THE COVER ARTIST/ILLUSTRATOR AGREEMENT
Ivan Hoffman, B.A., J.D.
The single biggest mistake made by publishers and authors is their failure to acquire exclusive rights to the work of cover artists and illustrators. The single biggest mistake! The failure to do so not only signals a total lack of entrepreneurial vision but also results in the likely loss of substantial monies.
In what appears to be a frequently occurring situation, publishers seem to pay cover artists and illustrators to do work on the publisher’s books without having a legally sufficient writing covering the issues about who owns the rights to the artist’s/illustrator’s work as well as other important provisions. Or no agreement at all. In such a situation, the publisher loses and the artist/illustrator wins. I will, in this article, refer to this legally sufficient writing as an “agreement” but it does not necessarily have to be a formal agreement or writing although it is much, much better to have a formal agreement. Read “The Work Made For Hire Agreement: Further Issues (Revised 2018).” But see discussion below about work made for hire agreements. Also, for brevity, I refer to “publishers” but it includes authors or other parties who engage the services of cover artists and illustrator.
Here is the basic premise of the United States’ copyright law: the creator of any copyrightable work owns all rights in and to that work unless, if there is to be an exclusive transfer of some or all of those rights, there is a sufficient, written agreement, signed by the creator, transferring some or all of those rights to another. And the publisher always wants exclusive rights since non-exclusive rights may be not worth very much. Non-exclusive rights may be transferred orally but there still must be some form and evidence of an intent to actually transfer any rights. That agreement can be oral or written but if the publisher is to acquire exclusive rights, it must be written and signed by the creator. Read "The Fundamental Principle Under The United States Copyright Law." It is so important an article that it is at the top of every table of contents page on my site.
This means that if you, as a publisher, have not entered into a legally sufficient written agreement with your artist/illustrator, you as the publisher may not own any exclusive rights in and to the work done by that artist/illustrator. And without exclusive rights, you may not be able:
And what all that means in sum is that you will be losing out on a substantial opportunity to make money from the book.
BUT I PAID FOR IT!
The response of many publishers is "But I paid the artist for the work. Therefore, I must own it."
And the response to this response is: merely paying for the work creates no right of ownership of the rights in the work. The mere ownership of the physical embodiment of a copyrightable work does not create the ownership of the underlying rights in that work. That is more basic United States copyright law. There must be evidenced an intent to transfer rights, whether orally or in writing. Thus, the best evidence of that intent is a written agreement. But here again, what is important is not merely “an agreement;” it is an agreement transferring exclusive rights. And in that regard, the language is key. Read the various articles on my site under the title “Precise Contract Language” and "A Legal Nightmare." Click on “Articles for Writers and Publishers.”
Moreover, if you read what little paperwork is often generated in this type of transaction—an invoice from the artist/illustrator to the publisher—you may find an express statement to the effect that the artist/illustrator retains all rights to the artist/illustrator’s work. And even if there is no such statement, that is the effect of the United States copyright law because there is no express transfer of rights in a valid, written, signed agreement.
Additionally, what also seems to occur is that the publisher wakes to the fact that the publisher needs an agreement after the work has been done and after the money has been paid to the artist/illustrator. In my experience, coming then to the artist/illustrator and trying to get that artist/illustrator to sign an agreement after the fact is often quite expensive compared to the deal that could have been made had the agreement been done in advance of the work being done and the money being paid. And indeed it is often very difficult to make any deal after the work is one.
WHAT KINDS OF WRITTEN AGREEMENTS ARE NECESSARY?
The artist/illustrator’s contribution can perhaps be the subject of a work made for hire agreement if the publisher "specially ordered and commissioned" the artist/illustrator’s work but only if the artist/illustrator’s work falls under one of the legally acceptable categories of work made for hire situations, and that the agreement is sufficient in language to qualify as a work made for hire. I am leaving out of this discussion situations in which the artist/illustrator is a bona fide employee of the publisher since that is generally not the situation. But preparing a work made for hire agreement requires certain very specific language and you should read "Work Made For Hire Agreements" and "Playboy and the Work Made for Hire Agreement" for more of the details. HOWEVER, you have to be further aware of the provisions of California law governing work made for hire agreements and both workers compensation insurance and unemployment insurance. Read "The Stupidest Law Ever Enacted."
The agreement between the artist/illustrator and the publisher may also be a transfer of some or all of the rights but it must be sufficiently broad to include language transferring these rights to the artist/illustrator’s work exclusively to the publisher, if that is the intent of the parties. And the rights must be clearly set forth, in express language, so that both parties understand the meaning of the transfer. An agreement is supposed to solve more problems than it creates and if the language is vague and uncertain, the agreement may become the source of dispute and litigation, thereby tying up the rights for a long time. In this situation, however, the rights being transferred may be subject to the termination of transfer provisions of the copyright act. Read the numerous articles on my site under the link “Terminations of Transfers.”
In these agreements, and in the underlying deal, the artist/illustrator can adjust his or her price to reflect a larger transfer of rights to the publisher. This can be in the form of a flat fee, a percentage of the rights exploitation or some variation on those themes. Therefore, this type of transaction is one in which both sides can win. But the publisher must be given the exclusive right to control, administer and exploit the rights even if the artist/illustrator participates in the income from such exploitation. Without this exclusive right to administer, all parties have a potentially confusing situation, one in which both sides may exploit the rights and the net effect is that neither side can effectively do so.
Publishers frequently seem to approach their relationships with artist/illustrators without the benefit of a valid, written agreement. This can only inure to the benefit of the artist/illustrator and to the detriment of the publisher. It can lead to confusion and uncertainty and the work and the underlying book, may become unmarketable. This one-sidedness can be avoided quite easily by the simple exercise of sound and wise business planning in the form of a valid, written agreement.
Some words about being an entrepreneur:
Keep in mind that in the business of intellectual property rights, which is the business you are in, legally appropriate agreements and a proper legal foundation are not add-ons to your business, not something you do if you have any money left over; legally appropriate agreements and a proper legal foundation are your business. Without a thorough and valid agreement and proper legal foundation, what you have is nothing but an illusion and a house of cards. It only appears you are in business but in reality, you are not since given a controversy between you and the other party, the house of cards can collapse and you risk losing your rights and the money that goes along with those rights. If you are going to run a dress company, for example, an essential expenditure might be machines to manufacture those dresses. However, in the intellectual property business, an essential expenditure is a high quality intellectual property attorney. Thus unless you budget for attorneys fees in a realistic amount, the amounts you spend on the other areas of your business are potentially put at substantial risk. Further, you may put yourself in a lose-lose situation: if your project is a failure, you lose. But if your project is a success (or even if it is not), you may find that the other party, not you, ends up making all the money or you may open yourself up for more claims than you can even imagine and in which event, you lose because you pay all your profits to lawyers and/or damages to the offended parties. What kind of a way is that to run a business? It seems self-evidently self-defeating.
If you are a publisher, protect your rights and have such an agreement drafted by an experienced attorney before you start paying out any money.
Copyright © 1998, 2018 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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