Understanding copyright for illustrators doesn’t need to be complicated. Every illustration you create is your property – you own it, you are the copyright holder. You can give permission for other people to use the illustration for free or for money, or you can sell the entire copyright. It is yours to do with what you want.
The illustration business operates on the basis that you grant clients a licence to use your intellectual property for different purposes, in different places and for different lengths of time. The artist is still the owner of the illustration and has the right to copy it (copyright). Clients pay to be able to use your work in predetermined ways for a certain amount of time in the form of a licence.
Increasingly, clients are asking for the transfer of copyright in their contracts, which means they will own your illustration outright. It is in your best interests to keep hold of your copyright.
Copyright Basics
- Since the Copyright, Designs and Patents Act was passed in 1988, in the United Kingdom, creators of artistic works like illustration, photography and music have the right to control how their creations are used. Creators also have the automatic right to be credited – this is known as the ‘moral’ right of authorship. This only applies to work you are commissioned for as a freelancer; if you are employed by a company, then generally the company will be the copyright holder.
- In the United Kingdom and Europe, your work is automatically protected by copyright. You don’t need to register anything, you don’t need to add a © to your illustrations. Your work is protected with or without it.
- In the United States, you have to register each work with the copyright office to get the same amount of protection for your copyright. The work is technically copyrighted even if you don’t register it, but you can’t legally enforce it if the works aren’t registered.
- An illustration itself can be copyrighted, but not the idea behind it. Someone could copy your concept and make it in a different style and there’s nothing you can do about it.
- Your style can’t be copyrighted. If you have a unique, secret recipe to your illustration style and someone figures it out, you can’t do anything about it.
- Your copyright lasts your lifetime + 70 years after you are dead.
- If you are the copyright holder of your illustration, you are in control. When you sell, or unwittingly hand over your copyright, you no longer have any legal say in how the illustration is used.
Originals vs Reproductions
If you send a painting to your client for them to photograph and reproduce, they are not entitled to keep the original. The use of the image and the ownership of the painting are two different things. If they want the original, they should pay for it.
The copyright symbol
You don’t need to use the © symbol on your work, but adding it can serve as a reminder to people who aren’t familiar with copyright that they shouldn’t share the work or use it without your permission (people often assume that they can reuse any image they find online). You don’t want to ruin your illustrations with the © symbol, but you should have a copyright notice on your website to say that all the illustrations are copyrighted. Often copyright infringements are innocent and a result of someone simply not thinking about it. Adding a notice can save a lot of hassle. A copyright notice should include your name and the year of the artwork creation.
Creative Commons
If you do want to share some your work for collaborative purposes, Creative Commons licences offer a simplified way to share creative works using a set of rules that outline how a creator wants to share their work and which rights they want to reserve. It could be as simple as wanting to be credited for your work, or you might want your work to be shared, but not for commercial profit. If you don’t like the idea of people changing your work in any way, there’s a licence for that too.
Learn more about Creative Commons licences here.
Why should you keep your copyright?
Understanding copyright for illustrators is essential, it’s how you make money. Without it, you couldn’t make a living as an illustrator; people could use your illustrations without having to pay you or credit you.
If you make an illustration for a magazine, a standard editorial licence will grant the publisher exclusive use of the illustration for about 90 days. If another magazine comes along a year later and wants to use that illustration for something else, you can make more money out of it with a reuse fee.
Some clients don’t know anything about licensing. They assume that if they pay to commission and illustration, they own the artwork and can do anything they want with it. This is not the case with ‘artistic’ works: a musician will be paid every time their song is used for a TV advert, a playwright will be paid every time their play is performed, and illustrators should be paid every time their illustration is used. Illustration adds value to magazines, books, websites or whatever else it is used for. You should be paid for it.
Set this out right from the start and save yourself a headache, especially with independent clients that may have no idea about copyright and licensing.
Explain that the illustration can be used for a particular purpose, in a certain region for a certain amount of time that you and the client agree on:
This illustration is licensed for a printed brochure cover, in the UK only for 2 years for [x] fee.
If the client wants to use the illustration for longer, for another purpose or in another country, they should pay more.
Companies that use illustration frequently, like magazine publishers, know the rules, but don’t necessarily play by them. Their contracts may state that the copyright is transferred to them when you sign on the dotted line. So make sure you raise this issue from the start. Find out what licence your client wants, or whether they are trying to take your copyright away from you. Often clients will send contracts at the end of a job. Don’t end up being surprised by unfavourable terms. If you are, you want to be able to refer back to an earlier email where you agreed to terms you are happy with.
Rights Grab Contracts
Rights grabbing is when a client sends a contract to a freelancer that either transfers the copyright to the client outright, or increases the extent of the license they require to cover ‘all media’ or a ‘perpetual licence’ but without a proportional increase in the fee. This means the client can benefit financially from reusing the work in the future, or even selling the copyright later down the line.
I read contracts every day and more and more have clauses in them which transfer the ownership of artists work to the client, meaning you will have no legal claim to your own work if you sign.
Legal language can seem like it’s specifically designed to be difficult to understand. Every ‘rights grab’ contract seems to have different ways of saying the same thing.
Here are some real examples of rights grab wording to look out for in the intellectual property clauses of a contract:
In consideration of the the sum [x amount] you hereby sell, assign and transfer to [client name] all of your right, title and interest…
You hereby agree and understand that all works (and derivatives thereof) constitute ‘works made for hire’.
It is agreed that the works shall be works made for hire within the meaning of the U.S. copyright act. The Company shall own all right, title and interest in the works, including all copyrights and other intellectual property rights.
You irrevocably assign to [client name] with full title and guarantee, by way of present and future assignment, all of your legal and beneficial rights, title and interest in the work.
The supplier waives any moral rights…
Contractor grants the client an exclusive, fully paid, worldwide, royalty free license…
You hereby grant [client name] an exclusive, irrevocable and perpetual license to reuse the commissioned work.
(The last two don’t actually transfer the copyright, but the client can do whatever they want with the artwork, and it’s exclusive so the artist can’t ever use the work again.)
If you learn what to look out for, you won’t accidentally sign over your property. You can make your own choice about what to do next: turn the job down, try to negotiate the terms, or ask for more money.
Try to resist these terms for your own good, and for the good of all illustrators; after all, if clients end up with vast libraries of illustrations they own, they aren’t going to need freelancers anymore.
Exceptions
If you want to work for huge corporate giants like Google and Facebook etc, get used to handing over your copyright. The client should pay significantly more for the transfer of copyright. It takes into consideration all the things the illustration could possibly be used for over the next 70+ years – no easy thing to calculate! The Association of Illustrators has some useful guidelines on this subject, but it really comes down to what you are willing to accept, whether that’s double your usual fee, or 10x.
Sometimes, though, that big client won’t offer you any extra money. They have all the power when negotiating with a young illustrator eager for some exposure – you can take it or leave it as far as they are concerned.
It is a completely personal choice. The integrity move, of course, is to stand your ground and say no, but they’ll just find someone else who will say yes. You’re not going to change the way big companies do business, so ask yourself what is important to you. While you won’t get any thanks for taking the integrity move, if every illustrator did it, the companies might have to change, but it’s not an ideal world. If you need the money or you see a chance to advance your career, that’s your choice, no one else’s.
See more of Owen Davey’s work here and follow him @owendaveydraws
This is a great article! I just wonder what can we do when our work is stolen and used without permission?
And do we have any power if it is done on social media?
Thanks for the interesting read!
That’s a big subject and I will write more about that for sure! Unfortunately, if your work is good, at some point someone will copy it. I’ve found that most of the time, a correctly worded email goes a long way. Sometimes people don’t know that they are infringing on someone else’s copyright, and an email can help them realise that, but there are some people that don’t care, unfortunately. Send me an email with the details on the contact page and I’ll get back to you. Thanks!
Thank you for this. It is very informative and helpful. Can I ask then what about your thoughts specifically on food packaging illustrations? I have been getting conflicting information. Some people have said that it shouldn’t be done, as the illustration is still recognisable as the food packaging. Others have said that its ok because it is an artistic representation (although the ones that have said this are the ones who are selling food packaging illustrations). I assumed no because the food packaging design has been trademarked, but I just wondered your opinions. Thank you very much. Regards.
Good question! In my personal opinion (i’m not a lawyer) I think it depends on the detail. Most packaging isn’t trademarked, because a box or drink can is usually a very common shape. Only very distinctive packaging can be trademarked, like the original Coca Cola bottle or Toblerone for example. The shape is iconic and important to the brand. Logos are trademarked however, and shouldn’t be copied for a commercial artwork, unless it’s part of a review, or journalism (see: Fair use) – An illustrator could draw the logo/ packaging if the article is a story about the company or product. If the packaging contains another artists work though, it shouldn’t be copied. An illustrator can draw something that looks like Heinz tomato ketchup without putting the logo on it, but if you draw the logo, make it look like the Heinz bottle and then sell the artwork as prints or t-shirts, then you are infringing on a trademarked design. If in doubt, ask your client if they have the legal clearance to use the packaging, then the blame isn’t on you if there’s a problem.
Thank you for your swift and thorough reply. It is interesting to hear your opinion. Keep up the good work, I look forward to reading your other posts.
I had a company recently approach me on my Instagram and ask for me to send my Illustration of their product to them so they can share it on their social media and that they would “tag me”
What would be the best wording to ask for money? I did illustrate their product, but I did it in order to try and make money in the long run. I can’t really live off likes and shares, you know?
Great to hear they like what you’ve made! That’s a win in itself, but yeah, likes and shares don’t pay the bills.
Without knowing any details i’d say you definitely should ask, but depending on the client they may not see why they should.
If they have a decent amount of followers and you think it is genuinely ‘good exposure’ (i hate that phrase) then it may well be worth doing anyway. I’ll drop you an email to get into the details.
If one uses a photograph that’s posted on Pinterest with no identifying name or copyright and I convert the photograph into a charcoal illustration in B&W to use in a book chapter is that going to be a problem. Had I known the original artist I would have no problem asking permission but 1. Isn’t that opening up anyone to use it once it’s uploaded to internet ? 2. Is a charcoal illustration enough of digital manipulation to void any legal problem? In US
Hi Michael, Just because an image is online with no credit, it does not mean it isn’t protected by copyright.
If you had made your own real life charcoal drawing using the photo as reference then you would probably be fine, but a digital manipulation is often not enough.
See Shepard Fairey’s Obama case
Thank you. Really helpful. I’m new at licensing my illustrations so and appreciate the plain English wording!
I just want to clarify – are you saying that any illustrations are automatically copyrighted in the Uk and that it is not necessary to complete a copyright registration form from the UK registration certificate office – even if you plan to publish work?
Sorry just want to double check you see, as everyone is telling me to copyright my instagram account and art work.
That’s correct. If you created it, you own it. in the UK you don’t need to fill out any forms.
Thank you so so much I was getting a bit worried this is a great post!
So I guess it is good to put my illustration name on my work so it is clear it is mine – but that is all – thank you!
Do illustrators need to trademark their name or is trademarking more for trading companies do you think?
Thank you again for your help i was not expecting a reply – defiantely not such a fast one!
Very Informative,.
Thank you,
Rollin
I use napkins for decoupage. I am getting totally confused as to which designs I can use for resale as it seems to depends on the type of copyright. One publisher I contacted didn’t care about any of their designs being used as they wanted to sell as many napkins as possible, another wanted to charge £50 license per image for a year. eBay and Esty napkin sellers do not make it clear which designs can be used for resale although they know most buyers are using them commercially. Any clarification would be great
That is a tough one! You really need to know before you use them in your work. It’s not necessarily the big napkin corp that’s losing out, it could be a pattern designer (someone like you) that is not seeing commission on their design being used. I know it’s not a great help if you’ve already used them, but perhaps in future contacting the actual producers of the napkins to see what their deal is before you buy them would be a good idea. It’s a lot of hassle, but kudos to you for even considering it. Most wouldn’t!
Thanks for the reply. Yes it will be a hassle but probably best practice as it’s a bit of a mine field
Thanks agsin
Thanks for the info on this.
If I have artwork that was created in my leisure time say over a year ago that I would like to use for licensing as digital files for printing on t-shirts by a t-shirt manufacturer, do I used an ‘Acceptance of Commision’ contract or do I need a different type of contract seeing that they are artwork that were already created a few years back? All in all, I just want to use some old artwork I created and see if I can get companies to license them on t-shirts.
Maybe an ‘Acceptance of Commision’ contract is enough.
I’m not sure ‘Acceptance of Commission’ is quite right, possibly something like this which is a royalty contract, or a product licence agreement which outlines what the client can use the design for and for how long. More info here
Hi, James. I’ve been looking at the ‘Royalty contract’ in regards to a client paying licensor an advance, and was wondering what it meant by. “This advance must be recouped before royalty payments commence.” I’m a bit lost.
An advance against royalties can also be known as a ‘guaranteed minimum royalty’ which may help explain. Imagine you get 5% royalties on a project along with a £5000 advance. You get the guaranteed £5000 advance straight away, but further royalty payments wouldn’t be received until your 5% exceeds £5000 – In this case the book would have to make over £100k for you to receive any more royalties.
Thanks for your response and break down. Sorry for the late reply. If clients are paying you through the bank, do they need just your account number and sort code or is there anything else to add?
As far as I’m concerned if it was uploaded to the world wide web without any stipulations or copyright or watermarks it’s usable available to use freely. If the artist did not intend to have his work used by others then he should not have uploaded it in the first place.
You’re wrong.
Hi James, this is all great information. I have recently started doing embroidery artwork that had led me to turn into lovely drawn illustrations that i absolutely adore and am too frightened to share for fear they will be copied. The embroidered work is extremely popular and i have been asked if they could buy a finished embroidered piece made by me. I have also seen comments that people want to make it themselves. I am happy to make them but again I am worried the pictures will be copied.
The collection of illustrations that i draw i have been adding more to everyday. If i were to copyright the collection i currently have do i need to get a new copy right for each additional illustration i draw afterward? I would like to self publish a book (photo book that i can then sell) and am unsure if doing so is wise even if i get them legally copyrighted. I’m quite lost in all this because i do very much love my work as it is like my baby and i don’t want it “kidnapped!”.
Kind Regards
It’s a common problem. If fear of having work copied held every artist back, then the world would look a lot less fun. Every great artist I know has been copied to some degree or at least inspired similar work. Don’t be precious, share your work and keep making new work. If someone wants to copy you, just make sure you are always producing better work. If someone wants to make the designs themselves, why not make a tutorial? Or a pdf ebook you can sell? Own it and then everyone knows where the originality comes from. The alternative is that you keep the work to yourself and nobody is getting any benefit from that.
Thank you James for the quick reply. I have a lot to ponder now.
This is all really interesting stuff, thanks for the info 🙂
Where does an illustrator stand legally in regards to producing likenesses of celebrities, or sports stars who look to protect their image rights? Are the rights of this type of artwork with the creator or subject?
See ‘Fair Use’ here: https://theillustratorsguide.com/copyright-infringement/
If you’re making portraits for magazines, it’s probably considered fair use under reporting or reviewing, more likely parody in your case Martin. If you are making portraits of celebrities and selling them yourself as prints or original artworks for profit, technically you should be paying the celebrity.
Thanks a lot, I am writing a confirmation of assignment and noticed I was giving away the rights to my work, luckily I found this and now know exactly what needs to go on the contract.
Very useful. What about illustrations of city maps and landmarks? Let’s say I am going to draw the Empire State building or a map of New York. Do I have to obtain permission from the city of New York or the owner of the landmark before I can create an illustration for commercial purposes?
Great question! Buildings can indeed be protected by copyright, however, there are specific exceptions for buildings under the Copyright, Designs and Patents Act 1988 (in the UK) and 17 U.S. Code § 120 (in the U.S.A).
The reason being that these designs are on public display, permanently. You can make artworks of/take photos of/film publicly displayed buildings, you just can’t make your own building of the same design.
Hi, This is such a useful post!
I was wondering, say I was selling some illustrations on Etsey, and i get offered a commission and i want to include some of those illustrations – is it okay to continue selling those illustrations on Etsey? Or is this something i would need to discuss with the client?
Can a client have the right over that illustration and i can never use it ever again for myself in the future? If you could direct me to some information about this I would be so happy!
Thanks again for all your help!
I think the first question is: Will your client be happy if you have reused old illustrations instead of creating something new for them?
If your client wants a non-exclusive licence for the illustration you are making, then technically there’s no issue, but if they expect something custom made specifically for them, they won’t be happy about seeing parts of that work being sold on Etsy.
Make something new and your problem is solved.
Hiya! Thanks a lot of this.
Could I just ask please, For commercial purposes, are illustrations of popular cartoons copyright infringement even if I’ve put a particular spin on them like changed their clothing, or changed certain details of their appearance?
They will all be copyright protected characters. Changing their clothes isn’t going to cut it. They would have to be pretty much unrecognisable for you to be able to use them. Safer to stick to work you have invented.
Hey James,
It is a very useful information! Thanks a lot!
Some of my client asked me for a Buyout license. And I am looking for a template for it. Probably you know where it could be find?
Since I didn’t found any good samples in web.
It would be very appreciated!
Hi Ivan, A buyout agreement is very simple, it means the client owns your work completely, you no longer have any right to use it, unless they give you permission. It is not great for an artist to make this kind of deal, but if the client is willing to pay enough to convince you, then all that really needs to be said in the contract is something like: “On payment of the agreed fee, copyright will be assigned to [client]”. If there are opportunities to negotiate a licence where the copyright stays under your control and the client can use it for a fixed amount of time, it may benefit you in the long term. They could relicense the images from you when the term expires for an additional fee. However, I understand that some clients demand it. It’s your choice.