Signed Contract_Assignment/Transfer of Copyright with Shelby Fry for Five Flags Center Mural Copyrig hted
J uly 6, 2020
City of Dubuque Consent Items # 19.
City Council Meeting
ITEM TITLE: Signed Contract(s)
SUM MARY: Assignment of Vendor Services for Grass Mowing Services from JJ
Block Landscaping to Brune Enterprises; Lease Agreement with Owen
Lindstrom/Dubuque by Carriage for Commercial Street Building;
Agreement with Shelby Fry for Moral Rights Mural Artwork.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description Type
Brune Enterprises Assignment of Vendor Services Supporting Documentation
Dubuque by Carriage/Lindstrom Lease Supporting Documentation
Shelby Fry Mural Artwork Agreement Supporting Documentation
ASSIGNMENT AND TRANSFER OF COPYRIGHT AND WAIVER OF MORAL
RIGHTS IN ARTWORK
This Assignment and Transfer of Co�Syright and Waiver of Moral Rights in Artwork
(the "AgreemenY') is entered on the� day of June, 2020 (the "Effective Date"),
by and between the Artist, Shelby Fry, with a principal address of 655 Chestnut Street,
#3, Dubuque, IA 52001 (the "ARTIST") and the City of Dubuque, lowa located at 50 W
13th Street, Dubuque, IA 52001 (the "CITY") (collectively, known as the "PARTIES"), with
respect to this original visual artwork described below as Solidarity.
RECITALS:
WHEREAS the PARTIES agree to the following definitions as used herein and
throughout this Agreement:
Artist(s): Refers to any artist(s) who contributes to the creation, design, development
and/or installation of the Preliminary Works and/or Final Artwork. For the avoidance of
doubt the term "Artist(s)" refers to any person, adult, youth, student or minor. �
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 with the aid of a machine or device.
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 any of the following:
a. to reproduce and make copies of the work;
b. to prepare derivative works based on the work;
c. to sell or distribute copies of the work to the public or other transfer of
ownership, or by rental, lease, or lending;
d. to display the work publicly;
e. to perform the work publicly; and
f. to enforce the work against unauthorized use.
Final Artwork: Means the original visual artwork described below as Solidarity,
developed, designed, and/or created by ARTIST, following consultation with local
organizations including, but not limited to the NAACP and the City of Dubuque,
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represented by the City Manager, on City property. Photographs of the Final Artwork are
hereby incorporated by reference and made part of this Agreement, and attached as
Exhibit A to this Agreement, upon completion of installation.
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 appropriate
renditions of the visual art, and other alternate or preliminary designs and documents
developed by ARTIST and which form part of or all the Final Artwork.
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.
WHEREAS the PARTIES agree to the description of the Final Artwork (will be
attached as Exhibit A, upon completion) as described by ARTIST as follows:
Description of the Final Artwork:
Title: SOLIDARITY
Size: 28' X 105'
Category of Work: (Works of Visual Art): MURAL
Project: SOLIDARITY, see attached Exhibits;
Installation Location: EAST WALL OF FIVE FLAGS ARENA ALONG MAIN
STREET, shown on Exhibit C.
Year Final Artwork Created: 2020
Artist Name:SHELBY FRY
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Artist's Signature:
NOW THEREFORE, in consideration of the mutual promises, covenants,
warranties, mutual obligations and terms and conditions hereinafter set forth; and other
good and valuable consideration received by ARTIST from the City, the receipt and
sufficiency of which is hereby acknowledged by ARTIST, the PARTIES hereby agree as
follows:
1 . Assignment and Transfer of Copyright Ownership in the Final Artwork:
� a. ARTIST hereby conveys, transfers and irrevocably assigns to CITY all of
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ARTIST's Copyright Ownership rights, title and interests in the Final Artwork,
including, but not limited to, ARTIST's rights in:
i. ARTIST's entire and exclusive Copyrights under federal and state
copyright laws, in the United States and all jurisdictions outside the United
States;
ii. ARTIST'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 ARTIST by additional
Artist(s) in (i)-(iv) associated and subsisting in the Final Artwork (if any).
CITY shall be the sole and exclusive copyright owner of ARTIST's Copyright
Ownership rights in the Final Artwork and of ARTIST's Copyrights in the
Final Artwork from the Effective Date forward. CITY 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 ARTIST, nor shall there
be any reversion of those rights to ARTIST in the future, other than those
rights specifically licensed and described in section 5 (a) below, in this
Agreement;
b. ARTIST hereby conveys, transfers and irrevocably assigns to CITY all of
ARTIST's ownership interests in the Final Artwork in itstangible form, in which the
copyrightable Final Artwork is embodied;
c. ARTIST hereby conveys, transfers and irrevocably assigns to CITY,
ARTIST's full-term and renewal term Copyright Ownership rights, title and interests
in the Final Artwork under federal, state and common copyright laws;
d. ARTIST agrees that 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 ARTIST's exclusive rights,
interests, title and ownership under the copyright laws, subject to the license CITY
grants to ARTIST in section 5 below.
2. Waiver of Statutory Moral Rights by ARTIST:
a. ARTIST hereby acknowledges the existence of Artist's federal and state
statutory moral rights and protections under VARA, as those rights and protections
are more particularly described in 17 U.S.C. section 106A(a)VARA, and knowingly
executes this waiver on the following terms:
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i. Scope: This waiver applies to the following visual work: Final
Artwork, described in this Agreement and attached as Exhibit A, entitled,
Solidarity.
ii. Uses Covered: This waiver applies to all applicable uses, with
respect to the Final Artwork enumerated in section 2(a)(i) above, reserved
to an owner of a lawfully copyrighted work under the copyright laws,
including, but not limited to, the display of the Final Artwork publicly and to
all applications in which either the attribution right, the integrity right, or the
personal moral right of ARTIST may be implicated.
iii. Waiver: With respect to the Final Artwork enumerated in section
2(a)(i) above and the uses enumerated in section 2(a)(ii) above, ARTIST,
hereby expressly and forever waives any and all moral rights and
protections arising under 17 U.S.C. section 106A(a) and t h e S t a t e o f
I o w a C o d e , 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. section
106A(a) and the State of lowa Code, or any other type of moral rights or
droit moral in the Final Artwork.
3. Covenant to Cooperate by ARTIST: ARTIST does hereby covenant and agree
to cooperate with CITY whereby, CITY may enjoy fully the exclusive Copyright
Ownership rights, title, and interests herein conveyed. Such cooperation shall include:
a. Prompt execution of all papers (prepared at the expense of CITY)which are
deemed necessary or desirable by CITY to perfect its rights, title, and interests
herein conveyed; and
b. Prompt execution of all petitions, oaths, specifications, declarations, or
other papers (prepared at the expense of CITY) which are deemed necessary by
CITY for obtaining copyright registration with the United States Copyright Office
covering said Final Artwork.
4. Relationship of the PARTIES: The PARTIES agree that ARTIST is an
independent contractor who volunteered to create, develop and install the Final Artwork
and that no agency, partnership, joint venture, employee-employer relationship is
intended or created by this Agreement. All rights, interests and title granted to CITY are
contractual in nature and expressly defined by this Agreement.
5. Grant to ARTIST: CITY grants to ARTIST, pursuant to this Agreement, a
perpetual, exclusive, worldwide, irrevocable, sub-licensable, royalty-free license to use
and exploit the Final Artwork, including in its Preliminary Works. These rights include the
following:
a. Right to Reproduce: ARTIST may reproduce the Final Artwork and
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derivatives thereof in copies or phonorecords, without CITY's prior consent;
b. Right to Prepare Derivatives: ARTIST may prepare derivatives based
upon the Final Artwork (in which the underlying work is recast, transformed, altered
or adapted), without CITY's prior consent;
c. Right of Public Distribution: ARTIST may publish, sell and distribute
copies of the Final Artwork and derivatives thereof, publicly, without CITY's prior
consent (including the right to exploit copies of the Final Artwork and derivatives
thereof);
d. Right of Public Performance: ARTIST may publicly perForm the Final
Artwork and derivatives thereof in any manner applicable, without CITY's prior
consent;
e. Right of Public Display: ARTIST may publicly display the Final Artwork and
derivatives thereof, including but not limited to, the display of the Final Artwork and
derivatives thereof in ARTIST's portfolio,websites, galleries,design periodicals and
other media or exhibits. ARTIST 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 CITY's prior consent;
f. Accreditation of Final Work: CITY shall make reasonable efforts to credit
ARTIST as the original creator of the Final Artwork in connection with any uses by
CITY;
e. Reprography Right: ARTIST may make reprographic reproductions
database storage or retrieval, as well as 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
f. Enforcement of Intellectual Property Rights: ARTIST will have the
exclusive right (but not the obligation) and CITY grants ARTIST the exclusive
authority, to protect and enforce CITY'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 ARTIST.
6. Copyright Designation: All displays and/or publications of the Final Artwork shall
bear CITY'S copyright designation notice as suggested by the U.S. Copyright Office.
7. Term:
a. City agrees to a term for the Final Artwork through at least June 30, 2021.
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The decision to maintain the Final Artwork on City property beyond June 30, 2021
is in the sole discretion of the City.
b. In the event the mural is damaged, deteriorates, or is vandalized between
the Effective Date and June 30, 2021 CITY agrees to notify ARTIST and provide
ARTIST an opportunity to repair or restore the mural. In the event the mural cannot
be restores or repaired by ARTIST, CITY reserves the right to remove the mural.
c. ARTIST acknowledges the CITY has plans for a possible remodel and/or
demolition and reconstruction of the Five Flags Arena which could result in
demolition or destruction of the mural.
d. 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 CITY, its I
officers, successors, assigns, and/or other legal representatives, and shall be
binding upon said ARTIST.
8. Effective Date: 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 "Term," above.
9. Warranty: ARTIST warrants and represents that:
a. The Final Artwork is an original visual work of authorship of ARTIST;
b. The ARTIST as creative originator is the sole proprietor of the Final Artwork;
c. The Final Artwork does not infringe any existing Copyrights;
d. The Final Artwork is not regarded by ARTIST as Site-Specific Art and
therefore ARTIST will not seek legal protection for the Final Artwork as visual art
that derives its meaning from the surrounding environment;
f. The ARTIST has not entered into any assignments, transfers, licenses,
contracts or mutual understandings in conflict with the terms and conditions of this
Agreement; and
g. There are no claims currently pending or threatened, nor does ARTIST have
any reason to believe that any claims will be brought or threatened in the future,
against ARTIST's rights, ownership, title or interests in the Final Artwork.
10. Indemnification: ARTIST agrees to indemnify and hold harmless CITY 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
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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 CITY).
11. Delivery: ARTIST must provide CITY with this Agreement, properly executed,
signed, dated, and notarized and attach the required Exhibits, necessary to give effect to
this Agreement. ARTIST shall provide to CITY the "original wet signature" of this
Agreement with the attached above-mentioned Exhibits. ARTIST will receive a copy of
the fully executed Agreement. i
12. General Terms:
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a. Applicabie Law: This Agreement must be read and construed according to �
the faws of the State of lowa and the PARTIES submit to the jurisdiction of the State �
of lowa.
b. Amendments: This Agreement may not be varied, modified, renewed, or I',
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. j
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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, i
statute, ordinance or regulation, it is to be severed so that the validity and
enforceability of the remaining provisions are not affected.
13. Further Agreements: 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
said subject matter that is 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 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 : CITY:
�� ���������
Shelby Michael C. Van Milligen, City Manager
Date: � � �Z � 2U Date: June 22, 2020
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On this a. day of i�..d`-�- , 2020, Shelby Fry, personally appeared before me,_
�S�Q. , and proved to me with satisfactory evidence to be the person
whose rne i 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 authorized capacity and that by his 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 FFICIAL SEAL:
_.._
� . 4*� °'�'"� VRENNa HBti�lalE�
�'�Y jantm�aalan Num ar 3813
, �„� .,y Ca�nm.Ezp, tI
SIGNATURE A PUBLIC
1�,�
On this ; � day o(� �'��; 2020, Michael C. Van Milligen, personally appeared
before me- 1CU��-�.l(��, (C.'�� - 1 � ' �nd proved to me with satisfactory evidence to be
the person whose name is subscri ed 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 authorized capacity and that by his signature on the Assignment and I
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: �
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SI TURE OF NOTARY PUBLIC
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LIST OF EXHIBITS
EXHIBIT A PHOTOGRAPHS OF FINAL ARTWORK
EXHIBIT B PRELIMINARY ARTWORK
EXHIBIT C INSTALLATION LOCATION
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EXHIBIT A
PHOTOGRAPHS OF FINAL ARTWORK
Exhibit Intentionally Blank until Mural is complete. Photographs of completed mural will
be inserted following completion.
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EXHIBIT B
PRELIMINARY ARTWORK
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EXHIBIT C
INSTALLATION LOCATION
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