Annmarie,
There have been some good comments here. I sense there are two lines of discourse going on here. 1) What are an artist's right to his/her creative work inherent to artists. 2) What are the makings and rights within an agreement between an artist and museum.
First, I think we're really talking about design consultants, not artists (although there may be and often are artists providing work under the scope of the design consultant). Yes, as others have stated it's the contract or agreement between parties that define these rights and ultimately define each party's understanding.
I frankly do not see the need to have a lawyer draft every single agreement between parties. It most important that the museum and consultant include the various rights scenarios in an legal contract and that future usage is understood more so than creating crafty language. Mike L is right that there's a difference between work-for-hire and consulting agreements and that those are two typical tools used to get work done. Honestly, I do not use work-for-hire agreements for design consulting to a museum. Work-for-hires are effectively a tool that allows for one entity to use an outside party as if they were inside the organization for a specific creative effort. The outside party through work-for-hire doesn't retain any rights, including marketing materials or usage of work not ultimately used by the contracting entity. Often every file and stitch of that work is handed over. For example, if I need a graphic production artist not employed by my firm to layout 50 object IDs then a work-for-hire is a perfect tool. The production artist is providing a mechanical creative service under direction and for the entire benefit of the my firm. They should not expect any continued rights for this kind of simple work and I expect that they hand everything over and basically walk away.
However, full exhibits are a much bigger thing and there are lots of rights issues embedded within exhibit design/development consulting that are factored into a good contract.
Here's a short list of factors:
Length, Location and Quantity
A contract should detail if the exhibit is permanent or temporary and where/how many of them are being displayed. If I'm contracted to design a temporary exhibit that will show at one location the museum's rights to the creative work are different than if it's going in 20 locations around the country as permanent displays (unlikely, but I'm making the point). Here's a parallel: If you commission an architect to design a custom home you have the right to build that home, but would not expect that you then have the right to resell that design to a developer to build it all over the suburbs. The consulting designer builds a fee based on these factors.
Right to Images and Artwork
Exhibit designers are very often buying art and images created by other artists for use in exhibits. If the museum is contracting for a permanent exhibition at one location the consultant will buy rights and transfer then to the museum for that location, quantity and duration. If the museum decides to use a graphic from the exhibit at the printed brochure then that may violate the rights of the artists underneath the consultant's contract (I buy the rights to print a copy of a photo at a certain size for use at a certain location and duration). Newly created art is the same. If I commission a sculptor to make a bronze for an exhibit that artist and even my firm may want the right to reproduce that for use in other locations. This is unless the contract specific states that the museum has EXCLUSIVE rights (and the museum should expect to pay a different fee based on that).
Unused Ideas
As part of any creative endeavor there are always great ideas that don't get used. A consultant may present three ideas and only one is selected. It would be typical that the consultant has not granted the museum rights to own those unused ideas since they were not the final work product. Rather, the exhibition is the product of the contractual relationship so any unused ideas are typically within the ownership of the creative consultant unless this is specifically addressed.
Rights to Digital Assets
Consultants produce ready-to-use graphics and media for use in exhibition. However, the tools (digital files) typically stay the property of the consultant (some agencies specifically contract this right away from consultants, fyi). It's like this: If you bring your car to the mechanic they may fix your timing belt, but you'd never think that you then have the right to use their wrenches into the future because they fixed one thing. However, sometimes a museum may want these files as part of the work product for future updates and changes. That should appear specifically in any contract. Same for media...the video firm provides final masters of their work, but not their native files. Again, it should be included. Frankly, this is often the source of awkward conversations after a project is over...and can be avoided is addressed before the project even starts.
By all means other considerations can come into play. This is not the makings of an entire contract but rather some factors that are often overlooked by parties. As far as your original question about rights of the consultant/artist if they leave the project, that party may have some rights for the work they produced that was paid for, but what those rights are will certainly be based on contract language. However, rights to a theme or concept as an exclusive owner seems outside the realm of any reasonable expectation from a consultant. Consultancy of design is a service that is based on providing creative solutions to topics and problems defined by a museum. Consults aren't sitting in their studio coming up with a piece of art that has not outside input and influence. By the nature of collaboration of nearly all museum exhibit design projects I cannot see a consult seeing that the intellectual themes/topics are their rights since they were developed in conjunction and for the benefit of the museum/exhibit.
Hope this is helpful in your thinking through your relationships with those whom your working with.
Warmly,
Seth
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SethFrankel
Principal, Studio Tectonic
Boulder, Colorado USA
seth@studiotectonic.com
www.studiotectonic.com
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Original Message:
Sent: 06-04-2015 02:16 PM
From: Annmarie Reiley
Subject: Artists/intellectual rights in exhibit contracts
I'm interested to know what are the artist (intellectual) rights in guest curated exhibits? If a museum hires a contractor to research/write/design an exhibit, what are the artist rights for that individual? If the artist leaves the project or fails to produce any major work, does he or she get any rights the exhibit? Can the artist claim all rights to exhibit (even just the theme/topic?) Any help would be greatly appreciated! - Thank you-
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Annmarie Reiley
Morris Center for Lowcountry Heritage
Ridgeland SC
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