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Apr 16th

Contracts at the end of a project?

You should always be reading contracts carefully, but if you receive a contract after a project is finished, you should ask yourself why.

You should always be reading contracts carefully, but if you receive a contract after a project is finished, you should ask yourself why.

It could be as simple as the Art Director forgetting to send it earlier, and the terms line up with what you discussed. In that case, It’s no big deal.

However, it could be that the client is adding terms to this contract that you haven’t discussed. Particularly for illustrators, or other visual creatives, ownership of your work is the first thing to look out for in a contract. If the contract assigns your intellectual property to the client, you have a problem. If you don’t know why keeping your copyright is important, read: Copyright for Illustrators

It’s important for you to know that an agreement of terms over email can be legally binding if it contains a few key ingredients. Recipe at the end.

I recently received a contract for a project that started two months previously and ended within four weeks. The contract came from a client I like, and not a client I consider to be sneaky in any way, but my impression of this company comes from the chatty and friendly art directors I work with. They are not necessarily a representation of how the company as whole acts or thinks. You might gain a great relationship with an art director or designer from a company, but they may not even know that their company’s contracts are very unfair to illustrators.

This particular project was for one illustration to be used in a few different ways, with a very flexible licence. The client was not restricted in any way and the artist was fairly compensated for the agreed licence.

A month after project sign off I received a contract which would assign all the artist’s rights. My friendly relationship with the AD and my general positive impression of the company could have very easily caused me to overlook this detail. The fact that the contract had arrived so late made me suspicious, however, and rightly so.

My response:

Hi [client],

Thanks for sending this contract, however, it’s two months late. It should have been sent at the start of the project.

It also has terms we have not discussed or agreed to in it:

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Is it usual practice for [company] to try to grab rights from artists after projects have finished?

We will not be signing this. 

[company] has the licence to use the artwork, but the artist will remain the copyright holder.

I look forward to your reply.

Kind regards,

James

This was a firm and clear response to what I consider to be an unacceptable way of doing business.

It is not clear to me whether the Art Director knows about these terms, maybe not. Their reply was very apologetic. It is, unfortunately, also possible they knew about the terms from the start and simply didn’t tell me.

I understand a firm (and vaguely passive-aggressive) response like the above might be out of the comfort zone for some. I like to think I have the experience to know when it is appropriate to be firm and when a softer response is needed, so don’t do anything that makes you feel uncomfortable. However, it is important to be clear, polite, and not to be scared to speak up.

Often these contracts can be adjusted fairly easily. If you have terms previously agreed to in an email, send them with your concerns and ask that they are adjusted to reflect what you had previously agreed. 9 times out of 10, that will work.

Whether someone is actually to blame for being sneaky, or if it’s just a standard template contract the company uses is unclear.
Sometimes I think they’re just taking a chance to see if they can get you to give up your rights without noticing. It’s certainly not the art director’s fault, or probably anyone you are likely to speak to in the company, just company policy – ‘The Man’. So be clear and polite, and don’t get angry about it. It’s your responsibility to be vigilant and look out for these things.

If the client says they won’t pay unless you sign, remember that legally speaking, you are in the right.

If you are so inclined, you could see this as an opportunity to ask for more money. If they want the rights, and you are happy selling them, why not tell them how much it will cost if they want the rights? You might get it.

A note on NDA’s

Non-Disclosure Agreements for illustrators should be simple, an agreement by you not to disclose any confidential details of a project. This is how tech companies, movie studios or advertising agencies etc can ensure their ideas aren’t leaked to the public before they are ready to launch their new product, movie or campaign. It’s fair. If you agree to work on a confidential project, you agree not to leak any information. Occasionally, however, NDA’s will sneakily include a rights grab paragraph like this one:

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This means any work you create during the course of this project automatically becomes the property of the client.

This goes for purchase orders too, or anywhere you might find small print from your client. Always make sure you read the intellectual property section. Also, keep an eye out for any term relating to ownership of original artwork if you are an analogue artist. If the client is paying to license your work, they do not own the original artwork. They can buy it separately if they want it.

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Here’s another example:

This contract this example relates to was sent about halfway through a project. As you can see it says they will not pay unless the contract is signed. It also says if you deliver roughs for the project, that will be taken as your agreement to the terms. They simply cannot uphold this when they sent the contract after the delivery of roughs. This example is from a major publisher that works with hundreds, maybe thousands of illustrators a year. Many of them won’t dare say anything about this, many of them won’t even notice it. They can’t enforce this, so stand up for yourself. Be clear, be polite, and guard your intellectual property.

To summarise, summarise.

If you have agreed on terms in writing/email, that in itself is a legally binding contract. Any contract sent after that should reflect the terms you’ve spoken about previously. If you find something new or unexpected in there, you need to be able to refer back to your previous discussion on rights and licences etc. So, before you begin work on any project, make sure you discuss licence terms and summarise them in an email to the client, or use something like the AOI’s Commissioner Agreement Form, that way you have your terms clearly set out in writing for the client to agree to. If they don’t agree at this point, at least you’re finding out what kind of client they are early.

Whether it’s a 20 page document or a short email, a contract is formed when (1) an offer is made (client asks you to work on a project). (2) You accept that offer (3) There is a trade of something of value (money) for something else of value (your work) This is referred to as consideration. (4) There are clearly defined terms (licence, key dates, fees, etc) and (5) There is legal intent, or intent to enter into a legal agreement between both parties. Discussing licensing of intellectual property is a legal issue.

If you have this summary before you start work on a project and you are later surprised by a contract with unfavourable terms, you are under no obligation to sign it, you can simply refer back to this agreement. If you don’t have all this information covered early, you leave yourself in a grey area where the client didn’t specifically see or agree to your terms.

If a dispute arises, It’s a very satisfying feeling being able to show a client written terms that they have agreed to. They simply can’t argue with that.

See more of Andrés Lozano’s work here and follow him @andreslozanom

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