Question about contract & copyright



  • Hi illustrators!
    I'm currently negotiating a fee with a small German publisher who wants me to draw a 12-spread picture book. I have to deal with this without my agent and this is my very first picture book job if I will make an agreement.
    So the thing is, she wants an exclusive license right and I'm wondering what that exactly means in practice. Does that mean she could sell my illustrations to other foreign publishers and make a profit? (which sounds unlikely.) And could I use the illustrations for my portfolio, social media, etc. for non-commercial purposes, or do I have to make it clear on the contract if it will be an exclusive right?
    Any advice would be much appreciated! Thank you for reading. ☺



  • Not entirely sure what the exclusive license right means in practice. All of the things you mentioned should be agreed upon in the contract before you start to work. Very clear definition of who owns the rights and what rights are transfered and if the compensation is work for hire or a flat fee and share of the profits etc.

    I know that it is good practice to allow the illustrator to use the images on their portfolio and to market themselves at least after the book has been published. Sorry that I cannot be more helpfull.



  • @hakepe Okay, so basically you have to negotiate everything properly. Thank you very much for your answer!


  • Pro

    @paran Usually with exclusive rights, the artist is still allowed to use the pictures for self-promo purposes such as portfolio and social media, but it's good to have it in writing in the contract anyway. What's good to know though is that it is NOT the norm for publishers to request exclusive rights. That's because most of the time it's unnecessary, and exclusive rights are expensive AF. You're signing away any potential future income you could make from those illustrations, and that's worth something. In fact it's worth in the tens of thousands of dollars and they probably can't afford that. Certainly do not sign your rights away for no additional compensation. You can explain to them that exclusive copyrights are not necessary and it is not industry standard to request them. Get a conversation talking about their needs. The licensing agreement should restrict the territory where they can use the art, the time during which they can use it, and sometimes other things as well such as number of units they will print, wtc. Do they only publish in Germany, in German language? Well, maybe a license to use the illustrations for 10 years restricted to the German territory would be right up their alley, and that's a much more reasonable request. Maybe they don't want you to resell your illustrations in Germany, but they don't mind if you resell them elsewhere? Then perhaps an exclusive license only for German territory would do wonderfully.

    Each contract is slightly different - I recently signed a contract with a self-published author who wanted to to be able to sell her book on Amazon worldwide and in many different languages, and both in print and digital, so instead of restricting territory I sold her a non-exclusive license to sell up to 1000 copies worldwide. This protects me because if the book does really well, she will have to renegotiate a license for additional copies. You want to do is retain rights to your illustrations at least in certain countries or after a certain amount of years, in order to be able to resell the art later if you so wish.

    Most people and even some publishers think they need exclusive rights when they don't. It's up to you to explain that to them and negotiate a fair agreement. That self-published author I told you about initially wanted exclusive rights too. Ità told her it would be way too expensive and started a conversation about what rights she actually needs. I gave her examples: for instance, if in 8 years I resell those illustrations to a Swedish company to use on their reusable diapers packaging, does it affect your own project at all in any way? I originally offered her a 5 year license for use in Canada and French language only. When she told me she wanted to translate it and sell it online worldwide, we opted for a restricted amount of copies instead and wrote into the contract I cannot use the illustrations in book form again, but otherwise can resell them as I please. This worked for both of us and respects my rights much better than what she initially wanted.

    The most important thing is to discuss all this with the publisher and if anything is not 100% clear in the contract, ask them to clarify and have it written in. For instance the use of your illustrations in your portfolio - while it's usually allowed, every contract is different. Asking the question here cannot answer your question with certainty, only asking the publisher about it can!



  • @NessIllustration said in Question about contract & copyright:

    I sold her a non-exclusive license to sell up to 1000 copies worldwide

    Interesting! How would you keep track of their sales? "Good faith, trust, and honesty" seems too easy to take advantage of when it comes to money (sorry!). 🤷



  • @NessIllustration
    This is extremely helpful! Thank you so much for your time and the valuable information.I asked the publisher to restrict the time of use for 10 years and they seem to be fine with that. However, they are going to make a multi-language picture book and want to sell it outside of Germany as well. There will be 8 languages in one picture book which is quite uncommon.  In this case the request of an exclusive right is too much to ask for, I believe.  Thank you for your concrete example of the recent contract that helped me to understand better about making an agreement. It's good to know that you can also limit the number of copies of a book in the contract.
    Mr. Will Terry once said on his YouTube video that everything is negotiable and your advice just reminded me of that.


  • Pro

    @Neha-Rawat No you're right haha ^^'' I don't have a good way to verify her sales independently, so I would only offer this to someone I feel that I can trust. We had many long discussions about copyrights and I felt like she was taking this seriously and really wanted to find something that worked for her, not just take the first deal because she intends to lie her way out of it anyway. I could be wrong about her, but my gut tells me she's okay. I also don't offer this kind of arrangement often so I don't have to keep track of multiple books.


  • Pro

    @paran Indeed everything is! Making a book to sell in 8 languages and many different countries seems a large and ambitious project, so there is potential for a really good payout if you and the publisher can work this out! The average rate or a children's book is $8,000 to $12,000 US, and since they will sell lots of books in lots of different countries and languages, and need more copyrights, it should be a lot MORE for this project 🙂 If they say something like $5,000 for the illustrations and rights, heck no get out of here! They'd be trying to take advantage of you. But if they have a good budget, like twice the average or more, this might be a good deal!


  • SVS OG

    First of all, congratulations on the job!

    This is just a little background information to take into consideration:

    My understanding of European publishers is that they offer very low advances in comparison to American ones. This is because the markets are smaller and they expect to sell fewer books. Therefore they hope to publish the books in other languages as well, in order to eventually make enough money. I am no expert, but that would make me think you want to be in on those other country rights, especially if your starting advance is low.



  • @NessIllustration said in Question about contract & copyright:

    @Neha-Rawat No you're right haha ^^'' I don't have a good way to verify her sales independently...

    I imagine it's probably less for being a stickler if they sold 1001 copies and more if sold like 50,000 and it does way better than anyone thought it would 🙂


  • SVS Instructor Pro

    @Neha-Rawat

    Interesting! How would you keep track of their sales? "Good faith, trust, and honesty" seems too easy to take advantage of when it comes to money (sorry!).

    This is pretty much what you are agreeing to when working with any publisher, big or small. The "stick" behind this is that the license is limited to the 1000 copies specified in the contract. Selling one more copy beyond that is outside the scope of the license and is an infringement. What's more it is a "willful" infringement which carries potential statutory damages up to $150,000 per infringement (per book)

    Can I ask what your alternative is? Not arguing -- genuinely curious.


  • SVS Instructor Pro

    @NessIllustration said in Question about contract & copyright:

    I sold her a non-exclusive license to sell up to 1000 copies worldwide

    This is going to seem like I'm nit-picking your message, and I'm really not trying to. You alway offer great advice and knowledge.

    Okay that said, because these board about about education I want to make sure information is clear. It's important to know the difference between the term "sold" or "sell" and "license". The two terms mean significantly different things in a contract.

    In short "sell" means the client "owns". While "license" means the client "rents"

    https://www.clariclegal.co.uk/the-difference-between-licensing-and-selling/

    Ignoring the difference between these terms may allow a client think you mean something different than you intended in a contract. Should any kind of legal institution get involved they will side with the industry standard meaning.


  • Pro

    @davidhohn I think this may be an example of my less than perfect grasp on the English language! I don't always grasp nuances - I think of anything I get money for as something I "sold", but you are right this is better classified as "rent". Back in the day when I rented DVDs from the video rentals, I would have said I bought the DVD for 3 days hahaha... In my native language this makes sense, I swear!


  • SVS Instructor Pro

    @NessIllustration Would never have guessed that english was a second language. No worries! My reply was as much for all the people who read your posts as it was for you.

    And BTW, I only know this because I used to read a board where an IP attorney was constantly reminding illustrators that the difference between these terms was super important!


  • Pro

    @davidhohn It's really good that you let me know! I honestly thought licensing (aka renting) and the phrase "selling a license" were the same thing. I thought of it as selling a "permission" so to speak and 100% thought this was good English. Thanks for interjecting, I need to know this! I don't want a misunderstanding with a client over a word difference like this!



  • @LauraA Thank you so much for your kind advice, Laura 😊 Yes, their budget is not so big and I asked for a royalty for the sales in Germany as well as foreign rights. I heard it is common that you get a certain percentage of royalty as a picture book illustrator in Germany. Well, it's a compromise for me, but I think it's not too bad.



  • @NessIllustration Yes, it is an ambitious project, indeed! Unfortunately their budget is below the average that you mentioned..so additionally I asked for a royalty. I will be thinking about this job..! Thank you for your kind help!



  • @paran I illustrated my first book with a Norwegian publisher last year (I live in Norway). The advance is really low (40 pages PB for about 2500 USD). To be honest, I have no clue what rights I have signed off. I will have to dig out the contract to check. I know I can re-sell illustrations I did for the book as art prints.

    It does have a 7% royalty (which is a bit higher than what US and UK publishers offer, so far I was offered 5% with the US and UK publishers).

    In many European countries, Norway included, picture book production depend on state support and cultural grants, due to the small market. In Norway, selling 1500 copies of a PB book is considered a fairly good sales number.


  • SVS Instructor Pro

    I was just doing a little math. Do you know what the cover price for the book will be?

    And if you don't know specifically, then what is the cover price for a typical 32 page picture book in Norway?



  • @davidhohn
    I have no clue about what the cover price for a typical 32 pages of PB in Norway.
    What is a cover price for a book exactly? A quick google search does not give me a satsfactory answer?
    The retail price of the book I did is around 15usd-20usd.


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