Proposed FAQ for furry artwork commissions contract
Conrad Wong
clear to the customers what rights are sold or not sold with a
commission, and so customers become upset if they see what they
imagined to be their exclusive property for sale as a print.
Contrariwise, artists understandably would like to make sure they are
fairly paid for any rights they yield to these 'secondary' income
sources, and that they are in turn, if not knowingly performing work
for hire, entitled to profits from publishing of their art. And if
they've simply been doing what other artists do and taking money while
providing art, without thinking that they need a contract, any
legal argument can come as an unwelcome surprise.
So I'm thinking that what we need is a monthly FAQ for artwork
commission contracts: customers are better educated and artists can
give customers boilerplate text to look over.
Since this is the proposed version, I'd like to get feedback before
asking PeterCat to set this up for a monthly FAQ. Are there any
changes y'all would suggest out there?
-- Lynx
The Art of the Artwork Contract
If you've ever considered commissioning an artist but worried that they
might not live up to their end of the bargain, or if you've entered into
a commission but then found yourself at odds with the other person in the
arrangement as to who has the right to publish artwork and who does not,
then this may be the document for you.
This contract is an attempt to cover the basic rights and assurances
and requirements that all formal art commissions should have. It is not
complete or inclusive, merely a starting point.
In the following, 'client' refers to the customer who is purchasing art.
'artist' refers to the artist who is producing art.
Part 1: The Subject
This is the most important part of the commission: what does the
client want drawn? Any important details should be written out
in the contract, as they become legally binding. If the client
wants a bunny-girl with a rosette of spots on her left thigh and
the artist mischievously puts a Rosetta stone on her leg instead,
the artist has not provided the required art. However, if the client
does not say that the character should wear a certain T-shirt, then
the artist is within rights to claim that the artist has in good faith
provided the artwork asked for, and is due payment.
Some sample questions to help define the subject:
What does the main character look like?
Species?
Height and body type? (i.e. slim, muscular, fat, old and decrepit)
Ratio of head to height? (1 to 7 for superheroic builds, 1 to 4 or 5 for
toony builds, 1 to 6 or 6.5 for a realistic build)
Head hair or not?
If so, what length and in what style, if so?
Plantigrade (human-like legs), digitigrade (jack-legged), unguligrade
(walking on toes or hooves), or otherwise legged in what way?
If winged, are the wings the arms or do the wings join on the back?
Specific fur or color patterns?
Eye color?
Slit pupils or round human pupils?
Four or five fingers to a hand? (counting the thumb as a finger)
Any distinguishing marks?
What kind of clothes does the character wear?
If the picture is colored, what color are the clothes?
What do the secondary characters (if any) look like?
(similiar to above)
Are the characters taking any actions? How should they be arranged?
What kind of background and/or props should the picture have?
(i.e. landscape, inner city, spaceport, ruins, spaceships)
Should the image be in color?
What media? (i.e. acrylics, watercolors, color pencils, color markers)
Should the image be black and white? *
If so, are grayshades acceptable? (ink washes or gray markers)
What kind of toning should the artist use -- halftoning or zipatone
(many small dots in a regular pattern to simulate shaded areas),
hatching, cross-hatching, stippling, or no shading at all to create
an image made up purely of black and white areas?
If halftoning or zipatone is to be used, how coarse should the halftones
be? (most xerox machines max out at 60 lines per inch (LPI))
* These questions apply primarily to images which are to be published in
one way or another. If the art will be displayed on the Web or hung
in one's gallery then grayshades are perfectly acceptable.
What size should the original be?
If the art is to be published, at what final size will it be printed?
Is the artwork to be digital, or digitally used? (i.e. website graphics)
If so, in what format should final output be supplied? (GIF, PNG,
proprietary format image file such as Photoshop 3.0)
If any reference pictures are available that might help the artist draw
the characters or the background, it's highly recommended the references
be included as part of the contractual material handed to the artist. In
particular, if the picture is requested as on-reference and the artist
fails to meet some particular point of reference, i.e. number of turrets
to be found on an A-26 Invader bomber, the picture may be rejected by
the client.
It is not necessary to specify all details in advance, but where the
client asks the artist to go ahead and "make it up", the client then
has no right to deny payment over dissatisfaction with what the artist
produces as long as the known specs are satisfied.
Part 2: Character Rights
Technically speaking, characters cannot by themselves be copyrighted, but
their depictions and descriptions can be copyrighted. From there, if
another picture is made, by the artist or by another which involves the
character to such a point that it is unquestionably the same person
(i.e. if the character is identified as so-and-so, created by the client)
then the work is considered 'derivative' and the owner of the copyright
on the prior work is due compensation.
What this means is:
Is the character created by the client?
If not, permission to draw the character must be secured from the
original copyright holder.
Is the artist to create the main or secondary characters?
If so, who will hold the copyrights to the characters created by the
artist, the artist or the client?
These same arguments also apply to props of a highly distinguishable
nature, i.e. starships from famous science fiction series. Use of
such copyrighted work can place artwork into the 'fan' category i.e.
publication for pay violates the original creator's copyright.
Part 3: Publishing Rights
Most people are familiar with purchases as being 'work for hire': they
pay money, they receive the goods, and the goods are theirs to do with
as they see fit.
Artwork is however, like writing, a creative product that can be
reproduced, and said reproduction can generate additional revenues
for the artist or for the publisher to which the artist supplies the
art. Work for hire is the exception in the art business, not the rule.
If a commission is to be work-for-hire, the artist may well ask for
compensation for the secondary income being denied them.
Some examples of publishing rights:
Is the artist permitted to retain a copy of the art for personal records?
May the artist display copies of the art in their portfolio so that
other clients may see examples of their work?
May the artist display copies of the art on their website for
advertising purposes?
May the artist sell limited prints in art shows and/or galleries?
Does the client intend to publish the artwork?
If so, is the client purchasing only first publication rights, or does
the client also wish republication rights, i.e. to reprint the art
in an archive, or another collection
Do these rights include publication in the US only (or country of the
client) or do they include world-wide publication?
When not otherwise stated, contracts default to work-for-hire; that is,
the client retains all rights unless otherwise stated by contract.
Part 4: the Schedule of Deliverables
A schedule of deliverables is an agreement that the artist will provide
so and so material to the client in exchange for due compensation. This
may be as simple as 'finished artwork by so and so date, to be paid for
by so and so amount of money', but where the amount of money involved
is large or the client or artist fears defaulting on contract, deliverables
may be broken down into smaller components.
Some deliverables:
Will there be an initial payment up front?
Does the client wish pencil sketches?
By what date?
What level of detail is required? (layout, outlines, detailed)
Will there be additional payment on approval of pencil sketches?
Does the client wish a color rough sketch? (if the picture is to be color)
By what date?
Will there be additional payment on approval of color rough sketches?
When is the final artwork due?
What penalty should apply for late completion, if any?
Should the client decide that they do not want the art after all:
To what part of the fee is the artist still entitled for
partial or total completion?
If the client cancels the contract, who retains rights to the characters
and to the art? May the artist resell the image elsewhere?
How will payment be made? (check, money order)
In what currency will the payment be made? (applicable primarily to
where client and artist live in different countries; in particular
it is suggested dollars be specified as US$ or CDN$)
How will the payment be delivered? (by mail, generally)
How will the finished artwork be delivered? (UPS, FedEx, air mail, surface)
Is the finished artwork to be insured?
Note that pencil sketches and color sketches do incur extra time and work
on the artist's part especially as the artist must then wait to hear back
from the client as to whether the work is satisfactory. While they
provide the client extra insurance that the work will meet their specs,
they may also involve extra money, either after provision of the sketches
or at the completion of the contract.
Most contracts are payment up front, art to be delivered by so and so time,
but a good compromise is to arrange a contract as follows:
The client pays half up front
The artist provides pencil sketches and waits for acceptance
The client reviews the sketches, asks for changes, and eventually
is satisfied with the work
The artist completes the finished work and tells the client it's ready
The client pays the remaining half of the money
The artist sends the finished work to the client
This limits the client's initial outlay and risk to half the money (and if
the artist defaults on even the pencil sketch, the client is free to inform
other clients of a bad commission experience) and ensures the artist is
recompensed for the initial pencil sketch should the client turn out to be
satisfied with just that.
Part 5: Agreement to the Contract
A contract is not binding until both parties agree to the contract!
What this means is, the client can ask for a commission -- ideally the
client would fill out section 1 at the very least -- and the artist
is within rights to refuse, or to ask for so and so amount of money
in exchange for the work and any rights the artist would be selling to
the work. But until both the client and the artist agree that the
terms of the contract are to their satisfaction, no contract exists.
If there is no contract, i.e. there was a verbal agreement, then
it's recommended that the artist and the client write down and agree
to the terms. Lacking that, a case can be made that cashing a check
creates a 'work for hire' contract, but such a situation may
create ill will between the artist and the client.
Once the contract has been entered into, the terms can be renegotiated
only if both sides agree to the changed terms. For instance, if the
artist becomes incapacitated, making it impossible to complete a
contract by deadline, the client may agree to allow the artist extra
time or the client may decide to instead cancel the contract, and
find another artist who can complete the work by deadline.
Afterword, and the Basic Contract
Sounds scary? Contracts needn't be. Most art commissions are for
things to hang up on the wall, and with that in mind, questions about
publication go away. The typical commission will read like this:
Section 1:
As thorough a description as the client can provide.
Section 2:
Rights to characters belong to the creators of the characters.
Section 3:
The artist is allowed to retain copies for their portfolio to display
to other clients.
The artist customarily asks the client if the client minds the artist
publishing the work. (as the picture may be of a personal nature
that the client would prefer not be sold to a general market, no
default can apply here)
If so, then the contract is work for hire and the artist will not
publish the work, either in magazines or as limited edition prints.
The client holds the publishing rights.
If not, then the artist retains publishing rights and may publish the
work elsewhere.
Section 4:
Either a pay-up-front art-on-deadline approach or the above
half-down, pencil sketch approval, half on completion scheme works.
If the client cancels, the artist is allowed to resell the art
as they see fit, irrelevant of character copyrights. The artist
inherits the rights to the art.
If the artist cancels, the client is due any monies paid, less
the cost of whatever work was done by the artist (pencil sketches,
color roughs).
There-- a no-nonsense, straightforward contract. Just fill in
section 1, answer the question in section 3, and the client and the
artist can rest satisfied that both are aware of the rights which have
and which have not been bought.
--
| __|\ | Conrad "Lynx" Wong | Upstart feline miscreant |
| ._| _ : | 101 First Street, suite 554 | LY Go B Y++ L++ C++++ T++ A-- |
| ( ' | Los Altos Hills, CA 94022 | H+ S++ V+ F- Q+ PP+ B PA+ PL+++ |
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| ; "' ; | PawPrints: http://www.best.com/~lynx/pawprints.html |
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| *purrrrrr* |up with a crow bar is not nailed down, anything that IS nailed |
| |down is a scratching post. And anything edible is food -- Revar|
Glen Wooten
From jaguar1 Mon Feb 8 19:14:03 1999
Path: netcom.com!jaguar1
From: Glen Wooten <jag...@netcom.com>
Subject: Re: Proposed FAQ for furry artwork commissions contract
Newsgroups: alt.fan.furry,fur.artwork.artists
Followup-To: alt.fan.furry,fur.artwork.artists
References: <lynxF6v...@netcom.com>
Organization: the Wolfgang Halfway House
Distribution:
Conrad Wong <ly...@netcom.com> wrote:
> When not otherwise stated, contracts default to work-for-hire; that is,
> the client retains all rights unless otherwise stated by contract.
Just a note; "work-for-hire" is NEVER assumed. It must be specifically
written into a contract in plain language and must be signed to by all
parties (that is, it must be a written contract.)
By default, all publishing rights remain with the artist or creator,
anything to the contrary must be negotiated and (preferably) in writing.
--
Glen Wooten
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
| primary: jag...@netcom.com | secondary: glen....@fanciful.org |
_____________________________________________________________________
| Terrie's web page: http://users.aol.com/amperprodx/littlepaw.html |
_____________________________________________________________________
Conrad Lynx Wong
Glen Wooten <jag...@netcom.com> wrote:
>Just a note; "work-for-hire" is NEVER assumed. It must be specifically
>written into a contract in plain language and must be signed to by all
>parties (that is, it must be a written contract.)
>
>By default, all publishing rights remain with the artist or creator,
>anything to the contrary must be negotiated and (preferably) in writing.
Thanks, Glen! I wasn't sure on that particular item, which was I wanted
feedback. I'll write it as such and emphasize it.
-- Lynx