Contracts question

[RajSolankiArt]

Hi all! Been a while since I’ve been on here.

I had a question regarding contracts that i haven’t seen an answer for in the forums (but could have missed). I am in discussions with a children’s book author to illustrate their book. We’ve talked through pricing, timeline, budget, and sketch/revision expectations. Currently it’s a project that she is writing with no attachment to a publisher, but she believes there is potential for it to get with a publisher. When constructing a contract to send the writer, how would I go about including that the art is not work for hire and them at when it gets to a publisher o am still considered equal creator so that I can have a claim to an advance/royalties? Couldn’t find this scenario in contracts provided by the graphic artists guild either.

Has anyone dealt with this before? @Kathy-Jurek i saw that you had worked on a contract with someone before. Did this come up for you?

Thanks in advance to anyone who can help!

[NessIllustration]

@RajSolankiArt

Hey Raj So I know this isn't technically the question you asked but this is the answer you need.

Publishers do NOT like when authors send in manuscripts with art already done by an artist the author has picked. Publishers like to pick the artists themselves because they know what will sell, what will fit the story best, etc. If this author want to be published traditionally they should send their manuscript right now instead of hiring an artist. Furthermore I'd say if this author wants to be published but they don't even know that publishers pick the artists, then 1. They haven't done their research very well, 2. They have absolutely zero idea how this industry works, 3. Therefore there's very little chance this books ever gets traditionally published... ever.

Your best bet here is either tell this to the writer and that'll help them make better decisions in this process. Or if you're feeling less helpful, negotiate a fair work for hire contract where you'll get good money now for your work. Cause chances that this book actually gets published are slim. Chances that this book sells well enough for you to make great royalty money even if it DOES get published are even slimer.

[RajSolankiArt]

@NessIllustration That actually makes a lot of sense. It seems like it’s gonna be self published, but I was just curious that if someday that unlikely scenario of a publisher taking it did happen, how I could include something in this initial contract to account for that.

[NessIllustration]

@RajSolankiArt Then I think you'd be looking for a regular royalty contract, where you'd negotiate what % of the book's revenue will go to you. I don't think it matters too much if the book doesn't have a publisher yet or might get self-published in the future, as long as you have the % royalty written in your contract then that affects all the future money this book makes. I personally do not like to do royalty with self-published authors though. The overwhelming majority of the time, there's no good system in place to keep track of those royalties and send them over to you. It's one thing to trust a publisher to send me the correct royalty, another to trust an author to keep track of their sales properly AND be honest about the exact amount of their hard-earned money they're sending back to me. Would you be willing to trust the author to give you the real sales numbers?

[Jeremy Ross]

Hi @RajSolankiArt, once the book is self-published, I doubt any publisher would be interested in it, even if it did well. By self publishing, the author chose to wear all the hats of the publishing house, minus the illustrator.

I would bet the author is not very familiar with children’s literary industry, which is why they think they can hire an illustrator for their book.

You might want to ask:

1. How many books have they published both independently and traditionally.
2. What is their sales goal and expected ROI.
3. Can they pay in advance or only after book sales prove it a success (not good).

First talk price, if they are willing to pay you similar to traditional publisher, say 5-10k lump sum with agreed milestone payments in a standard artist contract, then it might be worth the effort.

Good luck!

[davidhohn]

You've gotten generally sound advice and how to manage your expectation from previous responses. But I also wanted to try and respond to your initial question. General caveat that I am not an IP attorney and you should consult one before proceeding.

@RajSolankiArt said in Contracts question:

When constructing a contract to send the writer, how would I go about including that the art is not work for hire

Speaking for US Copyright Law -- You don't have to worry about that. All work is automatically NOT considered Work for Hire (WFH). Generally it is presumed that the creator of the artwork is owned solely and exclusively by you. In fact the only way a project can be considered WFH is if that term is explicitly written down in a contract and signed by both parties (i.e. you can not have a verbal WFH contract)

and them at when it gets to a publisher o am still considered equal creator so that I can have a claim to an advance/royalties?

You would want to limit the Grant of Rights (the portion of your copyright that you license to the author) to the specific book format printed by the author. When the author stops printing the book in that format all rights to the artwork would revert back to you. You would be the one to negotiate with the publisher for the grant of rights licensed to the publisher. This is not something done on your behalf by a third party.

[RajSolankiArt]

Thanks everyone for the input and help! Moved forward with the author today, really appreciate all the advice!