Copyright for Illustrators

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