Exhibit_3_Caltrans_Copyright_Assignment.pdf

ASSIGNMENT AND TRANSFER OF COPYRIGHT AND

WAIVER OF MORAL RIGHTS IN ARTWORK

This Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork (the “Agreement”) is entered on the [ ] day of [ ], 20[ ] (the “Effective Date”), by and between the Artist, [INSERT NAME OF ARTIST HERE], with his/her principal address at [INSERT ADDRESS OF ARTIST HERE] (the “ASSIGNOR”) and the California Department of Transportation at 1120 N Street, Sacramento, CA 95814 (the “ASSIGNEE”) (collectively, known as the “PARTIES”), with respect to this original visual artwork described below as the [INSERT NAME OF ARTWORK HERE].

RECITALS:

WHEREAS the PARTIES agree to the following definitions as used herein and throughout this Agreement:

1. Copyrights: Means a form of protection provided, as defined and enforceable under the U.S. Copyright Act of 1976, to authors of original works of authorship.

The original works of authorship include all categories of artistic work protectable under the copyright laws, including but not limited to, the intangible property rights in pictorial, graphic, architectural, and sculptural works, fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated either directly or aided by a machine or device.

2. Copyright Ownership: Means the owner of all Copyright interests in the work, as defined and enforced under the U.S. Copyright Act of 1976, to whom the law grants specific and exclusive rights to do and authorize the following: 1) to reproduce and make copies of the work; 2) to prepare derivative works based on the work; 3) to sell or distribute copies of the work to the public or other transfer of ownership, or by rental, lease, or lending; 4) to display the work publicly; 5) to perform the work publicly; and 6) to enforce the work against unauthorized use.

3. Local Agency Agreement: Means the agreement entered into between

ASSIGNOR, [INSERT NAME OF ARTIST HERE] and the [INSERT THE NAME OF SPONSORING LOCAL AGENCY HERE] (hereinafter, “Local Agency”) pertaining to, but not limited to, the design, installation, operation, maintenance, removal of the transportation art, and incorporating ASSIGNOR’s executed and notarized Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork by ASSIGNOR as part of the Local Agency Agreement. The signed and executed Local Agency Agreement is incorporated by reference and made part of this Agreement and attached as Exhibit A to this Agreement.

nguyentam Text Box

EXHIBIT 3

ASSIGNMENT AND TRANSFER OF COPYRIGHT

AND WAIVER OF MORAL RIGHTS IN ARTWORK

4. Final Artwork: Means the original visual artwork described below as [INSERT NAME OF ARTWORK HERE], developed, designed, and/or created by ASSIGNOR which form the final Material Object (as defined below) of the work commissioned exclusively for the Project (as defined below), and as detailed in the Project description, provided by ASSIGNOR and the Local Agency and approved by ASSIGNEE through the Transportation Art and Community Identification Proposal application process (as defined below).

ASSIGNOR acknowledges that the Final Artwork (as described below) includes Preliminary Works (as defined below) and the Material Object (as defined below) which are incorporated and made part of the final representation of the Final Artwork. All documentation pertaining to Final Artwork is incorporated by reference and made part of this Agreement and attached as Exhibit B to this Agreement.

5. Material Object: Means the tangible visual Final Artwork created, designed, constructed, and installed on ASSIGNEE’s right of way by ASSIGNOR, the Local Agency, the Local Agency’s contractor, or by a third-party acting on behalf of the Local Agency under the Local Agency Agreement and the Transportation Art and Community Identification Proposal. Photographs of the Material Object are incorporated by reference and made part of this Agreement, and attached as Exhibit C to this Agreement, upon completion of installation of the Material Object.

6. VARA: Means the Visual Artists Rights Act of 1990, which confers upon authors of works of visual art, several types of attribution and integrity rights, including but not limited to, the right to prevent any intentional distortion, mutilation, or other modifications to his/her visual artwork, and to prevent the destruction of a visual artwork of recognized stature.

7. CAPA: Means the California Art Preservation Act of 1979, which confers certain rights to artists of works of fine art (original paintings, sculptures, drawings or original works of art in glass, of recognized artistic quality), including, but not limited to, the right to prohibit the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art by any person or entity who possesses or owns the fine art.

8. Project: Means the Transportation Art and Community Identification Proposal project approved through the Transportation Art and Community Identification Proposal application process (as defined below), including but not limited to, the name, content, size, proposed installation location, required attachments, maps, design specifications, structural plans, installation plans, traffic management plans, reproducible drawings, sketches, photographs, or other renditions of the visual art to be installed. The above-mentioned documentation of the Project is incorporated by reference and made part of this Agreement and attached as Exhibit D to this Agreement.

9. Preliminary Works: Means all documentation developed specifically to prepare the Final Artwork, as set forth in Exhibit B. The Preliminary Works include, but are not limited to, concepts, photographs, sketches, photo simulations, drawings, other renditions of the visual art, and other alternate or preliminary designs and documents developed by ASSIGNOR and which form part of or all the Final Artwork. The Preliminary Works are incorporated by reference and made part of this Agreement, and attached as Exhibit E.

10. Transportation Art and Community Identification Proposal (“TA”): Means the transportation art and community identification proposal application used by the sponsoring agency to submit its’ transportation art and/or community identification proposal project for review, consideration, processing and approval by ASSIGNEE including but not limited to, ASSIGNEE’s Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork, the administrative procedures, required attachments, design specifications, structural plans, installation plans, traffic management plans, resolutions, artist’s background, maintenance and removal plans, reproducible drawings, sketches, designs, photographs, photo simulations and other renditions of the transportation art and/or community identification proposal project, before the issuance of encroachment permits for the installation of the transportation art or the community identification project on ASSIGNEE’s right of way. The approved TA is incorporated by reference and made part of this Agreement, and attached as Exhibit F.

11. Artist(s): Refers to any artist(s) who contributes to the creation, design, development and/or installation of the Preliminary Works, Final Artwork and/or the Material Object. To avoid doubt the term “Artist(s)” refers to any person, adult, youth, student or minor.

WHEREAS the PARTIES agree to the description of the Final Artwork (attached as Exhibit B) as described by ASSIGNOR:

1. Description of the Final Artwork:

a) Title: [INSERT NAME OF ARTWORK HERE]

b) Size: [INSERT SIZE OF ARTWORK HERE]

c) Category of Work: (Works of Visual Art) - [INSERT TYPE OF

VISUAL ARTWORK (MURAL, SCULPTURE, PICTORIAL,

GRAPHIC, ETC.)]

d) Project: [INSERT NAME OF PROJECT HERE] and attached as Exhibit D;

e) Installation Location: [INSERT DETAILED LOCATION HERE, INCLUDING POST MILE AND STATE HWY]

f) Year Final Artwork Created: [INSERT YEAR ART WAS CREATED HERE]

g) Artist (ASSIGNOR): [INSERT NAME OF ARTIST HERE]

h) Artist’s (ASSIGNOR) Signature: [ARTIST’S SIGNATURE REQUIRED HERE]

NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, mutual obligations and terms set forth; and other good and valuable consideration received by ASSIGNOR from the Local Agency, the receipt and sufficiency of which is acknowledged by ASSIGNOR, the PARTIES hereby agree as follows:

1. Assignment and Transfer of Copyright Ownership in the Final Artwork:

a) ASSIGNOR conveys, transfers and irrevocably assigns to ASSIGNEE all of

ASSIGNOR’s Copyright Ownership rights, title and interests in the Final Artwork, including, but not limited to, ASSIGNOR’s rights in: (i) ASSIGNOR’s entire and exclusive Copyrights under federal and state copyright laws, in the United States and all jurisdictions outside the United States; (ii) ASSIGNOR’s exclusive rights, title, and interests under common law Copyrights; (iii) any and all other privileges and rights in the Final Artwork attributed to a copyright owner; and (iv) all other intellectual property rights assigned to ASSIGNOR by additional Artist(s) in (i)-(iv) associated and subsisting in the Final Artwork (if any). ASSIGNEE shall be the sole and exclusive copyright owner of ASSIGNOR’s Copyright Ownership rights in the Final Artwork and of ASSIGNOR’s Copyrights in the Final Artwork from the Effective Date forward. ASSIGNEE shall have the sole and exclusive right to secure registration of the Copyrights in the Final Artwork internationally. No Copyrights Ownership rights in the Final Artwork and/or Copyrights in the Final Artwork, shall be retained by ASSIGNOR, nor shall there be any reversion of those rights to ASSIGNOR in the future, other than those rights specifically licensed and described in section 5 (a) below, in this Agreement;

b) ASSIGNOR conveys, transfers and irrevocably assigns to ASSIGNEE all of ASSIGNOR’s ownership interests in the Material Object in its tangible form, in which the copyrightable Final Artwork is embodied. ASSIGNOR acknowledges that the Material Object is the Final Artwork in its tangible form as defined above in section 5 of the definitions in this Agreement;

c) ASSIGNOR conveys, transfers and irrevocably assigns to ASSIGNEE ASSIGNOR’s full-term and renewal term Copyright Ownership rights, title and interests in the Final Artwork under federal, state and common copyright laws;

d) ASSIGNOR agrees this assignment and transfer of Copyright Ownership rights, interests and title subsisting in the Final Artwork, will remain in effect for the entire duration of such Copyright and will include all of ASSIGNOR’s exclusive rights, interests, title and ownership under the copyright laws, subject to the license ASSIGNEE grants to ASSIGNOR in section 5 (a) below.

2. Waiver of Statutory Moral Rights by ASSIGNOR:

a) ASSIGNOR acknowledges the existence of his or her federal and state statutory moral rights and protections under VARA and CAPA, as those rights and protections are more particularly described in 17 U.S.C.A. §§106A and 113 VARA, and in the California Civil Code §§987 to 989, 997 CAPA, and knowingly executes and waives his or her moral rights and protections to the specific visual artwork described below:

i. Scope: This waiver applies to the following visual work: Final Artwork, described in this Agreement and attached as Exhibit B, entitled, [INSERT

TITLE OF THE ARTWORK HERE].

ii. Uses Covered: This waiver applies to all exclusive rights and uses to the Final Artwork reserved to an copyright owner of a lawfully copyrighted work under state and federal copyright laws, including, but not limited to, works of visual art under 17 U.S.C. §§ 101 and 106A.

In addition to all uses and applications of the Final Artwork in which either the attribution right, the integrity right, or the personal moral right of ASSIGNOR may be implicated.

iii. Waiver: regarding the Final Artwork enumerated in section 2 (a)(i) above and the uses enumerated in section 2 (a)(ii) above, ASSIGNOR, expressly and forever waives any and all moral rights and protections arising under 17 U.S.C.A §§106A and 113; California Civil Code §§987 to 989, 997 and any other rights arising under U.S. federal or state laws or under the laws of any other country that conveys rights and protections of the same nature as those conveyed under 17 U.S.C.A. §§106A and California Civil Code §§987 to 989, 997, or any other type of moral rights or droit moral in the Final Artwork.

3. Covenant to Cooperate by ASSIGNOR:

a) ASSIGNOR does covenant and agree to cooperate with ASSIGNEE whereby, ASSIGNEE may enjoy fully the exclusive Copyright Ownership rights, title, and interests herein conveyed. Such cooperation shall include:

i. Prompt execution of all papers (prepared at the expense of

ASSIGNEE) which are deemed necessary or desirable by ASSIGNEE to perfect its rights, title, and interests herein conveyed; and

ii. Prompt execution of all petitions, oaths, specifications, declarations, or other papers (prepared at the expense of ASSIGNEE) which are deemed necessary by ASSIGNEE for obtaining copyright registration with the United States Copyright Office covering said Final Artwork.

4. Relationship of the PARTIES:

a) The PARTIES agree that ASSIGNEE is solely a third-party beneficiary and that ASSIGNEE is not a party to nor legally obligated or bound by the terms and conditions contained in the Local Agency Agreement described above in section 3 of the definitions section. The PARTIES agree that ASSIGNOR is an independent contractor commissioned to create, develop, and install the Final Artwork by the Local Agency and that no agency, partnership, joint venture, employee-employer relationship is intended or created by this Agreement. All rights, interests and title granted to ASSIGNEE are contractual in nature and expressly defined by this Agreement.

5. Grant to ASSIGNOR:

a) ASSIGNEE grants to ASSIGNOR, under this Agreement, a perpetual, exclusive, worldwide, irrevocable, sub-licensable, royalty-free license to use and exploit the Final Artwork, including in its Preliminary Works and final Material Object form. These rights include:

i. Right to Reproduce: ASSIGNOR may reproduce the Final Artwork and derivatives thereof in copies or phonorecords, without ASSIGNEE’s prior consent;

ii. Right to Prepare Derivatives: ASSIGNOR may prepare derivatives based upon the Final Artwork (in which the underlying work is recast, transformed, altered or adapted), without ASSIGNEE’s prior consent;

iii. Right of Public Distribution: ASSIGNOR may publish, sell and distribute copies of the Final Artwork and derivatives thereof, publicly, without ASSIGNEE’s prior consent (including the right to exploit copies of the Final Artwork and derivatives thereof);

iv. Right of Public Performance: ASSIGNOR may publicly perform the Final Artwork and derivatives thereof applicable, without ASSIGNEE’s prior consent;

v. Right of Public Display: ASSIGNOR may publicly display the Final Artwork and derivatives thereof, including but not limited to, the display of the Final Artwork and derivatives thereof in ASSIGNOR’s portfolio, websites, galleries, design periodicals and other media or exhibits. ASSIGNOR may describe, its role in relation to the Project and the services provided to other parties on its website and in other promotional materials, for any purpose, without ASSIGNEE’s prior consent;

vi. Accreditation of Final Work: ASSIGNEE shall make reasonable efforts to credit ASSIGNOR as the original creator of the Final Artwork in connection with any uses by ASSIGNEE;

vii. Reprography Right: ASSIGNOR may make reprographic reproductions database storage or retrieval, and making visually perceivable facsimile copies of previously published material, in each case by any means and using any technology, whether now known or hereafter developed, by photocopying, xerograph, duplicating (from stencil) or similar means, microform (including microfiche), transcription or drawing (including tracing) for an overhead or slide projection; and

viii. Enforcement of Intellectual Property Rights: ASSIGNOR will have the exclusive right (but not the obligation) and ASSIGNEE grants ASSIGNOR the exclusive authority, to protect and enforce ASSIGNEE’s Copyrights in the Final Artwork, including bringing legal proceedings against infringers and issuing notice and take-down requests under the Digital Millennium Copyright Act (DMCA) (each a “Protection Action”), at the sole expense of ASSIGNOR.

6. Copyright Designation:

a) All displays and/or publications of the Final Artwork shall bear ASSIGNEE’s copyright designation notice as suggested by the U.S. Copyright Office.

7. Term:

a) The Copyrights protection term of this irrevocable and exclusive assignment shall be for the full term of the copyrighted work, including its renewal term and any applicable extended renewal term of the Copyrights’ protection.

The terms, covenants, and provisions of this assignment shall inure to the benefit of ASSIGNEE, its officers, successors, assigns, and/or other legal representatives, and shall be binding upon the ASSIGNOR.

8. Effective Date:

a) This Agreement shall be effective as of the day, month and year first written above; upon signing by both PARTIES this Agreement; and upon the signature and placement of the official seal of a certified notary public on this Agreement.

The term of this Agreement shall continue as detailed in section 7 (a) above.

9. Warranty:

a) ASSIGNOR warrants and represents that:

i. The Final Artwork is a work of visual art under 17 U.S.C.A. §101 and an original work of visual art subject to copyright protection under 17 U.S.C.A §102;

ii. The ASSIGNOR as the creative author is the sole proprietor of the Final Artwork;

iii. The Final Artwork infringes no existing Copyrights;

iv. The Final Artwork is not regarded by ASSIGNOR as Site-Specific Art and therefore ASSIGNOR will not seek legal protection for the Final Artwork as visual art that derives its meaning from the surrounding environment;

v. The ASSIGNOR has not entered into any assignments, transfers, licenses, contracts or mutual understandings in conflict with the terms and conditions of this Agreement; and

vi. There are no claims currently pending or threatened, nor does ASSIGNOR have any reason to believe that any claims will be brought or threatened in the future, against ASSIGNOR’s rights, ownership, title or interests in the Final Artwork.

10. Indemnification:

a) ASSIGNOR agrees to indemnify and hold harmless ASSIGNEE against any and all claims, lawsuits or legal actions made in connection with the Final Artwork, including but not limited to, any copyright infringement claims, moral rights violation claims, loss claims, personal and/or real property claims, injury claims, breach of contract claims, inverse condemnation claims, conversion claims, taking of property claims, and/or damage claims (including any related legal costs, attorney fees or expenses properly incurred by ASSIGNEE).

11. Delivery:

a) ASSIGNOR must provide ASSIGNEE with this Agreement, properly executed, signed, dated, and notarized and attach the required Exhibit A (Local Agency Agreement), Exhibit B (Final Artwork), Exhibit C (Material Object), Exhibit D (Project), Exhibit E (Preliminary Works) and Exhibit F (TA Proposal Application), necessary to give effect to this Agreement.

ASSIGNOR shall provide to ASSIGNEE the “original wet signature” of this Agreement with the attached above-mentioned Exhibits. ASSIGNOR will receive a copy of the executed Agreement.

12. General Terms:

(a) Applicable Law: This Agreement must be read and construed according to the laws of the State of California and the PARTIES submit to the jurisdiction of the State of California.

b) Amendments: This Agreement may not be varied, modified, renewed, or revoked, unless agreed to by both PARTIES, made in writing and signed by both PARTIES, by a person in authority to contractually bind and sign on behalf of such party.

c) Severability: If any provision of this Agreement is held by a court to be unlawful, unconscionable, invalid, unenforceable or in conflict with any rule or law, statute, ordinance or regulation, it is to be severed so the validity and enforceability of the remaining provisions are not affected.

13. Further Agreements:

a) This instrument contains the entire and only agreement between the PARTIES and supersedes all pre-existing agreements between them respecting its subject matter. Any representation, promise, or condition in connection with the subject matter not incorporated in this Agreement shall not be binding upon either party.

IN WITNESS WHEREOF, the PARTIES have caused this Agreement to be executed the day, month and year first written above; by the signatures of each PARTY below; and by the signature and official seal of a certified notary public:

ARTIST (ASSIGNOR)

ARTIST (ASSIGNOR) NAME:

[ PRINT ARTIST (ASSIGNOR) NAME HERE]

ARTIST (ASSIGNOR) ADDRESS:

[PRINT ARTIST (ASSIGNOR) ADDRESS HERE]

ARTIST (ASSIGNOR) SIGNATURE:

DATE: [MONTH, DAY, YEAR HERE]

[ PRINT ARTIST (ASSIGNOR) NAME HERE ], personally appeared before me, [ PRINT NAME OF NOTARY HERE ], and proved to me with satisfactory evidence to be the person whose name is subscribed to the above Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork, and acknowledged to me that [he or she] executed the same in [his or her] authorized capacity and that by [his or her] signature on the Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork, did [himself or herself] execute this Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork.

WITNESS MY HAND AND OFFICIAL SEAL:

NOTARY PUBLIC SIGNATURE

CALIFORNIA DEPARTMENT OF TRANSPORTATION (ASSIGNEE)

ASSIGNEE NAME:

ASSIGNEE SIGNATURE:

ASSIGNEE TITLE:

ASSIGNEE ADDRESS:

DATE (MONTH/DAY/YEAR):

APPROVED AS TO LEGAL FORM BY:

MARIA S. SAPIANDANTE, ATTORNEY FOR ASSIGNEE