13 Thinking about Artist Contracts: How to Protect Your Work
How to Protect Your Work
Dr. Jessica Boehman
It’s imperative to know how to protect your work before entering into any situation in which you will be paid for it. A contract is a necessary part of working with any client. Different than a copyright for a visual artwork, which must be filed with with US Copyright Office and which protects your artwork against unauthorized use, a contract rather lays out the ways in which another may pay to use or to own your work outright. Moreover, a contract signals to your client that you are a professional who is not only making sure that their work is protected, but is also protecting the client, as well. In the case of any future legal disputes, having a contract signed before the start of work will be your best legal defense against bad behavior.
I will add a sample contract below with sections that must be filled out and edited to suit your particular needs, but will discuss certain portions at the start of this section to clear up any misunderstandings.
Scope of Work Commissioned
This section defines what exactly is being commissioned from you as the illustrator. Is it an album design, a t-shirt, a single image, a self-published book?* You will want to be specific with what you will provide, from sketches to final works and the specific usage.
*When working for publishers, they will provide the contract to you. It’s important that you read it carefully or have a lawyer versed in book and entertainment law read it over for you before signing. Hiring a lawyer for an hour may be well worth it if there is ever a contract dispute.
Deadlines and Completion
It will ease the mind of your client and keep you on task if you agree upon a necessary end date. Remember, the client may need a very tight deadline. Be sure to keep your end of the contract here. This should be agreed upon with the client in advance of drawing up the contract.
Rights Transferred
You need to consider what rights the client will have access to regarding your illustrations. Is it a one time use? Will they own the works outright (will they have exclusive rights? Are they licensing them? If so, what are the terms of the license? Will you be paid a royalty?Will you have the ability to retain the copyright (if you have applied for one) or other owner’s rights to the works? Can you use the artwork in your portfolio, social media, or other promotional sites?
Compensation
You must have the conversation regarding compensation before filling out of a contract. Again, this might depend on the type of usage. Will you be paid a lump sum for the creation of the work and a royalty each time a work is sold? Will you have an advance that you must pay back before a royalty kicks in (most common in publishing)? Will you be paid to give the full rights away–you can never use that work again? (If so, ask for MORE). Will you retain the rights and continue to market this as other sellable media, such as t-shirts, prints, or other goods? Be sure to detail what you will be paid, when you will be paid, and how you will be paid. It’s always a good idea to take a deposit upon approval of sketches. Do not deliver the final work before you receive the final payment.
Termination / Kill Fee
A kill fee protects the artist if the client changes their mind about needing the work once the work has progressed.
Non-Payment; Remedies
This portion seeks to protect the artist who has not been paid. It’s a good idea, as mentioned above, to at least take a deposit at the start so you are not left with nothing at all.
Severability; Integration.
This reinforces the entirety of the contract, and suggests that it cannot be changed once signed without both client and artist agreeing (and signing a modified contract!).
Unauthorized Use by Client; Indemnity
If it is found that the client has used the artwork in ways which were not permitted, this clause means that upon legal action, the legal fees of the artist will be compensated for their expenses. This is called indemnification.
Warranty of Originality
This protects the client from you passing off a work used elsewhere as original. If they are paying for an original, give them an original.
Release of Liability
This protects the artist from being sued for damages if for some reason the work cannot be completed. This is not a license to not complete your work, but rather would be used in extreme cases.
*Note: The information at the start of this chapter was written by an artist, not a lawyer. When in doubt about contracts, seek the services of a lawyer.
A Sample Artist’s Contract (EDIT EACH SECTION AS NEEDED)
ARTWORK AGREEMENT
This Agreement (“Agreement”), entered this ___Date____, between _________[Artist] and __________ [Client], shall govern the respective rights of Artist and Client with respect to the artwork described herein.
I. Scope of Work Commissioned
Artist and Client expressly agree that the artwork to be created by Artist pursuant to Client’s specifications shall be limited to, unless modified in a writing signed by both parties, the following artwork, hereafter known as “the Work”:
(i) Sketches of possible compositions for the (description of project) to be completed and made subject to Client approval.
(ii) (Description of finished work and what file specifications will be delivered)
to be delivered to Client;
and (iii) to be used for (describe specific use of the artwork by the Client)
II. Deadlines and Completion
Upon receipt of Client’s specifications pursuant to Section I, which Client agrees are true and complete at the time of execution of this Agreement, Artist agrees to complete the Work upon the following schedule: _____DATE_______ for completion and delivery of final Work.
III. Rights Transferred. (This is for a contract where the client purchases the rights–you can edit this to fit your needs)
Artist and Client agree that the following rights shall be transferred from Artist to Client upon completion of the Work. Any rights not expressly specified herein shall be reserved by Artist.
All-Rights. Artist hereby grants and assigns to Client the exclusive rights to publish, print, employ, advertise, or otherwise utilize the Work exclusively in relation to the CLIENT, and not in furtherance of any other purpose not stated herein, commencing upon completion of the Work by Artist and receipt of payment by Client, unless modified by a writing signed by both parties. Artist retains ability to use the image only for his/her professional promotional use on his/her professional website or promotional print items, such as business cards, with identification of the product ownership by CLIENT, and not for reuse or resale.
IV. Compensation.
Upon completion upon the schedule set forth in Section II of this Agreement, Client agrees to compensate Artist as follows: (Describe agreed upon price and payment schedule). Payment may be sent via (check, paypal, etc. If to paypal, list the email address associated with the account). After approval of final sketch, one change is allowed. After that, a fee of $150 per change applies as all artwork is drawn by hand.
V. Termination/Kill Fee.
Client may terminate this Agreement at any time by sending written notice thereof to Artist at the address provided herein. Upon such termination, Client agrees to compensate Artist as follows: (1) Partial Completion. If Artist has partially completed the Work, Client agrees to compensate Artist at fifty percent (50%) of the compensation identified in Section IV herein. If this Agreement is terminated by Client after Partial Completion by Artist, Artist shall retain ownership of all rights of copyright and the original artwork, including but not limited to completed artwork, sketches, and comps. (2) Full Completion. If Artist has completed the finished artwork at the time of cancellation, Client agrees to compensate Illustrator in full as otherwise provided in this Agreement.
VI. Non-Payment; Remedies.
Any delinquent payments due Artist from Client shall bear interest at the highest applicable statutory rate in any jurisdiction in which the Agreement is made. If no such statutory rate applies, payment delinquencies shall bear interest at a rate of two and one-half percent (2.5%) per month. Client agrees that it shall bear responsibility for any fees incurred by Artist in enforcing this Agreement, including but not limited to attorney’s fees and court costs.
VII. Severability; Integration.
Client and Artist agree that this Agreement shall not be amended except by a writing executed by both parties, and expressly state that this writing shall constitute a complete expression of the entire agreement between the parties, and that no additional terms exist that are not included herein. To the extent any provision contained in this Agreement shall be found to be void, invalid, or otherwise unenforceable in any way, such invalidity shall not affect the remainder of this Agreement, which shall remain in full force and effect.
VIII. Unauthorized Use by Client; Indemnity.
Client agrees to indemnify Artist against any and all claims and expenses, including but not limited to attorney’s fees and costs, incurred as a result of Client’s unauthorized use of the Work under this Agreement, including the enforcement of this Agreement by Artist.
IX. Warranty of Originality.
Illustrator represents and warrants to Client that, to the best of Artist’s knowledge and belief, the Work assigned by this Agreement is original and has not been previously published or licensed to any third party. This warranty shall not extend to any unauthorized or undisclosed use of the Work by Client which may infringe upon the rights of any other person. Client agrees that it shall hold Artist harmless for any claim or liability caused by Client’s use of Artist’s product to the extent such use infringes upon the rights of any other person.
X. Release of Liability.
Client agrees that it shall not hold Artist or any agent thereof liable for any damages arising from Artist’s failure to complete the Work in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of Illustrator or of any third party.
Consented and Agreed to this DATE
____________________________________________ [Client] Date
____________________________________________ [Artist] Date
definition
a sum of money paid to a patentee for the use of a patent or to an author or composer for each copy of a book sold or for each public performance of a work.
Exclusive rights grant a sole and unique authority to an individual or entity, allowing them to control the use, distribution, or commercialization of a specific work, property, or asset.
Art licensing is the process where an artist grants a third party the right to use their artwork for specific purposes, usually for reproduction on products or in other commercial contexts, in exchange for payment. It's essentially "renting" your art to a company for a defined period and set of uses, while you retain the copyright.
a sum of money paid to a patentee for the use of a patent or to an author or composer for each copy of a book sold or for each public performance of a work.
a pre-agreed payment made to a freelancer when a project is cancelled or not published after it has been commissioned
