How can one sell prints yet be sure to retain commercial rights to the work?

Question

A friend has offered to sell me prints of some of her photographs, and we were wondering if it would be wise (in principle) to have me sign something which commits me not to reproduce or resell the work as a condition of sale. She trusts me, but i was wondering if it's good practice. If so, any links to a template or boilerplate doc we could use? Thanks

Answer 1

In most countries you can resell the object (ie, the print) because a "sale" is a transfer of property. This is true also for art works: successful painters see their works resold during their lifetimes and they don't get any share of that[*]. If would be very uncommon to forbid resale. It could even be impossible in some countries; some judges could see it as an unfair clause, unless the artist offers to buy it back at its market price.

However the artist keeps the copyright, so you cannot make (and even less sell) reproductions of the art without the artist's consent.

[*] which isn't a problem for them, if their past works are worth money, their new ones also are and they make a decent living selling new works.

Answer 2

At least in the UK:

• If there's no transfer of copyright, you don't have any rights to reproduce the photo, so no problem. This is just like if you buy a book from your local book store, you can't make a copy of the book.
• In general, you can't restrict the right to resell a physical object. The important case here is the ECJ case UsedSoft vs Oracle (so actually applicable EU-wide) where Oracle's attempts to prevent resale of physical copies of their software was ruled null and void.

I believe essentially the same principles apply in the US as well.

Answer 3

If so, any links to a template or boilerplate doc we could use?

There's no such template/boilerplate because such a document is not needed. Unless the owner of the image specifically assigns rights to you, under the laws of most countries, including pretty much all countries who belong to either the Berne Convention or the Universal Copyright Convention (or both), you have no right to reproduce or sell copies of a print (or electronic file) of an image. You only have purchased a single use of the image.

When you purchase a print or an electronic copy of a photo, you are paying for that single copy of the image, not for all of the rights to the intellectual property contained within that image. It's the same as when you buy a DVD or BluRay movie - you are not buying distribution rights or rental rights to the movie, you are only buying the rights to watch that one copy in the privacy of your home.

In general, you can sell the single copy you purchased to someone else. This is particularly the case with physical media.

Some purchase agreements, particularly those sometimes used when downloading electronic files containing intellectual property (images, movies, computer software, etc.), will specify that you are not purchasing anything except the user key that gives you the right to use the file without actually owning it. How well that will hold up depends on the jurisdiction in which you are located. In any case, if your sell the electronic file to someone else it must not remain in your possession as well, or that is considered unauthorized reproduction.

Answer 4

In theory she should sell her works under limited license. If you want to see how an EULA is you can check the EULA (end user licensing agreement) Getty Images is using in your country. I refer you to the EULA for Getty Images in the UK.

But if the pictures are really valuable, I would hire a good and well known intellectual & copyright lawfirm to properly analyze the circumstances under which are going to be made the sales and make a custom contract for those circumstances.

In any case, I want to advise you that prosecuting copyright or licensing infringement is really costly and many times impossible in countries that aren’t signatories of the multilateral treaties on the matter.

And unles you suffer a large damages, a great loss in your net income, and are able to prove it in court, most, doesn’t pay pursuing them which would require hiring an lawfirm to handle the cease and desist communications and to represent you in the infringement lawsuit.

PS As with software or any other intangible asset it should be sold under an EULA. What happens it’s that many people don’t realize when they are agreeing to the EULA by just opening package, because the EULA is included within the package and states that by opening it you adhere to them or in the case of downloads (streaming) you have already agreed to it when you signed-in to the store and agreed to their more encompassing Terms & Conditions.