Terms and Conditions of Delivery and Reproduction of
Art Resource Digital and Analog mages
1. Photographs and digital files may not be used in any way including layouts, sketches, or photostats until submission of an ART RESOURCE invoice indicating recipient’s right to use same.
2. Digital files may be retained for sixty (60) days or until the date indicated on the invoice. Unless this period is extended in writing, recipient must delete the digital files from all electronic and removable media and destroy any other copy of the digital files, except as licensed under this agreement. ART RESOURCE's copyright information and image identification number must be kept with the digital files while recipient retains them.
Photographs and Digital Files
1. Photographs and/or digital files remain the property of ART RESOURCE. Recipient does not acquire any right, title or interest in or to any Photograph and/or digital file, including, without limitation, any electronic reproduction or promotional rights, and will not make, authorize or permit any use of the Photographs and/or digital files made therefrom without the approval of ART RESOURCE other than as specified herein. Full credit and copyright information included with the Photographs and/or digital files must remain with the Photographs and/or digital files.
2. Time is of the essence in the performance by recipient of its obligations for payments and return of Photographs and/or digital files hereunder. No rights are granted until payment in full is made to ART RESOURCE. Failure of recipient to notify ART RESOURCE of usage of ART RESOURCE Photographs and/or digital files prior to usage will invoke a minimum thirty-three and one-third percent (33.3%) surcharge to the usage fee.
3. Payment herein is to be net thirty (30) days and must not be postponed until the appearance of the work. A service charge of two percent (2%) per month on any unpaid balance will be charged thereafter. Any claims for adjustment or rejection of terms must be made to ART RESOURCE within ten (10) days after receipt of invoice.
4. In the event that recipient uses any Photograph and/or digital file in a publication, recipient shall provide ART RESOURCE with two (2) gratis copies of such publication upon printing.
5. Photographs and/or digital files must bear a credit line as indicated by ART RESOURCE. Failure to credit ART RESOURCE shall invoke a minimum thirty-three and one-third percent (33 1/3%) surcharge.
6. All rights not specifically granted herein to recipient are reserved to ART RESOURCE.
a. Recipient agrees that the above terms are made pursuant to Article 2 of the UNIFORM COMMERICAL CODE and agrees to be bound by same.
B. Copyrightability of Photos of Works of Art
1. The seminal finding in Anglo-Saxon jurisprudence is the Graves Case. In it, Judge Blackburn held that “The distinction between an original painting and its copy is well understoodall photographs are copies of some objects, such as a painting or a statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of the Copyright Act.” (Graves Case, 1869, L.R. 4 Q.B. 715).
2. In the U.S., the eminent American jurist, Learned Hand, held that “no photograph, however simple, can be unaffected by the personal influence of the author. Nevertheless, he went further by saying “photographs are protected without regard to the degree of personality which enters into them.” [Jeweler’s Circular Pub Co. v. Keystone Pub Co. 274 F 932, 934 (S.D. N.Y., 1921)].
3. In a more recent case, Masterson Marketing, Inc. v Lutos Intl, Inc., adjudicated in 2008 (2008 WL 557412, p. 16 (S.D. Cal. 2008)), Judge Hand found “Plaintiff selected the angle, arrangement of the lighting, and background for each photograph. The presence of these factors in a photograph generally supports a finding of originality sufficient to support a copyright.”
4. In the 2011 case of “Salvator Mundi LLC v. Laura Sotka and Sean Brothers,” the court held that plaintiff owns a valid and protectable copyright in a digital photographic interpretation of the restored painting Salvator Mundi. “Defendant agrees that the copying, distribution and public display of the photographic work violates plaintiff’s exclusive rights in the photographic work as provided in 17 U.S.C.10b et seq, and infringes plaintiff’s rights pursuant to 17 U.S.C. 501 et. seq (2011) CIV. Action 7:2011 CVO 05404)”
5. It is also worth emphasizing, that ART RESOURCE and most museums license images of works of art under an explicit contract which creates an obligation on the user, in addition to and separate from that of copyright. The agency or museum lends a transparency or releases a high-resolution digital file for reproduction usually for a one-time specified use at a set fee, thus constituting a contract. Once reproduced, the user is expected to return the transparency or to delete the digital file.
B. Restrictions As To Use of Photographs and Digital Files
Recipient agrees not to sell, sublicense, re-license, rent, or lease any Photographs and/or digital files, or any material derived from the Photographs and/or digital files, either in whole or in part, or to otherwise make any advertising or commercial use of the Photographs and/or digital files, or any material derived from the Photographs and/or digital files, except as expressly agreed in writing by Art Resource. Without limiting the foregoing, recipient agrees that it will not: (a) archive, republish or transmit any of the Photographs and/or digital files by any method without ART RESOURCE's prior written consent; (b) copy or publish any of the Photographs and/or digital files to a network or bulletin board, or otherwise distribute or allow any of the Photographs and/or digital files to be distributed to or used by anyone other than as permitted hereunder, without the prior written consent of ART RESOURCE; (c) use the Photographs and/or digital files to promote a business that sells or licenses Photographs and/or digital files, or otherwise competes with ART RESOURCE in any manner; and (d) use the Photographs and/or digital files in any manner that would discredit or disparage Art Resource or the owner of the Photographs and/or digital files.
Recipient agrees to indemnify and hold ART RESOURCE, and the owner of the Photographs and/or digital files, harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorney's fees, arising from recipient’s use of a Photograph and/or digital file or any breach of this agreement. Any additional rights, consents or permissions as may be required must be cleared in advance by the recipient.
E. LIMITATION OF LIABILITY
Under no circumstances shall ART RESOURCE or the owner of the photographs and/or digital files be liable for any direct, incidental, consequential, indirect or punitive damages from recipient’s access or use of the photographs and/or digital files. In any event, the limit of liability of ART RESOURCE and the owner of the photographs and/or digital files shall be the fee paid by recipient for use of the photographs and/or digital files.
F. Dispute or Claims Arising Out of Submission and/or Use
Any and all disputes arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in New York City, New York, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in any court having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of New York. If recipient is an agent for or an employee of a non-U.S. company that operates in a place of business in the United States or its territories or in Canada, recipient expressly agrees that any dispute regarding this agreement shall be adjudicated within the United States in the manner described here.
This agreement is not assignable or transferable by recipient.