ARTISTIC LICENSE AGREEMENT
This Artistic License Agreement (the “Agreement”) is entered into as of today by and between Schieren Holdings, a Limited Liability Company d.b.a. Local Band Gear (the “Company”), and a[n] [individual/corporation/partnership/etc.] (“The Original Artist”, the “Licensor”, the “Requester” hereinafter referred to in this document as the “Artist”) with a principal place of [residence][business] at [address] (the “Company,” and together with the “Artist”, the “Parties”).
WHEREAS, the Artist owns all rights in and to the Artwork and retains all rights to the Artwork that are not transferred herein, and retains all common law copyrights and all federal copyrights that have been, or that may be granted by the Library of Congress; and
WHEREAS, the Artist has the exclusive right to license others to produce, copy, make, or sell the Artwork;
WHEREAS, the Company wants to obtain, and the Artist has agreed to grant, a license authorizing the use of the Artwork [in the preparation of one or more Collective Works and/or Derivative Works (as defined below)] by the Company subject to the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
- GRANT OF LICENSE. Effective as of the Effective Date and subject to the terms and conditions of this Agreement, the Artist hereby grants to the Company, and the Company hereby accepts, a non-exclusive, non-transferable license to exercise the rights in the Artwork, in any and all media (including but not limited to electronic, print, video, and any other technology now known or that may be developed in the future), as follows:
- to publish the Artwork, to reproduce the Artwork, to incorporate the Artwork into one or more Collective Works (as defined below), and to reproduce the Artwork as incorporated in the Collective Works. “Collective Works” shall mean any work, including periodical issues, anthologies, or encyclopedias, in which the entire unmodified Artwork is assembled with other contributions, each constituting separate and independent works in themselves, into a collective whole;
- to create and reproduce Derivative Works. “Derivative Works” shall mean any work based on the Artwork, or on the Artwork and other preexisting works, including motion picture versions, art reproductions, condensations, or any other form in which the Artwork may be recast, transformed, or adapted; provided, however, that a work constituting a Collective Work shall not be considered a Derivative Work under this Agreement;
- to distribute copies of, display publicly, or use in any advertising the Artwork (including as incorporated in Collective Works); and
- to distribute copies of, display publicly, perform publicly, or use in any advertising any Derivative Works.
- The Company shall make no other use of the Artwork.
- NO ASSIGNMENT OR TRANSFER. The Artist hereby acknowledges and agrees that the rights granted to the Artist by and obtained by the Artist as a result of or in connection with this Agreement are license rights only and that nothing contained in this Agreement constitutes or shall be construed to be an assignment or exclusive license of any or all of the Company’s rights in the Artwork. The Artist retains ownership of the copyright in the Artwork, and all rights not expressly granted in this Agreement.
- RESTRICTIONS. The license granted in Section 1 above is expressly made subject to and limited by the following restrictions:
- Limited Use. These permissions granted to the Company under this Agreement apply only to the uses and purposes stated herein and the Company may distribute, publicly display, or use in any advertising the Artwork only under the terms of this Agreement. The Company may not sublicense the Artwork. Any use that is inconsistent with the limited license provided hereunder shall be a violation of the the Artist’s copyright and subject to copyright law.
- No Modification. The Artist shall not modify, copy, distribute, transmit, display, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell, or otherwise convey the Artwork obtained from the Licensor in any way not specifically granted in Section 1 above without the prior written consent of the Licensor.
- Right of Review. The Licensor reserves the right to review any Collective Work or Derivative Work before publication if the Artwork exceeds 50% of its total content.
- Limitations on Transfer. The permission hereby granted is not transferable, not exclusive, and applies only to Artwork controlled by the Company and not to any artwork reproduced or incorporated by the artist in such Artwork.
- CREDIT AND SAMPLES.
- Credit. The Requester agrees to acknowledge fully in every copy of the Artwork distributed, publicly displayed, or used in any advertising, either on the copyright page or as a footnote on the page on which the Artwork begins, or, if in a periodical, on the first page in which it appears, the credit line as indicated below. If the copyright and acknowledgment notices are not printed as specified herein, all permissions granted by this Agreement are canceled without further notice.
- Credit of Artist in Collective or Derivative Work. If the Company distributes, publicly displays, or uses in advertising the Artwork, any Derivative Work, or any Collective Work, The Company must keep intact all copyright notices and appropriate credits for the Artwork and give The Original Artist (The Artist/Licensor) credit reasonable to the medium or means The Company is utilizing by conveying the name (or pseudonym if applicable) of The Original Artist (The Artist/Licensor) (if supplied); the title of the Artwork (if supplied); to the extent reasonably practicable, copyright notice or licensing information for the Artwork; and, in the case of a Derivative Work, a credit identifying the use of the Artwork in the Derivative Work (e.g., “reproduction of Artwork by original artist”). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, such credit will at a minimum appear where any other comparable artist credit appears and, in a manner, at least as prominent as such other comparable artist credit.
- Copy of Work. On the Licensor’s request, the Artist shall provide the Licensor with a copy of each Collective Work and/or Derivative Work incorporating in any way the Artwork to allow the Licensor to confirm compliance with the grant of permission given under this Agreement.
- Copies of Advertisements. The Artist will submit to the Licensor two (2) copies of any advertising material that will accompany the distribution of the Artwork, or any Collective Work or Derivative Work.
- Copy of Critical Work. If the Artwork will be reproduced in a Collective Work or Derivative Work as a subject of criticism, considered herein, band merchandise, a copy of the text addressing the Artwork must accompany this Agreement.
- [On or before the Effective Date][On or before the date of publication by the Artist of the Artwork, any Collective Work, or any Derivative Work], the Company shall pay a one-time fee of $1.00 in consideration for the rights of the Artist in and to the Artwork granted under this Agreement.
- MAINTENANCE OF RECORDS AND AUDIT RIGHTS.
- Books and Records. The Company will keep accurate books of account and records covering all transactions relating to or arising out of this Agreement. The Company will permit the Licensor and its nominees, employees, accountants, agents, and representatives to (i) have reasonable access to and inspect such books and records during normal business hours on reasonable notice, and (ii) to conduct an examination of all such books and records. The Company will maintain in good order and condition all such books and records for a period of two (2) years after the termination of this Agreement pursuant to Section 13 or, in the event of a dispute between the Parties, until such dispute is resolved, whichever date is latest. Receipt or acceptance by the Licensor of any sums paid by the Company hereunder will not preclude the Licensor from exercising its rights hereunder.
- DELIVERY OF ARTWORK. The Artist will provide an electronic version of the Artwork from which the Company can produce the Artwork for the purposes described herein.
- OWNERSHIP AND USE OF ARTWORK.
- Ownership of Artwork. The Company hereby acknowledges that the Licensor is the owner of the Artwork and of all associated federal registrations and pending registrations, and the Company shall do nothing inconsistent with such ownership. The Company further agrees that it will not claim ownership rights to the Artwork, or any derivative, compilation, sequel or series, or related work owned by or used by the Licensor. The Artist agrees that nothing in this Agreement shall give the Artist any right, title, or interest in the Artwork other than the right to use the same in accordance with this Agreement.
- Validity of Registrations. The Artist hereby admits the validity of all copyrights for the Artwork and all associated registrations and acknowledges that any and all rights that might be acquired by the Company because of its use of the Artwork shall inure to the sole benefit of the Licensor; provided, however, that this subsection (b) shall not entitle the Licensor to all or any portion of the profits or revenues from the Artist’s permitted uses hereunder, except for the fees described in Section 6 above.
- Limitation on Artist’s Actions. The Company agrees that it will not do anything inconsistent with the Licensor’s ownership of the Artwork, and will not claim adversely to the Licensor, or assist any third party in attempting to claim adversely to the Licensor, with regards to such ownership. The Company further agrees that it will not challenge the Licensor’s title to the Artwork, oppose any registration or re-registrations thereof, or challenge the validity of this Agreement or the grants provided herein or hereunder.
- REPRESENTATIONS AND WARRANTIES.
- The Parties each represent and warrant as follows:
- Each Party has full power, authority, and right to perform its obligations under the Agreement.
- This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
- Entering into this Agreement will not violate the charter or bylaws of either Party or any Artwork contract to which that Party is also a party.
- The Artist hereby represents and warrants as follows:
- It is the sole owner of all right, title, and interest in and to the Artwork;
- It has the right to grant permission for use of the Artwork as specified in this Agreement;
- the Artwork is original, is not in the public domain, and does not contain anything that is obscene;
- It has not assigned, transferred, exclusively licensed, pledged, or otherwise encumbered the Artwork or agreed to do so;
- It is not aware of any violation, infringement, or misappropriation of any third party’s rights or any claims of rights (including existing intellectual property rights, rights of privacy, or any other rights) by the Artwork;
- It is not aware of any third-party consents, assignments, or licenses that are necessary to perform under this Agreement; and
- It was not acting within the scope of employment of any third party when conceiving, creating, or otherwise performing any activity with respect to the Artwork purportedly licensed in Section 1.
- Recordation of Agreement. The Artist will, as soon as is reasonably possible following a request from the Company, provide the Company with a complete copy of all documentation (in any format) relating to the Artwork for the Company’s own use, to meet record-keeping requirements of the Company, or to allow the Company to exercise its rights granted pursuant to this Agreement. The Artist will also, on request:
- execute and deliver, or cause to be executed and delivered, to the Company any additional papers, including any separate licenses of the Artwork, reasonably necessary to record the license in the United States [and throughout the world]; and
- generally, do all other lawful acts reasonable and necessary to record the Agreement in the United States [and throughout the world].
- Artist Assistance in Maintaining Work. The Company shall on request give to the Artist or its authorized representatives any information as to its use of the Artwork, any Collective Work, or any Derivative Work that the Artist may reasonably require and will render any (non-monetary) assistance reasonably required by the Artist in maintaining the Artwork or any registrations thereof.
- INDEMNIFICATION. The Artist will indemnify the Company against and hold it harmless from:
- any claim by a third party that the Artwork or its use or reproduction infringes or misappropriates any copyright or other intellectual property;
- any claim by a third party that this Agreement conflicts with, violates, or breaches any contract, assignment, license, sublicense, security interest, encumbrance, or other obligation to which the Artist is a party or of which it has knowledge;
- any claim relating to any past, present, or future use, licensing, sublicensing, distribution, marketing, disclosure, or commercialization of the Artwork by the Company; and
- any litigation, arbitration, judgments, awards, attorneys’ fees, liabilities, settlements, damages, losses, and expenses relating to or arising from (a), (b), or (c) above.
In the event that the Artwork infringes on any United States copyright of a third party not affiliated with the Company, the Artist shall indemnify the Company against such claim; provided that all of the following are true:
- the Company promptly gives notice of any such claim to the Artist;
- the Artist controls the defense and settlement of such claim;
- the Company fully cooperates with the Artist in connection with its defense and settlement of such claim;
- the Company stops all sales, distribution, and public use of or relating to the infringing Artwork, including as necessary any Collective Works or Derivative Works, if requested by the Artist.
If the Company is enjoined from further use of any infringing Artwork or if the Artist stops using any of the Artwork (including as necessary any Collective Works or Derivative Works) pursuant to the Company’s request (as described in (d) above), the Artist shall, at its own expense and option:
- obtain the right for the Licensee to continue to use the infringing Artwork;
- modify the infringing Artwork to eliminate such infringement (if practicable); or
- refund the amount paid under this Agreement for the infringing Artwork to the Licensee, on such terms and conditions as the Parties may thereafter agree.
The Company shall have no other obligations or liability if infringement occurs, and shall have no other obligation of indemnification or to defend or hold harmless relating to infringement. The Company shall not be liable for any costs or expenses incurred without its prior written authorization and shall have no obligation of indemnification or
- any liability whatsoever if the infringement is based on
- any altered, changed, or modified form of the Artwork not made by the Artist or the laws of any country other than the United States of America or its states.
- Termination Procedures. The Agreement will terminate immediately, without notice, if:
- before publication, the Artist has not complied with the provisions of this Agreement;
- the Company attempts to assign, sublicense, transfer, or otherwise convey, without obtaining the Licensor’s prior written consent, any of the rights granted to the Artist by or in connection with this Agreement;
- the Company uses the Artwork in a manner not expressly permitted by this Agreement;
- no Collective Work, Derivative Work, or reproduction of Artwork is published within one (1) year of the Effective Date, unless extended by written permission of the Licensor;
- the copyright and acknowledgment notices are not printed as specified in Section 4 of this Agreement; or
- Effect of Termination. All rights granted by this Agreement including, without limitation, the Company’s right to use the Artwork, shall end on termination of this Agreement. On termination of this Agreement, the Company agrees [as soon as is commercial feasible] to promptly discontinue all use of the reproduced Artwork, any Collective Work, or any Derivative Work and to refrain from further reproduction, publishing, and distributing of such reproduced Artwork, Collective Work, or Derivative Work. Notwithstanding the foregoing, the Company shall have the right to fill existing orders and sell off existing copies of the reproduced Artwork, Collective Work, or Derivative Work then in stock; provided, however, the sell-off period shall not exceed three (3) months from the date of termination [; provided further, however, that any such sales of reprinted Artwork, Collective Work, or Derivative Work shall constitute Gross Sales]. The Artist shall have the right to verify the existence and validity of the existing orders and existing copies of the reproduced Artwork, Collective Work, or Derivative Work then in stock on reasonable notice to the Artist.
- SUCCESSORS AND ASSIGNS. All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
- NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
- NO AGENCY RELATIONSHIP. This Agreement creates a Company-Artist relationship between the Parties. Nothing in this Agreement shall be construed to establish a joint venture, agency, or partnership relationship between the Parties.
- NOTICE. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, by mail, or email (registered or certified mail, postage prepaid, return receipt requested) to the respective Party. Text communication does not constitute proper notice.
- GOVERNING LAW. This Agreement shall be governed by the laws of the state of New York. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
- COUNTERPARTS/ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
- SEVERABILITY. Whenever possible, each provision of this Agreement, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
- ENTIRE AGREEMENT. This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
- HEADINGS. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.