Protecting Your Rights in Collaborative Art Projects

By: Arisa B. Forest, Esq.

After reading Art Collaboration and Authorship Issues, written by Nikita Mary Abraham, you feel empowered, educated, and ready to create a collaborative NFT art project!! Amazing!! However, it is now time to have the real conversation…That is, how do you ensure that your ownership rights are protected?

Collaborations can take on many different forms and are common in the NFT space. Oftentimes these collaborations span time zones and countries with collaborators only having met each other via virtual chat rooms and online meeting spaces. This element of global, digital connectivity is the aspect that makes the NFT space seem magical–the global economy is accessible now to more than just major corporations. However, this aspect can also create a level of ambiguity and uncertainty in the minds of creative professionals who want to adequately protect their ownership interests in collaborative art projects. This article aims to lend some assistance in clearing the fog.

To properly protect yourself in collaborative art projects, it is advised to do the following:

1. Assign roles for each contributor;
2. Determine intellectual property ownership for each contributor; and
3. Execute a written agreement.

Assign Roles

In any collaborative art project, it is essential to clearly assign contribution roles. This step is necessary in ensuring that all parties properly understand their contribution. For instance, if parties are collaborating to create a PFP NFT collection, each party should be aware of their contributing role, (i.e. front/back-end developer, creative director, graphic designer, etc.), and these roles should be assigned early. As a project develops, these defined roles are not only critical to guarantee the success of a project, but are also vital in establishing the extent of each party’s contribution, establishing ownership of intellectual property rights, and determining what each party will get in return for their contribution to the project.

Further, “work for hire” or “work made for hire” agreements are significant contracting structures to be mindful of when engaging in collaborations. A “work for hire” or “work made for hire” agreement permits a creator to contract with another party for a specific purpose or project. These agreements are unique in that they serve as an exception to the general copyright principles, and creators voluntarily divest copyright ownership of the created work. If collaborators intend to enter such an agreement, roles should be assigned at the outset to ensure that all parties are aware of the terms of the collaboration.

Negotiate Intellectual Property Ownership

Generally, collaborative art projects can be classified as joint works. In joint works, each party’s contribution must be independently copyrightable for a party to qualify as a joint author. In this instance, a contribution of an idea that has not been documented in some physical form does not qualify as independently copyrightable. To be fair, there are a few distinct instances where contributors may not be classified as joint authors. One instance is where coders are contributors in a collaborative art project. For a more in-depth discussion on this point, please read Generative Art and Copyright-Part II, written by Felix Yuen.

Under copyright law, parties in a joint work own the work’s copyright jointly and equally. In turn, each party has exclusive right to exercise any and all rights inherent in the joint work including:

• Granting third parties the right to use the work on a nonexclusive basis without permission from other joint authors;
• Transferring their individual ownership interest in the joint work without permission; and
• Pursuing infringement claims on behalf of the work.

Each party in a joint work is also responsible to make an account of all revenue obtained from licensing the work to the other joint authors. However, these rights discussed above are the default rules under current copyright law, and copyright ownership in collaborative art projects can be negotiated. Negotiation can be a useful tool in any business situation. Therefore, it is advised that creatives utilize this tool to assert their own terms and conditions as it relates to copyright ownership and what rights each party has in exploiting the copyright. In negotiations, it is key to have clear objectives and to determine the nature of the collaboration. It is important to note here that if collaborators have entered a “work for hire” or a “work made for hire” agreement, the scope of negotiation may be limited as it relates to assignment of copyright ownership due to the nature of that type of agreement. Nevertheless, the terms of the negotiation should be memorialized in a written agreement that is executed by the parties.

Execute A Legal Agreement

The written agreement is a crucial and most efficient tool to protect the rights of parties in a collaborative art project. The written agreement should address pertinent issues such as:

• Scope of the project;
• Each party’s contribution;
• Copyright ownership and use;
• Rights to revise the work with or without consent;
• Revenue distribution;
• Warranties against copyright infringement;
• Remedies for contract breach;
• Dispute Resolution;
• Designation of the applicable law that governs the agreement; and
• Term and termination.

A written agreement can be beneficial in capturing the exact terms agreed upon by the parties and can be utilized to ensure that each party is held accountable for their contributions to the project. As it relates to the NFT space, these agreements can be used as guiding resources to resolve any inconsistencies that may exist in global jurisdictions as it pertains to intellectual property and commerce. For example, a “work for hire” or “work made for hire” agreement is primarily a United States copyright law construct. Hence, global jurisdictions may not acknowledge this agreement, and creators may retain copyright ownership of the created work in their respective countries. To ensure that copyright ownership is properly assigned in this case, it is recommended that the agreement includes explicit assignment language and is properly executed by all parties. It is also important to understand that many countries do not permit the transfer or assignment of moral rights (i.e. the right of attribution or the right of integrity) absent an explicit waiver of these rights. Given the nature of the “work for hire” or “work made for hire” agreement, it is important that there is an explicit waiver of these rights in any written agreement between collaborators outside of the United States if copyright ownership will be assigned to a single party. Here, however, it is important to note that some countries do not permit the waiver of these moral rights at all.

It is always recommended to consult a legal professional to ensure that a written agreement is legally sound. If parties’ budgets do not make room for a legal consultant, internet resources are accessible for guidance. These internet resources, however, should be utilized with caution. If the uncertainties begin to mount, it is best to create a budget for legal counsel.

Conclusion

What is the moral of the story? It is key that creative professionals are their own advocates and retain integrity of their intellectual property when collaborating with others. The most effective protection strategy is to have a legally sound written agreement in place before work begins to avoid any conflicts that may arise.