Questions regarding illustration contract
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@xin-li I think you just hit the nail on the head: most illustrators, especially beginning illustrators, are just so happy to have interest from a publisher that they'll sign whatever is in front of them. This normalizes bad contracts and things like exclusive rights. Every veteran illustrator I've ever heard says exclusive rights are not the norm. Yet in some areas of publishing, lower on the ladder, they ARE the norm. They have become the norm because illustrators do not ask for more. I totally get it: it's really hard out there when you're trying to start your career. This means that there are a lot of publishers that have cropped up, especially small publishers, who specifically target illustrators at the beginning of their career to save money. They know they can target these illustrators to get art for a fraction of the price, and all the copyrights.
Thankfully as you move up the totem pole, you start seeing publishers who value the work of illustrators with experience and exceptional quality art/work ethic. Those publishers will go for experienced illustrators, and you do not get to become an experience illustrator unless you've been able to negotiate fair pay and rights. They know those illustrators expect better and they are willing to offer it, at this level of publication.
It's disheartening to hear you say that a top 5 publisher asked you for exclusive rights. But this has me even more convinced that they were just trying to see what they could get away with. They know veteran illustrators will not accept this, so it cannot be a deal breaker for them. Just a nice to have.
Sometimes it's discouraging to hear veteran illustrators give business advice because it can seem so disconnected from what we experience on the ground at the beginning of our career. They say "Don't settle for anything less than $12k, at least 8 months to draw it, and non-exclusive rights". Meanwhile, you're sending thousands of emails, got only 5 offers back, all of them from professional publishers and they're only offering $1k for a 32-page book in 1 month and they want exclusive rights. and you're like "Where do I even find good offers like the ones they say is the bare minimum?".
But do not despair! Knowledge is power, and negotiation is key. They are banking on the fact that we illustrators are so damn happy to be contacted at all that we'll sign anything they put in front of us. Let's not be like that, and stand up for ourselves! We will not be able to change every offer we get, but we can improve some of them and that's always worth trying! And then the more years you've been in the business, the more you attract clients that know you're experienced and won't put up with that. The quality of offers steadily increases over time
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@NessIllustration I know what you mean by advice from experienced illustrators that do not match the reality of beginner illustrators. I was shocked by the first couple of offers I received. I walked away because they were not very interesting for me in terms of the subject, plus the fee is not so good - even though I was advised to take to build up published work history. With the current projects, I was exactly like what you described: damn happy that someone took an interest in my artwork.
Well, despite the contract, I am still damn happy and grateful. I try to not let paperwork get in the way of my happiness of making art. I do not know how much I can negotiate for the next contract, but I promise I will make some noise, giving a counter offer. And I will keep learning.
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@xin-li I know what you mean and I feel the same It's easy for us to accept bad terms sometimes because we truly love what we do and are happy to do it! I try to remember that in order to be able to do it for a long time, while keeping my health and sanity, I do need the money and the good conditions or I will not last long and will have to give it all up. I've accepted my fair share of bad contracts in the beginning and even sometimes to this day, and I cannot bring myself to regret them
I used to be very shy about negotiating because I saw it as aggressive or complainy. But it's really just 2 parties talking, politely, pleasantly, and both want the same thing: to make a great book together. There's nothing really aggressive about saying "I'm not too sure I'm comfortable about the copyrights section, can we talk about it some more?" And the person you're talking to is not paying for this out of their own pocket so most of the time, if they can give you more money or better conditions because you've asked for them, they're actually happy for you! In their mind they're thinking "good for them!"
Also I think you're doing really well! You're navigating this new career with caution and grace, and you're making many less mistakes than I personally did.
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@xin-li said in Questions regarding illustration contract:
All the book contracts I have received has something called "competing work", which basically means this book is the next publication which has my name on, and I can not have other book published before this one (in one contract, it even states not 6 months after). I found this odd, and very restrictive. Is this normal?
If you can please post the exact wording.
I recently negotiated a clause:
"No Competing Work. The Illustrator agrees that during the term of the copyright and any extensions thereof, the Illustrator will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is reasonably likely to injure its sale or the merchandising of the other rights granted herein."To which I responded: "This needs to be reasonably limited. I would agree to 5 years. Right now this says I can't make a similar book about [this topic] for 70 years after I die."
But based on what you wrote, the idea that you have to wait until this publisher actually gets the book on shelves before you can do another book is unreasonable. What if this book gets held up for some reason?
What if it NEVER gets published?
No. I would not agree to this at all.( Short of some heroic, and unlikely, gesture on the part of the publisher) Please encourage your agent to push back against clauses like these that protect the publisher but leave you exposed. -
@NessIllustration That's so funny you mentioned 1K for a 32 page book within a month. I keep getting these offers and I'm starting to think i'm just getting trolled, who can afford to take these terrible offers and on top of that sign over all rights to artwork?
@xin-li I have a one page agreement that I also get clients to sign as well as their contract. It has specifics about the work, when its due and when they sign off sketches they're signed off, terms on the back include if they deviate from the brief or want changes after a specific stage then it's back to discussing extra fee. Also has things like kill fee and when payment is due.
That competing work one is shady, i've not come across that.
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@davidhohn
here is the clause in the current contract I recieved. I think I can understand point (a), but I wonder what is considered "similar to the work". I found point (b) very confusing.
(a) The Illustrator agrees that during the term of this Agreement the Illustrator will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is reasonably likely to injure its sale or the exploitation of the other rights granted herein.
(b) The Work will be the Illustrator’s next published work (whether under the Illustrator’s own name or under a pseudonym, and whether alone or in collaboration with anyone else), and except with the prior written permission of Publisher, the Illustrator will not, prior to publication of the Work, publish or authorize publication of any other work by the Illustrator, whether print or digital, within six (6) months of Publisher’s first publication of the Work. -
@Phil-Cullen thanks for sharing your experience. I feel I have more ground to negociate. I kept getting 1k for 32 page books offer too. So the reality is cruel - we just need to kick back if we can, and when we can.
How did you come up with the idea of making a page about the work you get your client to sign? It sounds so smart. I tried to get the client to provide an extra page to address this when the "please make a new illustration" incident happened (to prevent similar thing happening during the rest of the project), but with no success. I guess things might be very different if I insist in this from the beginning.
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@xin-li This is soooo shady. What right do they have to restrict the work you can do outside of their project, that has nothing to do with them? They better be paying you like $40k or something for the book if they expect you not to work or anything else for 6 months prior of after. How else are you going to eat and keep a roof over your head? This is insane!
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@NessIllustration good to know. :-). My agent told me she asked for a change of this seciton in the contract. But the verison I got was suppose to be "after the change". I hope maybe she sent the wrong version of the file? I will talk to her again later this week to figure out more detail regarding the contract.
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@xin-li Oh yeah, that's a big "no" to both of those! (In my opinion. I am not directing you to say no)
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@xin-li
The Illustration Department has a seminar:
Understanding Contracts in Publishing with Literary Agent, Emily Keyes.
https://illustrationdept.com/classes -
@davidhohn could you elaborate a bit on the No for the seciton (a)? I think I do not quite understand what it means in practicle terms.
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@Mara-Price I am considering it. thanks. I wish there are resources available for beginner illustrators regarding contracts: explaining legal terms in layman language, so I can actually look up.
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these are all very valuable information! I'm eating them up.
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@xin-li I think it means that for the whole term you cannot publish similar work that could compete with this one. The problem here is that the terms are very vague, not allowing "substantially" similar work that could "reasonably" injure their sales. What does substantially mean to them? If it's a book about mermaids, do they mean you cannot publish another book with mermaids in it for the next 10 years? Or do they only mean you cannot trace your work and republish spreads that are 1-1 the same in another book? @davidhohn said that he responded to such a clause "This needs to be reasonably limited". I would probably ask for them to clarify what they mean first, and see if I agree with their definition (in which case I would ask to add the clarification to the contract) or don't agree (in which case I'd ask to restrict this clause).
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Absolutely! When I work with lawers, they always push back on vague terms proposed by the lawers from the other party! Limitation of the clauses is key : in the scope of application and time.
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Thank you so much @NessIllustration and @Julia. There is so much to learn. I will definitely watch out for the competing work clauses from now on.
I was hoping my agent would be able to take care of the contract-related matter but looks like we have a different standard. Would it be helpful to come up with a list of terms which includes terms for rights, competing works, work acceptance I would like to work with, and let the agent check the contract and negotiate based on the terms I listed, instead of having myself to go through every contract? or that is not a viable solution?
I feel like it adds a lot on busy days when a contract is typically 15 - 30 pages and written in a legal language I can barely grasp.
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@xin-li Have a look at this:
https://www.amazon.com/Business-Legal-Forms-Illustrators/dp/1581153643
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@xin-li wrote:
(a) The Illustrator agrees that during the term of this Agreement the Illustrator will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is reasonably likely to injure its sale or the exploitation of the other rights granted herein.
The "term of this Agreement" typically means "as long as the book is in print and protected by copyright" The full timeframe of which would be your life + 70 years (when the book would enter the public domain)
So, for your life + 70 years (after you are dead) you have to ask the publisher if they will allow you to publish a book that is either:
•"substantially similar"
or
• That the publisher feels is likely to damage their ability to sell the book
or
• Somehow makes it hard for the publisher to exploit any of the various other rights you have licensed in other areas of the contractAs was mentioned by @NessIllustration these terms are vague. What is "similar" to one editor, or publisher might be something quite different to another. And staffing a publishing houses change all the time. So an answer in 2020 might be quite different in 2030 depending on who is evaluating "similar".
Speaking from direct experience, you WILL be offered other books that are in some way similar to the last book you did.
I did a fairy book in early 2001. For the next 5 years all I was offered were fairy books. I did a religious book in 2006 immediately offered a number of other religious books. In 2018 I was offered a illustrated bible AND a book about Noah Ark from two different publishers, with both books scheduled to come out at the same time.I was concerned enough about this issue that I had a chat with my editor. She was very nice (my contracts with this publisher don't include clauses like this) but still she did say that she would prefer I didn't do both. I decided to pass on the Noah Ark book.
In 2019 I did a historical picture book biography about a woman , and the last three books I've been offered have all been -- wait for it -- historical picture book biographies about women.
The idea that I might be prevented, or limited in any way (even by a requirement to "ask permission "from a publisher I worked with years or even decades ago) from taking on a new book project by a past book project is unreasonable in my opinion.
Clearly I am not insensitive to the concerns a publisher might have. I am more than willing to have those conversations with a publisher. But for me a clause like this comes down to who should have agency / control over my future career.
I feel that I (and not a past client) should be the one to determine a potential conflict of interest. I should be the one deciding if I should accept or pass on a project. -
@xin-li it is an excellent idea! We could build our ideal frame contract with the inputs from all the working illustrators on the forum! I guess there would be some difference US / non US law but they should be minimal. Contracts are pretty standardized nowadays.
I say "we" but I am not an illustrator - yet if I was, I would love participating in a collaborative work on that topic...