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Re: Who Owns the Design?

Ace Contributor
Teddi B Member Since: Aug 2, 2015
21 of 28

This article may help. I learned that book cover designers are considered work-for-hire. Still that doesn't mean that the client owns the design. 

 

https://www.charmcitylegal.com/book-cover-art-ownership-use-copyright/

Active Member
Jacob G Member Since: Jul 23, 2018
22 of 28

I know this is an old thread by I wanted to ask about this issue as it is something that I was wanted about by other freelance illustrators when I said I might be using Upwork. They told me to avoid using Upwork due to this legal aspect.

I was really shocked by this as everything I was taught at university told me that you should avoid as much as possible ever signing over the full rights to your illustrations. I would be a very special case and one where you charged a substantially higher rate for them to be able to buy out the whole illustration.

Even just agreeing for the illustration to be used in additional countries or further print runs makes for a higher free. The fact that upward already takes 20%, then charges you to buy additional ticks, then with the ‘race to the bottom’ that seems to be the case on most of the jobs I have seen, especially as I am starting out, means that there is no way that the correct price is being made for freelance illustrations.

It means that there is a whole generation of people who did not study illustration, and companies who have not used illustrators before, who don’t realise they are being ripped of or vice versa.

I’ve seen a fey mentioned from people in this post that asking for standard illustration rights that you would expect outside of Upwork will “scare away prospective clients.” This just makes me very concerned about the kind of clients that upward is likely to attract. I’m still planning on using Upwork for a few jobs, but I very much down when I sign back up with the Association of Illustrators next moth and they will be recommending I use the sight long term now I’ve discovered this legal default.

The point of an agent is to back up the freelancer. That is after all what the commission is for, that and finding the work. But it just seems that Upwork is defaulted legally on the side of the clients, which seems completely the wrong way around.

I was simply hopping you could elevate my fears, and see if any other more experienced artist could chime in here.

Ace Contributor
Teddi B Member Since: Aug 2, 2015
23 of 28

This is a very old post and you might want to take the time to review Upwork's Terms of Service for yourself.

 

How you handle the rights to your work is between you and your client.

 

Upwork isn't an agent. They're an online platform that connects freelancers with clients. Clients and freelancers aren't like t-shirts—one size doesn't fit all. It's up to you to find the kind of clients you want to work with and the jobs that match your skill set.

 

Personally, Upwork has been a very positive experience for me and a great benefit to my business.

Community Guru
Virginia F Member Since: Feb 15, 2016
24 of 28

Upwork is not acting as your "agent" ... and the fee is not a "commission". You're an independent freelancer/contractor, using a service that merely enables the opportunity to connect with clients.

 

Freelancing online is not the same as selling artwork in the real world. I won't speak to the legal issues you're concerned with, but I believe you're confusing real-world terminology that does not apply to online freelancing. Clients are not going to use this site without agreements in place that state what they're getting for their money. If someone needs a book cover illustration, then of course they don't want that same artwork showing up on posters being sold in unlimited numbers. It's no different than when a designer creates artwork for a client logo - it belongs to the client and can't be used anywhere else (except your portfolio if the client agrees to that).

 

I guarantee clients do not think you should continue to make money off of whatever they're selling with your artwork on it. They paid for it, it belongs to them. If you were to put restrictions on how your artwork can be used, I doubt clients would agree to those restrictions.

Active Member
Jacob G Member Since: Jul 23, 2018
25 of 28

When calculating the cost of a commission I was always taught that this is not how illustrations works however. The illustrator retains the rights to the artwork and is simply licensing it to the client.

Factors include:
Usage- A product for a wine bottle will be charged less than for a Television add.

Geography- The licence will be based on the number of countries is will be used in. A worldwide license will cost more than one only shown in the UK.

Time limits- You sing the license for the work for a limited time. The longer the time frame the larger the fee. If they come back and want to use it again in the future, they have to sign a new contract and pay a new fee.

Exclusivity- Are you allowed to sell prints of your artwork on your online shop? This is a large revenue steam for illustrators and if you are not allowed this then the fee should be higher.

Number of copies- The larger the print run the more varied the fee, this one again is something in the contract.

Additional rites- such as being able to request alterations, add text over the top from a graphics designer, to use it on their website as well as their book cover and other promotion.

Work for Hire-
I’ll quote this directly from the bellow website.

“Speaking of all-rights buyouts, we should also talk about Work for Hire. Some clients will try to commission you under a Work for Hire agreement. What this means is that they will own all the rights to the work, including the copyright and maybe even your original art in some circumstances. Your name may not even be associated with the image. In a Work for Hire agreement, your fee should be considerably higher to account for these things.”
http://businessofillustration.com/pricing-your-illustration-work/

Such contracts are to be avoided in the Illustration industry and are considered to be bad form if they are the default. Wizards of the Coast for example has gotten a lot of complaints due to adopting this policy.  For some companies it is reasonable for a Work For Hire arrangement to exist. For example if I did the Illustration for a large shopping companies brand logo. I would expect that to be the case. But I would also expect to charge a substantially larger fee. This might change a £3,000 fee into easily a £5,000 fee.

I’ll give you another quote from an Association of illustrators interview with the Handsome Frank agency.

“Another concern, which again I think is mainly a US thing, is engaging an illustrator on very general ‘Work for hire’ contracts. (Work for Hire is an American legal term which means that the client is the legally recognised creator of the commissioned work and owns all rights in the work (effectively a copyright assignment). Work for Hire is not recognised under British law, however if the phrase appears in a British contract alongside wording stating that the rights in the commission will be assigned to the client as a copyright assignment, then unless challenged, the commission becomes a copyright assignment. Often a Moral Rights waiver is added alongside copyright assignments so the artist does not have to be credited and the work can be adapted without them being able to say that it negatively affects their reputation.)
Such contracts are not really designed or suitable for working an artist, they’re typically designed to be used when hiring freelance admin or IT professionals. So it’s important to flag with the client when you’re sent a generic contract which isn’t appropriate for the services you’re offering. Nine times out of ten it’s just an oversight and a bespoke contract is sent in it’s place.”
https://theaoi.com/2018/07/19/handsome-frank-agency-talk-illustration-pricing-and-licensing/

Though I agree that default contract might be fine for someone who is doing proof reading or something else, it is set up poorly for illustrators. You might “guarantee” me that it is different, but everything every professional illustrators has taught me says that this is not the case.
Again from the same interview.


Why is licensing a commissioned image so important?


Retaining the rights to an image is incredibly important for an illustrator, because over time it opens a potentially huge secondary revenue stream for them. By retaining the rights, and building up a library of images that are commercially available once existing licenses expire, you have a way of monetising your previous work without having to create new images.


Licensing tends to come about one of two ways, either a client will see an existing image which is perfect for their requirements. They fall in love with it and if it’s available to license then the illustrator can agree a fee and grant a license with out having to do any additional work. The second scenario we see, is when a client wants to commission an artist but they’re too busy or unavailable to work to the clients deadlines. In this case we would look back through the artists folio of work and suggest some images which might work instead.
The great thing about licensing are that it allows you earn more income without having to create new work – but also the longer you work in the industry the bigger your back catalogue of images becomes. A bigger back catalogue obviously increases your chances of having an appropriate image for a client’s requirements.”

I jsut get the idea that the people at Upwork don't know much about the illustration industry. And it puts me off using the site to find any illustration work. It will be fine for concpet art jobs as those are Work For Hire, but having to teach cliants that the default UpWork contract is wrong and why they need to pay more is jsut ahrd work.

Community Guru
Preston H Member Since: Nov 24, 2014
26 of 28

re: "I just get the idea that the people at Upwork don't know much about the illustration industry."

 

Upwork isn't an illustration industry website. It's not an illustrator website.

 

Upwork is a general purpose freelancer platform.

 

If anything, it is a programmers/developers website that lets illustrators use it.

 

re: "but having to teach clients that the default Upwork contract is wrong and why they need to pay more is just hard work."

 

You don't have to do this hard work if you don't want to.

Ace Contributor
Cairenn R Member Since: Feb 18, 2019
27 of 28

Being a former Copyright and Trademark Paralegal, I can confirm for you that once you receive payment for a project, you no longer own the design and do not have any claim of copyright. 

A lot of clients will pull random "contract samples" off the internet which are choppy and generalized. 
For that reason, they sign my contract, I do not sign theirs. I keep control of the terms so there is no confusion.

On or off UW, as a freelancer, you "work for hire". Don't get me started on Trademarks. 

Highlighted
Community Guru
Kim F Member Since: Aug 26, 2015
28 of 28

On or off UW, as a freelancer, you "work for hire". 

 

If that's what your contract says. I've just agreed a contract giving me an advance on sales plus royalties AFTER I was paid a flat fee for the original copy. 

 

Although working for hire may be the most common scenario, it isn't a rule.