships with their artists and makers.  In purely financial terms, it is equivalent to forcing the artists (without their consent) to extend a loan to the retail location.  In broader terms, it undermines the long-term business of the gallery or store due to the hard feelings generated.

I have empathy for the gallery and store owners who must maintain minimum cash flows during these tough economic times.  But artists and makers depend on cash flow also.  So when an agreement has been made and a transaction occurs, it is not only common decency but good business practice to pay the makers on time.    

As an artist, your best approach is to be a better advocate for your art, craft, and small business.  Your purchase order policies and Invoice should clearly state your terms for payment and consequences of late payment from the very beginning to avoid confusion and misunderstanding.

If a new account wants to order your work, I recommend that the first several transactions be handled as full payment in advance of shipping.  If these transactions proceed without incident and they request credit, Net 30, or extended payment, then you should be prepared with an Application for Net 30 or a similar credit application form that spells out the terms.

Boris Bally has graciously allowed me to show his Application for Net 30 for his accounts. Download NET30_Application.  An image of his form is shown below my signature and a discussion of each term follows.  This form is specific to Boris, so you should create a form that applies to your particular circumstances.  

Credit card alternative. To avoid the NET 30 Application Process and the uncertainty of prompt payment, you could have the store or gallery pay for orders on their credit card. They would get a "float" for about 30 days, and you receive payment immediately. The fee from the credit card company (usually 1% - 3%) may well be worth the certainty of being paid on time. You can call the store just before you ship the work and they pay with a credit card to complete the transaction.

It is also important to note that Boris states (in his Application for Net 30) that he will not send more work if the account is past due. 

Why do artists send more work to galleries if they are owed money? From what I hear, many artists think that selling some work and getting paid 3-4 months late is better than not selling work.  I don't agree with this line of thinking. It encourages bad behavior because there is no negative consequence.  Think about it, there are only two scenarios.  If the owners simply have a bad habit of paying late, then an interest charge would give them an incentive to pay on time or you would earn interest on your funds that are unavailable.  And if they are using your money to pay last month's rent, then you are risking the loss of the entire amount when they go out of business.  Is that a risk work taking? 

Harriete

Example Application for Net 30 as an image. Download NET30_Application. 

The Application for Net 30 for his accounts is probably a pretty standard form except for the clause near the bottom. Boris Bally means "Business" with a capital B when he sends his work to a retail location. If a payment is late he expects the store/gallery to pay a late fee. I have copied and pasted this important clause below:

Credit policy and disclosures for NET30 Account:
All bills are due and payable, in full, thirty days after date on invoice. A finance charge will be imposed on any amount thirty days or more past due at a periodic rate of 1.75% per month. (annual percentage rate 21%) This rate is based on your past due balance at the end of each billing period. Please note: Orders placed on past due accounts will be held until the account is current or may be sent COD at your request. No returns on orders unless prior written approval by Atelier Boris Bally. If your account is turned over to a collection agency or attorney for collection, or in the event of default, all collection, legal expenses, and reasonable attorney fees will be paid by the debtor and be processed in and according to the laws of the State of Rhode Island.

You could copy this clause and add it to your invoice. The merit is that Boris Bally clearly states his payment expectations for payment within a specific period of time, interest rate per month, annual percentage rate, how the rate is established, returns, and what happens if the account is past due.   

Of course, you would want to check your state laws for legal compliance and change the final sentence to  "....according to the laws of the State of __(your state name)__.)

Thank you Boris Bally from ASK Harriete and all the readers for sharing your insight, invoice examples, and personal experience.

If the readers of ASK Harriete have terms that they would like to share with this audience, they may paste it below in the comments or send it to me directly. It might be useful to compare terms and create momentum for prompt payment and appropriate interest payments if payment is past due.

This post was updated on January 11, 2022.

Payment Terms for artists and craft businesses.

The recent post on late payments from galleries and stores seems to have touched on a very sensitive nerve, judging by the number of comments.   Apparently, a lot of people have had some painful experiences.   I will continue to collect your opinions, comments, tales, etc., and will follow up with more action items soon. 

Today, though, I'd like to focus on establishing the right payment incentives at the beginning of a galley, store, or customer relationship.  Specific payment terms and the consequences of late payment should be written into the consignment contract, purchase order, or invoice, whichever you use.  Interest should be charged on payments not received by the due date, with no exceptions.  If the establishment is holding your cash, they should pay interest as mutually agreed in the contract. 

Like so many over situations, it is best to be prepared in advance with your Application for opening new accounts and your Ordering Policy.

Boris Bally has graciously agreed to show his Order Terms (download Order Terms) as an example.  An image of his Ordering Terms is shown below my signature, followed by a review of the terms (and some practical suggestions).  This is fairly specific to Boris' business.  You should adapt it to your circumstances.

Harriete

Boris Bally purchase order policy (Download Order Terms)

Exclusive** representation of an artist's or crafts person's work should require a minimum purchase. In Boris Bally's example, this only includes the area code.  Note that the Exclusive Representation is not extended to an entire city or state. Keep in mind that everything is negotiable, but why should artists offer Exclusivity for their line if the retail establishment is not adequately representing or selling your merchandise or art.

Everything is negotiable but establishing a  minimum amount for annual retail purchases is one guide for an Exclusive Representation. The big picture is that the retail establishment should clearly establish that they represent and sell within a specified geographic area to demand exclusivity to a state or several state boundaries. 

Consignment*** is for select exhibitions. Consignment is a very difficult way to make a living from your work. You don't have any control over inventory, display, or promotion and have no guarantee that your work will sell. It can sit there for months, or even years.)

Payment is outlined clearly for first-time orders, Proforma****, and accounts.  It is suggested that you try to get credit cards for orders (which means prepayment so you don't have to chase down checks)  Even though that entails a credit card fee (usually between 1-2%) it's worth not having to worry about getting paid in 30 days, or subsequent phone calls and emails when the payment doesn't arrive.  Stores are more used to this and they get 30 days from the credit card company so it doesn't make a difference to them.

Delivery should be clearly described. Sometimes this might be called Shipping.

Shipping indicates who is responsible for shipping to the gallery or store and whether it is a fixed % of the total order for simplicity, or based on the weight of the box(es), or the dimensional weight of the box. (Shipping companies charge by the dimensional weight of the box if the box  is very large but light.) Keep in mind that Boris Bally's example is for the purchase of retail goods (not on consignment). 

It also might be a good idea to clarify your preferred shipping method, for example, ground or air, USPS or Fed Ex, etc.

Purchase Orders usually expect the store/gallery to pay shipping. Consignment Contracts usually expect the artist to cover shipping to the Gallery or store. This increases the cost to the artist.

Order Policy specifies that the order may not be canceled and they do not offer cash refunds.

ADDITIONAL CONSIDERATIONS:

SPECIAL ORDERS:  If you will produce special orders or custom items establish your policy in advance including the lead time needed to produce the item, pricing, and returns or exchange on special orders. 

REPAIRS AND ALTERATIONS: How do you want to handle repair and alterations to your work? Are you going to charge for repairs? Are you going to charge for shipping? Can your work be re-sized or changed to fit the person or installation? 

MINIMUM ORDERS: Do you have a minimum order? Do you have a minimum for first-time orders? A minimum for subsequent orders? Is this a dollar amount or a specific number of items?  

INTERNATIONAL Orders and shipping?  International shipping is incredibly expensive. I shipped a pair of earrings to Australia and it cost the customer $28.00. Unless you have lots of experience with International Shipping, perhaps you will want to handle this on a case-by-case basis.  

If the readers of ASK Harriete have a TERM Sheet, Ordering TERMS, or Purchase Order Terms that they would like to share, please consider leaving your ideas as comments below or write to me directly. It would be great to develop an example of Purchase Order Terms in the Professional Guidelines, but I need your help.

Harriete

Definitions and image information are below:

"Pain" image found at: http://research.unc.edu/endeavors/spr2005/pain.php

Plan Pin was constructed by Harriete Estel Berman from recycled tin cans.

Professional Size Pin constructed by Harriete Estel Berman from recycled tin cans.

Exclusive** representation: The term “exclusive” implies that the gallery will be the only representative for the artist usually within a stated geographic boundary, for a specific body of work, or extent of sales. The geographic territory could be limited to a single city or town, a radius of a specified number of miles, the region, one state, several states, or nationwide. As for the scope of an artist’s work, an exclusive representation could be limited to a specific body of work, or a specific medium or type of work (e.g. jewelry vs. hollowware).

In contrast, the term “non-exclusive” means that the artist may sell the same work to a multiple number of businesses within the stated geographic territory.

This definition was taken directly from the Overview in the Consignment Contract as part of the Professional Guidelines.

Consignment***: Consignment is where the artist loans the work to the gallery or store and is only paid after the purchase of work. In effect, they borrow work from an artist for display in the gallery and then pay the artist only when it sells.  This arrangement limits the gallery’s capital outlay, so they can devote more of their resources to paying for rent, staff, publicity, or other costs of doing business.

A consignment arrangement has advantages and disadvantages.  For example, one advantage is that consignment can allow a gallery to show risky or difficult work since their money is not tied up in purchasing inventory.  However, a disadvantage is that even though the artist’s work is in the gallery’s possession, the artist isn’t paid until the work is sold.  This business arrangement is complicated enough that misunderstandings and difficulties can arise if the parties have not been clear about the terms of the arrangement from the beginning.   

This definition was taken directly from the Overview in the Consignment Contract as part of the Professional Guidelines.

Proforma****: Proforma is a business term for "Assumed, forecasted, or informal information presented in advance of the actual or formal information. The common objective of a pro forma document is to give a fair idea of the cash outlay for a shipment or an anticipated occurrence. Definition from businessdictionary.com

 

This post was updated on January 11, 2022, to provide current links.