Copyright question from a contract
I was prepping some material for my high school students about contracts and freelancing, so I decided to show them one of my old contracts from my first freelance gig.
I found something that I'll have to bring up with my client (since we are working together on a series of books and have a contract for each), but I wanted to ask some fellow illustrators opinions on this.
Regarding rights, the contract reads: "[The client] will own the book illustrations. The sum of $2,500 secures the rights for the illustrations. Lauren Petiti will own the rights to use the illustrations in formats outside of the publication of this book"
Now, I signed this back when I had zero knowledge, and this client is a family friend who is very easy to talk with regarding these things. I know now that $2500 for 28 illustrations is WAY low...but I'm wondering if other see what I see.
Did I basically agree to terms that I am "allowed" to use my own drawings? I am planning on explaining to my client how the illustrator owns the work, but of course her consulting firm own the rights to the book. I'm essentially leasing them to her, right?
Thanks for your help!
This is a good question. And it's great that you are working to get it clarified.
For actionable advice please consult an IP attorney. I strongly recommend Volunteer Lawyers for the Arts. They are a national organization with chapters in many of the the cities around the US.
My opinion: I don't think you are licensing the use of the images in book form. "Own" means something specific. I learned a long time ago from an IP attorney not to use the world "sell" or "buy" in regards to intellectual property. Rather if what is meant is a "temporary permission to use" then "license" is the appropriate term.
The client could reasonably think they own the sole right to reproduce the images in book form. More importantly they could reasonably think the client (a consulting firm?) could sublicense the images to a third party to use the images in book form.
From this wording it would seem reasonable that all other uses (other than book form) are controlled solely by the illustrator (you).
It's worth noting that this phrase doesn't need to be included int he contract since by default any aspects of your copyright that you don't specifically sign over (either temporarily "license" or permanently "transfer") remain with the intellectual property creator (you)
Thank you for the response! That does help. And yeah, it's a family friend and her brother who own a consulting firm. They collaborate on books to promote literacy in the Central Valley in California when they're not doing their consulting. The book ideas are pretty cute too, it's been a great way to practice working as a professional and build my portfolio.
I definitely don't think there's anything malicious from the author. After hearing what nightmares self-publishing authors can be I realize how blessed I am to work with this group. But I think it's worth speaking to her about this. The good news is she's never objected (not that she'd have a basis for it I think) to my posting wip's or final drawings (without the text) on my Instagram to promote the books, and I use the work in my portfolio.
Melissa Bailey 0 last edited by Melissa Bailey 0
@lpetiti -- as @davidhohn recommends, consulting an IP attorney is the way to go on this one. The terms "own" and "secures the rights" could be interpreted differently by different parties. If the client owns the illustrations, does that mean they own the originals? What rights are they securing? Reproduction rights only? Full rights (the copyright)? What permissions are actually being given? And what did you, the artist agree to give away?
It could be interpreted that the client owns the original artwork AND the copyright, and the artist is "owning" usage rights only. In that case, then yes, you would be "allowed" to use your own drawings only in ways approved by the client, since you would no longer own the artwork. It's very common for self-publishers to want to own all rights to the illustrations instead of being granted usage (or reproduction) rights.
To answer your question: "I am planning on explaining to my client how the illustrator owns the work, but of course her consulting firm own the rights to the book. I'm essentially leasing them to her, right?"
It depends on the wording of the contract. When you create the work, you own the copyright to it. However, in negotiating a contract, you may be agreeing to give those rights to the client, depending on how the contract is worded. Even explaining it verbally, choose your wording and terms carefully. The consulting firm would only own the rights to the work if you agreed to sign over the copyright to the client in the contract. If your intention is to "lease" or give them permission to use the artwork for a specific purpose, then you are granting (or licensing) usage rights or reproduction rights to your client, which should be clearly defined in the contract. They would never actually own anything if usage rights are granted. In that case, all ownership remains with the copyright holder (you).
But as has been said, if you have questions, consult an IP attorney. (This forum is not a good substitute for the real thing, but we can share experiences and offer suggestions.) They may also help you draft a contract wherein the wording is clear, all parties fully understand the terms, and everyone is happy with it. Hope it all works out well for you!
Thanks! I will definitely keep IP attorneys in mind. I will let the author know that from now on we should phrase the contact so that it's clear that I'm granting usage rights of the illustrations in the context of the book, rather than outright selling them to her (which, based on what I've seen on these forums is WAY more expensive!)
Well, good news is that I just got off the phone with my client, and she wanted me to know she understood my concerns. We talked about how she is aware that I own the illustrations and that if she was to ever ask for the copyright of them she'd have to pay a "hell of a lot of money" (in her words). Since we've been working together for a long time and I know her well, I was satisfied with our conversation. I thanked her for letting me get my sea legs in the freelance world by working with her. Moving forward with clients that I don't know, though, I definitely know that I need to make sure that I'm aware of the specific wording of the contract.
She also pointed out something interesting. As an educator, take a look at my contract to see if the institution can own the copyright. For instance, if I worked at our city's university or junior college, used their resources or their time, apparently many contracts say the university owns the work (nevermind how screwed up that is...). I doubt that's in our contracts at the high school level, but now I'm curious.