Fee Schedule Introduction & Guidelines 2010

Table of Contents

Introduction to the Fee Schedule

CARFAC

CARCC

Contact Information

Agreement between CARFAC-RAAV, CAMDO, and CMA on fees

CARCC General Guidelines and Requirements

Introduction to the Fee Schedule

Since 1968 and approximately every two years, CARFAC has issued its exhibition fee schedule. These schedules were developed from rates established by artists Jack Chambers and Tony Urquhart in 1968. They were updated through negotiation and usage, and reflect increases in the cost of living. All fees are considered minimum payments for the use of the copyrights and/or the professional services of visual/media artists.

The inclusion of the Exhibition Right in the Copyright Act is unique to Canadian law. It became part of the Act in 1988, after much lobbying on the part of CARFAC and other artists’ organizations. The Exhibition Right applies to the exhibition of works of visual art not presented for sale or hire, provided the works were made after June 7, 1988 (the day the Act was reformed).Like all other forms of copying, transmission, or presentation, the permission of the rights holder, usually the creator, is required in Canada for the exhibition of works of art. This includes works that are owned by parties other than artists themselves; therefore works in permanent or private collections are subject to the law if no other written agreement has been made. CARFAC maintains that copyright is an important source of income for artists, and that fees must be charged when permission is granted to exhibit a work. This Fee Schedule recommends minimum levels of fees (or royalties) considered by CARFAC and its membership to be fair payment for the various uses of works of visual art.

CARFAC

CARFAC is an artist-run organization founded in 1968 by artists for artists.  It is the federally certified representative organization of professional visual and media artists in Canada . It is composed of CARFAC National, and its regional organizations. CARFAC works closely with RAAV (Le Regroupement des artistes en arts visuals du Québec), its counterpart in Quebec. CARFAC is obligated to represent the interests of Canadian visual and media artists and to establish standards and fee scales in this sector.  CARFAC’s founding principle and continued concern is that artists, like professionals in other fields, be paid fairly for their creative output and services.

CARCC

CARCC, Canadian Artists Representation Copyright Collective Inc., was founded by CARFAC in 1990 to assist artists in administering their copyrights.  CARCC is a logical extension of CARFAC’s commitment to the payment of fees to artists for the use of their copyrights. It negotiates terms of usage and payment offers, and issues licences that allow the legal use of its affiliates’ works.  Affiliation with CARCC is separate from membership in CARFAC.  CARFAC provides its members with information about CARCC, and it publishes this fee schedule.  Users of copyrights associated with CARCC affiliates must obtain licences for such use. 

Agreement between CARFAC-RAAV,
CAMDO, and CMA on exhibition fees

Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC) and le Regroupement des artistes en arts visuels (RAAV) met with the Canadian Art Museum Directors’ Organization (CAMDO) and the Canadian Museums Association (CMA) to discuss a fair level of payment for exhibition fees. The meetings began in 2004, when CARFAC released a new formula for the CARFAC Minimum Recommended Fee Schedule.  The discussions focused primarily on fees related to temporary exhibitions - royalties that are paid to artists by museums and other institutions which present art mainly for the pleasure and edification of the public and not for purposes of sale or hire.  At the end of 2006, the meetings came to an impasse, yet all parties hoped to resolve their issues and find solutions in order to build a stronger visual arts community.  As such, CARFAC-RAAV, CAMDO, and CMA jointly agreed to undertake a mediation process in order to work towards establishing a minimum fee schedule agreeable to both parties.  In order to improve the situation of the visual arts in Canada , it was agreed that it is in the interest of all parties to work together on a solution. 

On November 19 and 20, 2007, representatives from CARFAC and RAAV met with CMA and CAMDO to negotiate a new agreement with a retired justice of the Supreme Court of Ontario as mediator.  Subsequently, the agreement was formally approved by the national boards of all organizations involved. The announcement of this agreement was made at the opening of the Visual Arts Summit, where over 450 artists, dealers, collectors and museum officials were present on November 25th, 2007.

The new fee schedule went into effect on January 1, 2008 for a 5-year term ending December 31, 2012.  All fees included in the agreement will be subject to an annual increase of 3%.  There was agreement on the determining categories reflecting the size of the exhibiting institution’s operating budget: operating budgets under $500,000, operational budgets over$500,000, International I, and International II.  Other factors include the scope and nature of the exhibition, its duration, and the number of participants.

The fees indicated in the agreement are recommended minimums, and as such, artists are free to negotiate up from these minimums. 

Due to ongoing negotiations between CARFAC and RAAV and the National Gallery of Canada under Status of the Artist law, fees for this institution are being negotiated outside this agreement.

The agreement includes solo and group exhibitions, both touring and non-touring.  The four organizations agreed to form a joint committee that will continue to meet to negotiate fees for such items as permanent collection exhibitions; performance, film and video fees; exhibitionism other venues; creation of a work in public and so on.  Reproduction fees, Advertising and Commercial Fees, and Fees for Professional Services will also be discussed.

We recommend that galleries, artist-run centres, and other institutions exhibiting and publishing artworks continue to pay CARFAC-RAAV fees for these uses.
The parties also agreed to pursue the establishment of an Exhibition Right Fund, similar to the Public Lending Right Fund which provides compensation to authors of books used in public libraries.  The joint committee will advocate for the proposed Exhibition Right Fund, as well as develop templates for standardized contracts for exhibition, acquisition and other transactions between gallery and artist.  It is hoped that a discussion of mutual interests will move the visual arts forward. 

The agreement was officially approved by CARFAC-RAAV, CAMDO and the CMA. However, there are other exhibiting institutions that were not present. We are currently in discussions with the Artist-Run Centres and Collectives Conference (ARCCC).  In the interim, we recommend that artist-run centres pay the new fees, with an understanding that it could take time to make an adjustment where the new fees represent an increase.

CARCC General Guidelines and Requirements

CARCC uses this Fee Schedule in negotiating licences for uses of its affiliates’ copyrights. The guidelines are included here for the information of CARCC affiliates and users of their copyrights, and they may also be of use to non-affiliated artists and users who wish to inform themselves of the principles surrounding copyright use.

• Licence to use the copyright of a CARCC affiliate
  In accordance with the principles of the Canadian Copyright Law, all public exhibition and all reproduction (whether in whole or in part) of a work created by an artist affiliated with CARCC must be authorized in writing by CARCC.  Such written authorization is a licence issued by CARCC.  All unauthorized (unlicensed) uses are in contravention of the law.
   
  Licences do not transfer ownership of a work, nor do they transfer copyright.  Licences define the limits of what a user may do with a work of art.  CARCC makes every effort to negotiate non-exclusive licences, meaning that the artist (and CARCC) retains all rights outside those granted by the licence.

• Transfer of ownership of a work does not mean a transfer of copyright
  When a work of art is purchased, or acquired by gift, the new owner is not the owner of copyright in the work, unless there is a signed agreement that transfers copyright from the creator to the new owner. Owners of works of art who do not hold copyright must negotiate uses such as reproductions or exhibitions with the artist or CARCC.

• Minimum fees
  All fees for copyright use listed in the CARFAC Minimum Fee Schedule are considered minimums. An artist may request a higher fee, or accept a higher fee if it is offered.  CARCC uses the Fee Schedule in its negotiation of copyright fees for its affiliates,  and these uses are in turn used as a basis for determining changes or refinements to the Fee Schedule which may be required.  Other factors considered in determining fees include cost of living statistics, affiliates’ and users’ input, the experience of other collectives, and negotiation with user associations such as CAMDO or CMA. 

·         Administration fees
CARCC is fully financed by the administration fees it collects.  For exhibition licences, the administration fee is not included in the fees listed. It is charged to the using institutions in addition to the fees listed - $ 25for galleries in Category 1 (smaller non-profit cultural centres) or for licences with fees less than $500; the fee is $100 for all others.

For reproduction licences, the administration fee is 20% of the fees listed and is included in the fees listed, with a few exceptions, which are noted.  CARCC affiliates using this Fee Schedule should note that to calculate the fee they will received from licensing, one should divide the given amount by 1.2.  For others using this Fee Schedule – artists negotiating their own licences should consider including the administrative portion of the fee in what they charge a user. to cover the time and costs they incur in negotiating their licences.  Users negotiating licences with artists should consider removing the administrative portion of the fee as they are incurring their own licensing-related costs.

·         Accreditation
Crediting an artist for the use of a work is a requirement included as a moral right, the right of paternity, in the Copyright Act.  All uses of any work by any artist must be credited in some form, unless the artist has waived the right, in writing.

CARCC licences require that each reproduction or exhibition of a work by a CARCC affiliate be accompanied by a notice containing the following information:

• Artist name,
• title of work,
• year of creation © CARCC,
• year licence issued

Such accreditation must appear in the immediate proximity of the reproduction and/or exhibition of the work or, inappropriate, in the index of illustrations in a book or catalogue indicating the page on which the reproduction occurs.  Failure to include the information in an integral and legible manner may result in a fine of 200% of the original fee for use, without prejudice to the artist in pursuing legal action.

• Definition of copyright fees (royalties)
  Copyright fees (also called royalties) are listed in the CARFAC Minimum Fee Schedule and apply to the reproduction, exhibition, or presentation of works.  The Copyright Act does not prescribe what copyright is worth – it defines what uses are subject to copyright, that is, where permission of the copyright holder is required.  By implication, the holder of copyright may charge a fee or royalty for a use.  The CARFAC Minimum Fee Schedule 2010 provides recommended minimum fees for a wide variety of uses.  For exhibitions where works created after June 7, 1988 are not presented for sale or hire, the fees are determined by the length of the exhibition, its scale, and the operating budget or nature of the exhibiting institution, and some other factors.  For reproductions, the fees are determined by applying the scale, factoring in variables like the type of support, size of print run, duration of licence, territory of distribution, and so on, as required.  The Artists’ Professional Fees listed in Section 4 are not copyright fees; rather, they are recommended compensation for work done in association with an artistic project such as an exhibition.

• Fee reductions for quantity
  When a reduction of fees is based on the “number of works” used, the number may refer to the number of works by CARCC affiliates included in the licence.  By agreement, “number of works” may apply to the number of works by one artist if several artists are involved.

·         Royalties proportional to sales
Royalties paid for the use of an artist’s copyright can be in a form proportional to sales.  Participation in proceeds from sales will be defined in particular contracts between editor and artist.  Participation proportional to sales may be applied to publications such as the following:

• Monographs devoted mainly to one artist
• Editions of cards, posters, calendars or other objects bearing reproductions
• Editions of sculptures, prints, tapestries
• Alteration of a representation of a work
  CARCC licences require that the user obtain special authorization, prior to the issuance of a licence, for any alteration of a work as represented (changes of colour, proportions, cropping, over-printing of text, and so on).  Any alteration permitted, should the user request it, is subject to approval by the artist prior to final production. This requirement refers to a moral right, the right of integrity, outlined in the Copyright Act.  Moral rights rest with the artist unless a written waiver is in play.

• Promotion of an exhibition or an event dedicated to the presentation of a work of visual art
  For exhibitions where CARFAC-level exhibition copyright fees have been paid to CARCC, a special rate is allowed for reproductions directly promoting the exhibition.  The fee of $25 per work per support regardless of print run and size applies to the following:  invitation, internet site, e-invitations, not-for-sale catalogues, brochures or folders, postings, publicity in journals or periodicals.  When three promotional items are produced bearing reproductions of one artist’s work for the same exhibition, the third use may be granted free of charge. The exception here is use in catalogues that are offered for sale; in this instance, reproductions in such catalogues are charged as listed.

• Promotion by sales venues
  When works are exhibited solely for the purpose of sale or hire, the party exhibiting the work is not subject to payment of exhibition copyright fees as set by CARFAC-RAAV and CARCC.  However, reproductions related to promotion of such exhibitions are subject to copyright.

• Penalty for unauthorized use
  When works are exhibited or reproduced without the appropriate copyright use authorization by CARCC (a licence), the user will be invoiced retroactively by CARCC for all fees due plus a penalty of $50 or 30%, whichever is greater.

• Payment
  Invoices issued by CARCC for licences are payable within 30 days of receipt.  If an authorized use does not take place, a refund can be issued if CARCC receives written notification within 30 days of the signature of the licence.  For any refund, CARCC reserves the right to retain administration fees.

• Proof of Print Run
  CARCC authorization for reproduction is usually for a specific print run.  CARCC has the right to demand and receive proof of the print run (such as a copy of the print invoice).

• Duration of authorization
  The user has up to two years for reproduction and one year for exhibition from the date of authorization to carry out the authorized use.  At the end of this period a new request for licensing must be addressed to CARCC.

• Fee schedule in force and annual increases
  The Exhibition Fees listed in Section 1 are voted on annually by CARFAC members – any changes to these fees are generally published in January of the year following the vote.  All fees listed here are in force until December 31, 2010.  Given the CARFAC/RAAV/CAMDO/CMA agreement to raise the exhibition fees by 3 % annually, we have decided that all fees will be raised annually by the same 3%, instead of biannually as was the former practice.  Given the necessity of making adjustments from time to time, CARFAC/CARCC reserves the right to make changes to the Fee Schedule at any time. All the amounts shown in the schedule are in Canadian dollars and do not include GST.

• Advertising use (commercial or promotional)
  Use is classified as advertising when the work is used to promote a service or product other than the work itself, the artist, or an exhibition including the work.  For example, advertising use occurs when a work is used to promote a museum or gallery.  Items - such as calendars, mugs, agendas, t-shirts, brochures - promoting the institution or company (bearing the name of such) are classified as advertising whether or not they are offered for sale.

• Exhibition promotion
  Regardless of the above, exhibition promotional items (invitations, brochures, etc.) will be classified as advertising if no exhibition copyright fees have been paid to CARCC within the framework of the exhibition project.

• Not-for-profit cultural organizations' fees
  The fee schedule recognizes differences in scale of the various institutions it serves.  Small museums, exhibition centres, artist-run centres, cultural publications, and so on, benefit from these categories of the fee schedule.

• Fair Dealing
  The Copyright Act does not define the concept of Fair Dealing, which means that infringement does not occur when a work is copied for certain limited purposes.  Courts would look carefully at cases involving disputes over Fair Dealing to determine whether infringement has occurred. Fair Dealing includes copying for private study or research, for purposes of criticism, review or news coverage, or the limited use of small portions of a work (sometimes called incidental uses).  In all cases the work must be fully credited as to the source and the name of the creator