Kevin Hauff is a veteran of the Illustration game. He taught me at UCLAN and his advice and lecturing skills have proven one of my most crucial tools in avoiding the many traps that all creatives must circumnavigate in the modern day creative industries. Check out his stunning work at http://www.kevinhauff.com/ but these words may prove pivotal for many freelancers:
After an invitation from Ben to contribute, I’ve raised, pondered and addressed a few questions about how the current economic climate is influencing the way both freelancers and clients are dealing with copyright; mainly with regard to retaining and relinquishing copyright ownership. To begin there’s also a brief tale of one particular experience I had as a fairly new graduate with a prominent client who employed a rather dismissive attitude to copyright law. To protect all concerned I’m not going to reveal the end users.
Lord only knows I’ve made virtually every mistake possible in the illustration game, fortunately I was lucky to learn early on in my career about the benefits of protecting copyright. Having not been long out of college I was still very naive when it came to how copyright worked in relation to an illustration commission, cutting my teeth on editorial’s initially where the copyright rules were generally pretty simple. At around this time, I was taken on by an Agent so Design and Advertising work started to come in. Luckily this Agent was instrumental in my second education in terms of making oneself aware of the nitty-gritty that surrounds an illustration commission, and subsequently how to protect oneself against the occasional charlatan in the game, that beware, do exist.
I was invited to submit sketches for a national campaign, starting with a brochure, which would if successful, expand to many further commissions - the eternal carrot - how often have I heard this since in my career, especially “if you can keep the fee low”? Several artists were considered for the job, but I got lucky and my then Agent secured the commission. Terms including fees, deadlines, copyright usage and assignment were all agreed in writing. Copyright assigned for one print application only, full copyright and original artwork ownership retained by artist. The commission was then completed, any amendments dealt with and all the deadlines were met. Client pays promptly. Everyone happy. I thought that was the end of the story, little did I know! A mushroom cloud of initial disbelief, followed by frustration and anger erupted several weeks later. Up until now, all the companies I’d ever worked for had been as straight as an arrow. A baptism of copyright fire perhaps… After several weeks the Agent visited the client premises to pick up the original paintings (required for an annual book promotion) only to find the artwork had been applied to many items outside of the agreed terms, including cards, posters, exhibition panels, flyers, merchandise etc. All sat in the office, ready, waiting to be sent to the end user client. The agent requested to see the Art Director asap (without appointment) and refuses to leave without being seen - FIGHT! The agent politely pointed out the breach of copyright issue and requested extra payment for multiple copyright infringements. Art Director then bluntly declined. Agent (volcanically enraged) then consults end user client, informing them of Ad agency / Design Group malpractice re: copyright infringement. Agent consults (copyright specialist) solicitor, threatening end user client and Ad / Design company with a lawsuit for breach of copyright. End client user comes down on the Ad agency / Design Group like a ton of bricks having zero knowledge of the original copyright terms, threatening to retract their entire account if the issue is not resolved. Ad agency / Design Group finally admit and agree that they have ‘taken a few liberties’ in terms of the copyright assignment. Through gritted teeth, they finally agree to pay for all copyright infringement, then threaten to ruin both Agent and the Illustrator in the Art & Design business!
Copyright fun and games. What did I learn from this? ALWAYS, but ALWAYS ask for copyright terms as the fee, deadline and the theme of the commission are being negotiated, especially if the artists does not have formal representation by an agent. Once agreed, ask the client to confirm in writing so there is proof of the original arrangement where both parties are clear as to how the work will be used. I also learnt to generally stick to ones guns about retaining copyright ownership of artwork, but alternatively, when required, to be open minded and flexible too. In some cases I have signed up to abysmal terms with regard to the copyright ownership, for one reason only. I had the opportunity to work for a client that I’d always wanted to work with. Sometimes it can benefit in the long term to just grin and swallow the bitter pill, while gaining some satisfaction that the bagging of a high roller is payment enough for the deal with Beelzebub. It is just part of the game. Before this incident I would never have asked about copyright. I now ask every time I get an enquiry and commission from a new source. The most important thing is knowing what you are signing away in the first place, so that you can make an informed choice as to the best course of action to take when the thorny issue of copyright assignment and ownership comes up, and it will, its only a matter of time.
Constantly monitoring copyright terms with all of the other associated freelance paraphernalia is yet another issue to address and is usually never at the top of the freelancers list, especially at career start. Ignorance with regard to copyright ownership could be a potential stormy sea for the unwary, especially those afloat on a rough ocean of limited experience. When it comes to the potential for ripping off both artists and even photographers, some mercenary clients can be rather vampiric, sucking as much out of the commission as they can get away with. If copyright has been agreed and signed off by all parties then you would think that would be the done deal, adhered to by all. Sadly not always so, as in my little tale which went on for some time afterwards, resolved in the end, but was a salutary lesson to learn early in my career - agree terms in writing - and check on what the client is up to with the print run.
A few questions spring to mind with regard to the current illustration market place and how clients are changing and adapting their copyright requirements…
1. Are all clients circling sharks tasting the blood in the water ready to exploit their contributors?
Thankfully not. Actually, the vast majority are a pleasure to work with, some are wonderful and even go on to become life long clients where a healthy working relationship brings great creative rewards for both artist and client alike. This makes the odd copyright trickster pale into insignificance. Learn the rules and its fairly simple to play the game - even defensively when required.
2. So where are we now and why do more clients seem to be requesting outright copyright ownership?
From discussing this with clients of late, its all about maximising how far their budget will go. Quite simply, in this economic climate of restricted outlay the aim is to reduce their expenditure for extra usage on the artwork. If the artist owns the copyright, every time the end client wants to use the artwork for something new they have to consult with the artist, negotiate permission and pay an extra fee. Time, effort and money. If the client has copyright ownership, they can use the artwork wherever and whenever they want to, over any time frame, without consulting the contributing artist. Time and budget efficient. Worrying isn’t it? Especially when the piece of work concerned may well be something the artist has put heart and soul into and the manner in which the client is using the work starts to differ from initial expectations. Which scenario would you rather have, copyright retained or copyright sold?
3. Playing devils advocate; are clients protecting themselves from the artist with outright copyright ownership?
In some cases yes, and rightly so. There must be some self policing and restraint by the artist, where the artist respects the aims and intentions of the client and their respective campaign in the manner in which they use the artwork for any future personal gain, be that promotion, resale, competition entry, stock sale etc. Consider the potential scenario where an artist gains a commission, retains the copyright as is their right, but then decides that in a few week or months to resell the rights of this image to another rival client. The same image now being used in two similar campaigns by rival companies, at roughly the same time. If the artist retained the rights, they would have done nothing ‘wrong’ from a legal perspective, but little consideration would have been shown to the original client who’s campaign with the original artwork would now be next to useless. Is it any wonder clients want full copyright ownership? After all they are only trying to protect their (considerable) investment in the grand scheme of their campaign. Perhaps, another reason why a client would like full control of the use of the artwork.
4. What can the freelancer do to protect their copyright?
Read the small print! Firstly, know the basics of how copyright works. Secondly, ask questions when the client initially makes contact. Prepare a check-list in advance so that you are ready. They only need to be basic introductory questions: My intro list runs like this:
1. What is the theme?
2. What is the deadline?
3. What is the fee?
4. How and where is the image to be used?
5. What are the copyright terms?
From those simple questions, either by phone or email, the freelancer should be able to gain enough info to start proceedings and then expand with more searching questions if the job progresses or the klaxon starts ringing. Thirdly, if very restrictive, the freelancer does have the right to say no to the copyright terms offered by the client, then perhaps renegotiate by submitting alternative ‘compromise’ terms to which the freelancer would be happy to undertake the commission. It is here that the tug of war begins and on more than one occasion this has worked out beneficially. Although I’ve found it best not to be overly pedantic as the client may become impatient and go elsewhere if a king’s ransom is requested as part of the deal. It is at this stage where negotiations get interesting. Finally, and probably most important of all, get everything regarding the copyright terms agreed in writing with the job purchase order.
5. Does the artist have to sign away their soul in blood with every commission?
No. Although on occasion you may have to choose how much you are prepared to sign away. In the current economic climate, all freelancers are at the mercy of the clients, (any client), as not only are the number of commissions decreasing due to shrinking budgets for such a luxurious commodity as an illustration. The very future of the clients themselves are also in jeopardy, threatened by the these European / global forces of financial doom. How many Magazine, Design Groups and Advertising Agencies that you know of or have had dealings with have gone into receivership in the last few years? I would bet a pound and a dollar (but not a euro) on more than one. Is it any wonder clients are tightening their copyright terms? Quite frankly, I don’t blame them. Of course, it doesn’t make it correct or fair practice in terms of what we the freelancer expect or hope for when we sign on the dotted line, just a reality we have to deal with. Most commissions will remain with a copyright bias towards the artist, but it seems an increasing number will not.
6. What about the Internet?
Copyright still applies and stays with the artist, unless otherwise agreed with the end user client. Although what I’m finding are that some clients are requesting copyright ownership for a short period of time only (often thirty, sixty or ninety days), where they can use the artwork for both print and web. I personally don’t mind this copyright flexibility for two reasons. Firstly, the client gets what they want (for a limited period), so if the client is happy and if the commissioned work is of high standard, then hopefully they will come back to the contributor for new work. Secondly, by using the artwork on the web the client allows greater potential for the exposure of the artwork in question, essentially free net advertising for the illustrator concerned, as well as the usual print visibility as well - as long as the contributor is name checked. All for a little open minded flexibility when copyright assignment is negotiated. One of those rare win/win situations when both parties gain from signing away the rights, the caveat being, only sign the rights away for a short time span, the aim is for the artist to keep the rights once the copyright allocation ends.
7. What does it all mean in the short term?
Recent economic gloom + double dip (pending) recession + restricted outlay for all clients = fewer jobs for freelancers + revised copyright terms.
Something we are going to have to get used to unfortunately. It seems the recent golden period of illustration is now over. Its been tough, its tough now and its going to get even tougher if the news headlines are to be gauged as an accurate barometer. Consider this: If you do gain a commission, firstly count yourself lucky, you are producing work that is gaining the right sort of attention, but what happens if that commission is dependent upon relinquishing the rights on the job? What do you do? There are plenty of other freelancers circling each commission, ready to relieve it from your hands if you let it go. Only quite recently I had to make this choice. I chose to let the rights go. It hurt, but I deemed it necessary as the client was one I’d always wanted to work for and I also needed the income, so I decided not to miss out on the opportunity. Though it is not something I intend to do with every client.
With the illustration market compromised by external economic woes I think it really is time to tighten belts and not only that, certainly in the short term future it may be time to be willing to sign away those precious, much prized and passionately fought over copyright terms for a lot less than you (or I) would ordinarily like, for the one clawing simple fundamental reason, the need and desire to survive…?