GUIDELINES REGARDING THE HIRING OF CATALOGUE ESSAYISTS
Adopted by the CAA Board of Directors on October 27, 2002; revised on October 23, 2016.
Particulars of Agreement: Subject Matter and Compensation
When a museum wishes to hire an author to write an essay for a catalogue, a contract or letter of agreement (signed by both the essayist and a representative of the museum) should specify the essay’s subject matter and approximate length, a deadline (or series of deadlines) for the essay’s completion, the fee (normally a flat fee) that will be paid to the essayist, the number of comparative images, and the number of complimentary copies of the catalogue the essayist will receive. The parties may choose to detail their relationship further, such as establishing a payment schedule tied to submission of the essay, or determining the consequences of any delay in delivery (or other failures) by the essayist; the contract could contain percentages by which the agreed-upon fee will be reduced due to such delays or failures. The parties may also wish to clarify whether the agreed-upon fee, or some other fee (a “kill fee” or prorated fee for work accomplished), should be paid if the museum decides not to use the essay.
Right to Modify
Museums or publishers often ask essayists to adapt, or accept adaptations, and to reflect budgetary, design, or printing considerations. In this regard, the contract should address specifically whether the museum or publisher can alter, abridge, or otherwise modify the essay, whether with or without the permission of the essayist. Specifically, the contract should specify whether there would be any separate ownership arrangements regarding the modified text.
The essay may incorporate photographs or other material owned by third parties. The contract should specify the date by which such collateral images will be determined and who—the essayist, museum, or publisher—is responsible for acquiring them, making rights payments, and managing the review of any required page proofs. If the amount of third-party material is likely to be extensive, the contract should specify the extent to which the parties will work together to modify or limit such materials to work within the museum’s or publisher’s budget.
Ownership of copyright in the essay should be expressly addressed in the contract or letter of agreement. Under US copyright law, the author of the essay owns the copyright unless express provision is made in the contract for the essay to be a “work made for hire” (“work-for-hire”) or for all the rights in the essay to be assigned to the museum or publisher.
If the essay is a work-for-hire, or if all rights are assigned to the museum or publisher, the essayist has no rights in the essay except those expressly granted back to him or her by the contract. Museums and publishers frequently ask that essays be works-for-hire to facilitate their adaptation or editing of the essays to meet their needs, as well as to obtain the rights necessary to pursue infringers. If the essay is a work-for-hire or the rights to the essay are assigned to the museum or publisher, then the parties may wish to agree that the essayist retains the right (or receives a license back from the museum or publisher) to reproduce or otherwise make certain uses of the essay (including preparing subsequent works, such as books, based on the essay), in certain media, apart from the catalogue. The contract does not need to specify the museum’s right to reprint the essay apart from the catalogue context.
If the essayist retains ownership rights, then the agreement may specify which rights are granted to the museum or publisher. In this circumstance, museums and publishers will want the right to make changes to the essay (for budgetary or other reasons); it may be appropriate for them to do so in consultation with the author (see RIGHT TO MODIFY). The parties could agree that the contract licenses the museum or publisher the right to first publish the essay, and in which media (hard copy [hardcover and/or paperback] and/or electronic media, in present and future formats, known and unknown) the museum or publisher may exercise such rights. The museum or publisher may be given the right to reprint the essay, in the context of reprinting the entire catalogue, as often as it wishes; the contract may address whether such reprint rights are in specific or all media and whether or not additional fees are to be paid to the author. The parties may specifically wish to address the right of the museum or publisher to reprint the essay apart from the context of the catalogue. If the essayist owns the rights in the essay (i.e., it is not a work-for-hire and/or the ownership rights are not assigned to the museum or publisher), it is not necessary to specify the essayist’s rights to publish elsewhere.
Credit for Guest Essays
The essayist is entitled to receive appropriate credit for his or her contribution to the catalogue. The contract should provide that the name of the essayist will appear on the catalogue’s title page and on the table of contents. In addition, the contract could specify the materials on which additional credit would appear, such as in the press releases for the exhibition. The contract may specify the size of the credit appearing on the pages of the catalogue, or elsewhere, and the parties may agree that the essayist will have the right to review page proofs. Identification of the essayist, including his or her full professional title and university, museum, or other affiliation, should appear following the essay, or elsewhere in the publication in the form of a “Contributors” section, as the parties may agree.
Revised by: Rachael Arauz, independent curator, Boston; Tracy Fitzpatrick, Neuberger Museum of Art, SUNY Purchase; Saadia N. Lawton, College Art Association; and Emily Stamey, Weatherspoon Art Museum, University of North Carolina, Greensboro; chaired by Patricia McDonnell, Wichita Art Museum; with the advice and approval of the 2015 and 2016 Museum Committees.