From our “news to me” files, I recently discovered that CARCC (the Canadian Artists Representation Copyright Collective) provides suggested “reproduction fees” for various uses of visual artworks (which would include things like paintings and video art). CARCC is a collective which administers various rights on behalf of the artists who join: exhibition, reproduction, reprography, telecommunication and retransmission.
CARCC has a variety of fee schedules which it makes available on its website (and including a consolidated .pdf document of all the fee schedules). Of particular interest to production counsel are Schedules A.2-A.4 (which cover non-commercial reproduction) and Schedules B.2-B.3 (which cover commercial reproduction). The distinction between the categories is somewhat ambiguous, as Schedule A.2.1, which is nominally for “non-commercial” uses, certainly seems to contemplate what I would think of as “commercial” uses (for example, using a painting in the background of a scene for a film), while Schedule B.2 seems to contemplate only uses in actual advertising (e.g., in an advertisement for a consumer good), as distinct from a filmed production which is intended for commercial exploitation (e.g., a feature-length scripted comedy film).
Regardless, the Schedules are informative and could be useful when determining and negotiating license fees. As an example, from Schedule A.2.1.1, we can see that reproduction of a single fixed image in the background of a scene of a “cinematographic work” (i.e., what non-lawyers would call a “movie”) with international distribution would command a license fee of $970 (that is, the basic license fee of $194 (applicable when 1-4 works are being licensed for background use), multiplied by 2 because we want international coverage, and multiplied by 2.5 because we want the maximum 25-year license term). The schedules do not appear to contemplate licenses in perpetuity, which could be problematic for most production counsel, but presumably that’s open to negotiation (or at least discussion). As well, there seems to be some ambiguity (or flexibility, depending on your point of view) built into the schedules – the notes to Schedule A.2.1.1 state that “for major productions, the fee may be tripled”, but no hints are provided as to what constitutes a “major productions”, nor who decides if the fee “may” be tripled in particular circumstances.
While the CARCC fee schedules only apply to licenses being granted by CARCC, and that would only occur where a particular artist is a CARCC member (or “affiliate”), the fee schedules are worth considering even in non-CARCC situations, as they can function as a sort of “industry standard” metric.
