6 Replies Latest reply: May 21, 2008 1:49 PM by Wade S Zimmerman RSS

    Fellow artists/illustrators... question regarding usage of artwork...

    Talyianna Community Member
      Hi all,
      I KNOW this is not a technical issue but I was wondering if you could help me out or point me in the right direction. A lot of the time when I have issues like these, the best place for me to come to has been this forum because of all the fellow designers out here:)
      I do a lot of freelance and have not had this issue before...

      A friend (a salesperson) is "subcontracting" me to do work for her, for her clients. I invoice her, she pays me and I give the artwork over to her and she in turn bills her clients and hands the artwork over to them, with a small profit.
      The problem is that now she wants to put her own logo on the artwork that I hand over to her. This just does not sound right to me because then it seems as if she has done the artwork, and this is of course untrue.
      I DO understand, that once paid for, all artwork becomes the property of the client (and all rights are handed over) but surely the client cannot then give the false impression that they were the original designer... to me, that just seems very wrong & unfair:(

      This is one of the terms I have on my invoices:
      "Rights specified herein and ownership of all artwork & mechanicals transfer to client upon full payment of all fees and costs."

      Thank you very much in advance for your assistance,
      Christine
        • 1. Re: Fellow artists/illustrators... question regarding usage of artwork...
          JETalmage Community Member
          > I DO understand, that once paid for, all artwork becomes the property of the client (and all rights are handed over)

          > This is one of the terms I have on my invoices:
          "Rights specified herein and ownership of all artwork & mechanicals transfer to client upon full payment of all fees and costs."

          Then you are doing what is called "Work For Hire", which is usually the worst way to do freelance creative work (like illustration). Doing work-for-hire, you have expressly surrendered all rights to the artwork. Your client (the salesperson) has gained full ownership of the work, and she can do what she wants with it, including modifying it and wrecking it and giving you a bad reputation in the process. By putting her mark on it, she is not neccesarily saying she created it from scratch; she is simply claiming it as her product, which it now is. Her company produced it, just as GM produces a truck that has a drivetrain it didn't necessarily design. She is simply not stating who acutally drew the artwork, and evidently there is nothing in your contract to require her to even give you that recognition.

          You have done this to yourself.

          Your client does not pay your overhead. Your client does not pay your insurance or taxes or contribute to your 401K or provide for your vacation or any other customary benefits of full-time employ.

          Yet whenever you do work-for-hire, ownership of the work is equivalent to your having done the work in the full-time employ of the client. The "employer" fully owns the creative work, plain and simple. You have effectively simply "rented yourself" to the client for your time and labor. You do not own the creative work. When a freelance (one with any real talent) does this, he does a disservice to both himself and to the freelance community at large.

          In my opinion, there are only two kinds of projects for which a freelance should do work-for-hire:

          Identity projects: Corporate and product identity marks ( real logos, not the cheezy thrown-together text object with some amateurish LBO attached). A company needs to fully own its identity, including its marks. Such projects should be done with the most excruciating care and professionalism you can muster--and should be charged for accordingly.

          "Gruntwork" and "bread & butter" projects which don't really invlove original creativity. Book typesetting, docuement design (as opposed to illustration), etc.

          Consider:

          You do an illustration for a client, the original purpose being a one-time occurrance in a low-distribution trade magazine. You put your heart and soul in it. You actually create something original. You foolishly do this, though, as work-for-hire. You charge $350.

          Someone at a multinational corporation sees it, likes it, and seeks out who owns it. Your client does. The multinational says "Do you have that in writing?" Your client says, "Sure do," and shows your invoice, with its [stupid] full surrender of rights at the bottom in flashing neon lights. The multinational says "We like it. We'll give you $3500 for it. We want to use it in an ad campaign, some trade shows, on our website, and probably in our annual report." Your client: "Deal."

          What you and every professional freelance illustrator should understand is that professional creative work is not billed merely according to the hours it takes to produce it. Creative work is billed according to its value. Value is determined by (among other things) its use. Obviously, a piece of work done for the multinational's purpose is of higher intrinsic value than even the same piece of work done for one-time spot occurrence in a small time trade magazine. But by doing work-for-hire, you have surrendered all rights to any greater value that piece may someday acquire.

          It really is common sense. Some fool could hire me to sing and record my very best rendition of "Superman" and I could do it in the same number of manhours it would take Barbara Streisand to do it. You can bet your bottom dollar B.S.'s rendition would be of higher value than mine. You can also be assured she wouldn't surrender full usage, ownership, reprint, and distribution rights to the customer.

          I doubt you sing like Barbara Streisand, but you may be a better illustrator than she is.

          Think such nightmares don't happen to "small time" freelancers "just trying to make a living"? Think copyright is just the stuff of multinational corporate boardrooms and courtrooms? Think again.

          JET
          • 2. Re: Fellow artists/illustrators... question regarding usage of artwork...
            Talyianna Community Member
            Jet,
            Thank you so much for replying... and for your detailed lengthy response...VERY much appreciated!
            I also did a lot more research after I wrote this in last night. I am changing that clause to read something like:

            "Rights specified herein, as outlined below, of artwork & mechanicals transfer to client upon full payment of all fees and costs." and then I outline the usage rights below that (e.g. for what project it may be used, etc.)

            I used to set things out this way but then changed it after I had read a book which included forms for graphic artists, etc. I had never felt comfortable about it however and I must have seriously misunderstood it at the time. I had forgotten about that little (VERY VERY important) clause up until yesterday.

            I have some updated books which I looked into late last night and things made a lot more sense. I am now going to revise all of my terms and conditions. I spend a lot of time with the work that I do, I really do put my heart and soul into it ... it means a lot to me and I certainly do not want it misused in any way.

            Thank you for driving all of that home as well!:)

            Christine
            • 3. Re: Fellow artists/illustrators... question regarding usage of artwork...
              Doug Katz Community Member
              Yeah? So? Now I know the stupid way not to do it. How SHOULD it be done by every professional freelance illustrator?
              • 4. Re: Fellow artists/illustrators... question regarding usage of artwork...
                Talyianna Community Member
                Here is an excellent resource with tons of guidelines regarding business ethics:
                AIGA Design Business & Ethics
                and the
                AIGA Guide to Copyright

                Here is some detailed info I extracted from the copyright pdf:

                b Work-for-hire
                Work-for-hire is a highly problematic provision of the copyright law. If a designer provides services as a work-forhire, or if a designer hires a supplier as a work-for-hire, the party executing the work under the work-for-hire status loses all rights, including the right to terminate the rights transferred after the 35-year period provided under copyright law. The workfor- hire status can come into existence in two ways: 1) an employee creating a copyright in the course of the employment; or 2) a freelancer creating a specially ordered or commissioned work, if the work falls into one of several categories defined under copyright law and both parties sign a written contract agreeing to consider the artwork as a work-for-hire.

                For a design firm this can create some problems. For example, since most design firms are businesses, this means that the partners in design firms do not own the copyrights for the work they create. Since most partners are employees of the firm, the firm owns those copyrights, just as it owns the copyrights created by any other employee. If a partner wants rights to what he or she has created, a special contract will be necessary. Also, a salaried employee may request or negotiate a written contractual agreement that allows the employee to retain some copyright ownership. For freelancers, the categories of specially ordered or commissioned works that can be work-for-hire include: a contribution to a collective work, such as a magazine, newspaper, encyclopedia or anthology; a contribution used as part of a motion picture or other audiovisual work; and a supplementary work, which includes pictorial illustrations done to supplement a work by another author, a compilation, an instructional text, test or answer material for a test or work for use in an atlas. Commissioned design rarely falls into a category that can be work-for-hire, as defined under the copyright law. Corporate attorneys often rely on workfor- hire because they lack complete understanding of the tradition of creative rights or experience in defining the limited rights that their employers actually need. On the other hand, some firms may use work-for-hire with the intent of reselling the design in some form. 9

                b Contractual safeguards
                Often the term work-for-hire is loosely used to mean a buyout or the transfer of all rights. It is important to understand that work-for-hire is defined in the copyright law, but neither buyout nor all rights has a universally agreed upon definition. To avoid ambiguity, designers should spell out the rights transferred by type of use, media of use, duration of use, geography of use and any other description that makes clear what the parties intend. Ownership of any physical objects contained in the work should also be clarified, and may have a bearing on whether sales tax has to be charged. Unless generous compensation is given to cover all conceivable future uses, the designer should seek to transfer only limited rights to the client. The clients desire for work-for-hire or all rights is often for the purpose of preventing the clients competitors from using the design or images in the design. The client can be protected against such competitive use by a simple clause in the contract stating: The designer agrees not to license the design or any images contained therein to competitors of the client. This might be accompanied by the clients right of approval over some or any licensing of the design and incorporated images. The designer would then have to include similar restrictions in contracts with suppliers.
                • 5. Re: Fellow artists/illustrators... question regarding usage of artwork...
                  JETalmage Community Member
                  The work is technically "copyrighted" the moment it is created (the moment the photographer presses the shutter, for example), assuming it is not itself an infringement of someone else's copyright (an unauthorized derivative work, for example).

                  So technically, you don't even have to state or claim copyright. Others are supposed to know it's illegal to steal (including "designers" who routinely steal images from web sites and think it's "okay" just because they'll never get caught).

                  Of course, saying nothing about copyright can easily lead to unhappy freelance clients when they assume they are buying more than they really are.

                  But as soon as you start spelling out which rights are transferred, you are also limiting which rights you retain--so it behooves a freelance to be careful. As Christine points out, there are resources and published recommended business practices where you can look all this stuff up.

                  JET
                  • 6. Re: Fellow artists/illustrators... question regarding usage of artwork...
                    Wade S Zimmerman Community Member
                    I have a contract with my clients that they agree that I reserve all rights and maintain possession of all original material and they have to give credit. They agree I am the copyright holder even though the law says i do not need to state this in order for it to be true.

                    I am doing work in France where the law states that architects are protected by copyright in such a way that if their buildings appear in a photograph you have to pay them a fee.
                    In a circumstance like that I have a proposal which states that we share the copyright privileges. Which is what the law says except I as a photographer would have under other circumstances need to pay them a fee if it was used for commercial usage.

                    So the law s very specific there. That means a tourist can take a photograph of the buildings and use them for their personal use but if the publish it they will have to pay a fee I understand there is organization that enforces this world wide and they will take legal action.

                    My client was one of the persons responsible for getting this law created. So this is going to be interesting.