Important: This discussion focuses on copyright for custom illustration, and DOES NOT go into detail about contracts and how companies frequently use contractual language to steal intellectual property rights (copyright) from illustrators** (Yes, the word “steal” is purposeful.) This discussion also DOES NOT apply to being retained for work by a company like Marvel or Disney who already own the copyright and trademark for their characters.
As we plunge headlong into another year of hopes, aspirations, and goals as professionals, I’d like to address a single issue that I’ve dealt with more than any other as an illustrator (independent contractor) over the course of my career. The issue speaks to a larger problem of client expectations that far too many “professional” illustrators have helped perpetuate that have undermined our profession so thoroughly they have become industry standard.
The issue is “ownership” of “artwork”, legally referred to as “copyright” of “intellectual property”.
What is “commissioned” (art)work?
Commissioned work refers to any original artwork that a client pays an illustrator to create.
The expectation
Clients typically assume they own the copyright to commissioned art because they paid for it.
Incorrect—The illustrator owns the copyright. Period.
According to federal law, the illustrator owns and retains the copyright to the artwork the moment a drawing implement touches a drawing surface. The only way a client can own the copyright to the artwork that an illustrator produces is if the illustrator agrees to transfer copyright for his intellectual property to the client and, in order for this transfer to be legally binding, two mandatory steps must be taken:
The copyright transfer needs to be specified in writing.
The document MUST include the signatures of both parties.
Illustrators are not selling their artwork to the client, they are selling the right to exploit an instance of the art for a specific purpose. There are three types of rights (usage) licenses: “exclusive”, “sole”, and “non-exclusive”. Each rights license can be customized per project requirements and renegotiated after a term of use expires.
Exclusive rights give the licensee, and only the licensee, the right to use the artwork for a specific type of use (private, commercial) and purpose (website, marketing materials, t-shirts) and duration (typically 6 months to 12 months). The licensor cannot exploit the artwork while an exclusive license is in force.
Sole rights exclude all potential sales to third parties BUT gives the licensor the right to exploit the IP as long as the use does not conflict with the original agreement.
Non-Exclusive rights permit the licensee to use the artwork for a specific type, purpose, and duration BUT allow the licensor the right to sell the artwork to third parties or exploit it for personal or business use.
I find it very difficult to believe that anyone who has worked in advertising, design, web design, web development, or marketing for any length of time does not understand how media companies such as Getty Images or all font foundries charge for their user licenses. The process for purchasing an illustration is identical to purchasing a photograph—Professional photographers sell licensing rights to use instances of their photos (they are not selling the RAW image) with specific restrictions placed on how, where, and how long the instance can be used. Similarly, when a client pays for an illustration, they are purchasing a license to use an instance of the artwork in a specific media, for a specific period of time, and sometimes, in a specific region or market.
Unless it’s been negotiated, the client is not given blanket rights to use the art however they want for perpetuity, nor does the client have any right to claim ownership thereby preventing the illustrator from reproducing the art or even selling the same commissioned art to another customer.
Use a contract to set expectations
Illustrators are almost always paid a flat-fee to create a custom piece of art to fulfill a particular need. Clients frequently assume they can use the art for other profit-making purposes, that same magazine or mural artwork suddenly starts appearing on products, posters, t-shirts, stickers, various promotional tchotchke’s, or in advertisements.
The illustrator should be getting paid a separate negotiated fee or royalty for every additional usage of the artwork above and beyond the purpose of the original commission as if it had been commissioned for that purpose to begin with—This is precisely how photographers sell licensing rights to their images.
I have never had a client contact me about a potential illustration project and said, “we want to have a piece of artwork created that will represent our business everywhere—we want to put it on our website, business card, collateral, and merchandise the s*** out of it.” Raise your hand if you know why clients never ask for broad usage rights at the time of the initial inquiry?
This is why a contract is important: It is used to define the parameters for how a client can use your art.
While we all skip this step on occasion, needless to say, you should always use a contract even when you don’t think it’s necessary because sooner or later it will bite you in the ass. When a written contract is not in place, it is highly advisable to adhere to the basic terms of your standard contract anyway as a courtesy to your client, which means you should have a standard contract in your tool kit.
My standard contract states that I own the copyright [to the artwork] and that transfer of copyright is available to be purchased for a separate fee. It also describes a standard six month window during which I won’t reproduce the art.
Always remember that contracts are negotiable. If a client wants to extend the window for their use of your art, negotiate with them, and adjust your pricing accordingly.
One thing is certain: Using your own contract makes you look more professional.
Should an illustrator ask for permission to use art they created for a client?
Illustrators have every right to exploit an image that was created for a client as long as it does not infringe, tarnish, diminish, or demean the original agreement, artwork, or client, but it depends on the type of license agreement you signed with your client. Did you agree to an exclusive license agreement? If so, you do not have any right to reproduce the image until the terms of the agreement expire. If a non-exclusive or sole agreement is still in force and there is potential for infringement, yes, professional courtesy would dictate that the illustrator notify their client of his/her intentions and ask for permission to use the art. However, the illustrator is under no obligation or courtesy to request permission to reproduce the image if the agreed upon terms of use are not being infringed/violated or the agreement has expired because the illustrator owns the art.
Why is protecting intellectual property so important for illustrators?
Your intellectual property or “copyright” is the single most important asset you own as an illustrator (artist).
Think about it this way:
Imagine, for a moment, that your intellectual property is a plot of land. You have a ten acre piece of real estate that you can rent, subdivide, or sell however you want. You decide to rent five acres of your plot to a single person and charge them a premium to make sure that no one else, including you, can use that piece of land for one year (exclusive). You rent another two acres to another client for three years but reserve your right to put up a billboard (sole). The remaining three acres are rented to various people for various purposes but you establish boundaries for how everyone, including you, can use the land (non-exclusive). That single ten acre plot affords you multiple revenue streams over multiple years.
If you actually owned a piece of real estate, would you just give it away? No, of course you wouldn’t, because land is valuable.
Your art = real estate.
Illustration is a business
A typical job cycle looks like this: You are commissioned to create custom art for a company that is updating their brand and wishes to incorporate illustration on their website. You negotiate an exclusive agreement that allows them to use the art on their website for a specified period of time. Once the duration of the agreement has lapsed, you have the right to renegotiate use of the art with that same client or to allow the agreement to expire and repurpose the art to find alternate sources of revenue that may help you earn additional income. Maybe you license the art to another buyer, maybe you create limited-edition prints, a pillow, or a t-shirt using the design and sell it on your online store, or maybe you create stock imagery and sell the art on an online marketplace, or maybe you do nothing with it. You own the art, it’s your choice.
For argument’s sake, say your client decides not to use the art you created or stops using it after their promotion ends because they determine it wasn’t effective. If you gave up your IP rights, you don’t have the right to exploit the image because you don’t own it any longer. Artwork doesn’t lose its commercial value simply because a client is no longer using it—this is the whole point of licensing your work, it’s still valuable.
In business terms, intellectual property equates to “revenue streams”.
You always have the option to offer your clients an opportunity to “buy out” the rights to the art, which transfers copyright ownership to the client. The additional fee you charge should equal 100% to 200% of the total project cost—You’re charging them for potential revenue that you will lose. Prime real estate isn’t cheap.
With copyright in hand, the client can legally commercialize [your] artwork in any way they choose from the moment they take delivery of the art and don’t have to pay you an additional dime no matter how many times they exploit the image for profit, nor are they required to acknowledge that you created the art. Why would you give a client the freedom to commercialize your art for free?
Are you beginning to understand why giving away your copyright is incredibly foolish?
Illustrators who give away their copyright because “it’s just easier that way” are literally throwing away potential income and the consequences of this action do not end with the individual illustrator, their decision also undermines every other professional illustrator.
lllustration is a business, NOT a giveaway. Making a decision that hurts your bottom line because it’s “just easier” doesn’t make you easier to work with, it teaches potential clients that you can be manipulated.
Are there times when it is ok to include transfers of copyright in your work agreement?
Ask yourself two questions: 1) Is this project worth agreeing to a transfer of rights? and 2) Do the terms of this agreement benefit me?
Are the contractual terms equitable or are they heavily weighted in favor of the client? For example, if you can sign a long-term retainer with a client, agreeing to a work-for-hire job may be in your best interest, but you still need to carefully consider what you are giving up and make sure that you have a clause inserted in the contract that allows you claim authorship of your work and use it for marketing purposes (eg on your website.) Be aware that very few promises of “future work” ever come to fruition. “We’ll have lots of work for you” is the single most common sales pitch you will hear and, in the vast majority of cases, it’s an empty promise with a single purpose: To convince you to agree to odious terms.
Conclusion
There are tens and tens of thousands of illustrators around the world prostrating themselves for pennies on the dollar just to get work and/or selling their services on predatory platforms that feed off their lack of confidence and experience like Fiverr, Upwork, and Freelancer. There are also no shortage of companies and buyers who will take full advantage of illustrators under the guise of “protecting their brand” and hide work-for-hire (or similar) language in their contracts and NDA’s that steals an illustrator’s intellectual property rights the moment you affix your signature to a document. This unfortunate reality will be incredibly difficult to change due to entrenched expectations and the need for illustrators to earn a living from their work.
Make no mistake, illustrators created this problem and they are the only people who can rectify it.
Only when illustrators and artists decide to conduct themselves as professionals and begin protecting their intellectual property rights as a feature of their business, instead of acting like needy creatives who are grateful that someone hired them for a job, will illustrators be able to cement our value as creative problem solvers and reset expectations with our clients.
What we do isn’t easy and our work has real, tangible value to you and your clients. Why else do you think companies decide to hire an illustrator? As the idiom goes, “A picture is worth a thousand words … or dollars … or new customers.”
Fellow illustrators, your clients don’t give away their intellectual property for free, why are you?
Again, illustration is a business, not a favor.
Advice:
Use your own contract, if possible.
ALWAYS read legal documents from your client (contracts and NDAs). Never assume a client has your best interests at heart.
Never be afraid to negotiate.
Never be afraid to walk away.
Always put your best interests first.
Never sell out, it’s not worth it … Even if you are just getting started. The worst time to compromise your integrity is when you are at your lowest, all it does is set the stage for your future at the lowest possible bar.
Red Flags:
A client who refuses to negotiate.
A client who demands “full IP rights”.
**A client who insists on using their “standard” contract—Read it very carefully because you will frequently find language that strips you of your intellectual property rights in the “ownership” section. If you sign an NDA or a contract that includes work-for-hire (or similar) language, you are automatically assigning copyright ownership to your client. Remember: In order for copyright to be legally transferred, it requires a written document AND your signature.
TIPS:
If you leave here with nothing else, please understand that whether or not you choose to do a job at a reduced rate or pro bono (free) because you can't pass up the opportunity, YOU STILL OWN THE COPYRIGHT. Use opportunities like these as a means to negotiate terms favorable to you, as well as things like “complete creative control” as well as potential avenues for merchandising.
A good rule of thumb: Low budget = Fewer options for client.
Negotiation is your best friend—You will learn everything you need to know about a potential client during contract negotiations.
Most importantly, don’t be a dick—Conduct yourself with dignity and professionalism no matter what happens. Remember, you made the decision to accept or decline a job.
adDendum: “But, but, but”
No, I’m NOT in a position to decline projects. I’m not famous, every project I decline or negotiation that fails hurts me financially … in the short term. And yes, I’ve lost many projects and many tens of thousands of dollars because I refuse to sign contracts with egregious work-for-hire clauses. That's the price of integrity and I won't sacrifice my business interests for a one-time paycheck and a sales pitch disguised as promise.
Disclaimer
I am NOT a lawyer and you should not consider any of this information as legal advice. Please contact a lawyer who specializes in intellectual property, copyright, or trademark law if you have questions or concerns that require expert legal advice.