by Maria Brophy
When a collector commissions an art piece, they pay for the painting and they own the rights to hang it on their wall. We retain the rights to reproduce it in any way we wish.
One exception to this rule of keeping ownership to artwork is when creating graphic design work for a company, in the form of a logo or other intellectual property that is owned by the client. The client must own rights to their own logo and branding for obvious reasons.
Another exception is when illustrators are hired to create work that includes their client’s intellectual property, for example, movie posters or work you would do for Disney. Of course, in that case, the client has to retain the copyrights.
HOW COPYRIGHTS WORK
In the U.S., every artistic expression is protected by copyright law. A painting, sculpture, poem, book and song is considered intellectual property, which is owned by someone, usually the creator.
The person or entity who owns the copyright to an artwork has all legal rights to determine what happens with that artwork, including how it will be reproduced, where it will be sold and how it will be modified.
If you sign your copyrights away, and later you want to print a coffee table book of your art, or put photos of your art online, you have to get permission from each and every owner of your work.
When you sign your copyrights away, the owner of your art now can do anything they want with it. You could walk into Walmart one day and see your art as one of the POP displays. Or, it could end up on a porn site or somewhere else that goes against your personal values and dreams.
Some artists regularly sign their rights away to their clients. At times this may be okay for illustrators to do. But fine artists and artists who are building a brand and a name with their art for the long term, should make it their business model to keep ownership to their copyrights.
In the United States, the copyright owner has all reproduction rights to the art, including printing, advertising and licensing. No one else can legally reproduce, print or use art in any way without the copyright owner’s written consent, not even someone who bought the original piece of art.
From the moment you create an original piece of art, you own the copyright to it. You own the copyright even if you did not legally file for copyright protection through the U.S. Copyright office.
A few exceptions to the rule above: If you created the art for an employer, then they own it. If you collaborated with another artist, then it is jointly owned. If you signed away or transferred your rights to another person or company in a written agreement, then they own it.
HOW TO PROTECT YOUR COPYRIGHTS
Don’t sign any document with a client that includes language that transfers your copyrights. Beware of any language that uses words or phrases such as “Work for Hire” or “Transfer of Copyrights” or “Transfer of Rights.” If a client asks you to sign a document that includes any indication of a transfer of rights, ask them to remove the language and replace it with this: “Artist retains all copyrights to the artwork.”
To best protect your copyrights, you should file copyrights for all of your artwork. Every country has their own process. In the United States, you can file online at www.copyright.gov. Filing will give you the most protection in the event someone infringes upon your work illegally.
An example of copyright infringement is when someone takes your art and prints it on a product and then sells it commercially. This happens often to artists, and it’s very frustrating.
When you file your copyrights, you have more legal protection. If you sue an infringer and you win the lawsuit, you’ll receive greater compensation and your attorney’s fees will be reimbursed. Without filing for your copyrights, legal fees are your responsibility when suing, and even if you win in court, your legal fees will often be too high to make it worthwhile pursuing.
WHEN IS IT OKAY TO SIGN
COPYRIGHTS AWAY TO A CLIENT?
Illustrators and artists often come across clients who want to own all rights to the art. Sometimes the clients have good reason, other times they don’t know why they want all rights, they just think they need them, but they don’t.
If the artwork directly includes the client’s logo, branding or intellectual property, then you will have to allow them to own copyrights because they are going to have to use their logo and branding forever.
If the artwork is a co-branding of the client’s logo or branding, you can retain rights to the artwork, just not their logo or branding. (For example: Your art is printed on Absolut Vodka’s labels—they don’t get the rights to your art, you don’t get the rights to their logo. Each party keeps ownership of their own copyrights.)
Below is my test to help you determine if you should sign your copyrights away as a business model:
An artist should not sign away their copyrights to a client, if:
The artist has a distinct style that is easily recognized
The artist plans to become well-known or famous for their art
The artist’s business model includes future art licensing and selling merchandise with their work
The artist’s goal is to build their art business based on their name and art
Signing your rights away will compromise all of these goals.
An artist may sign their rights away, if:
The artist does not have a distinct style (their work is not recognized as their own)
The artist does not care to become known for their art
The artist’s business model is to sign away rights
The artist’s future goals will not be compromised by it
When you give up all rights to an image, you give up all possibility of future earnings for your art. As such, you must charge more than an artist who does not sign their rights away.
The standard practice in the business of illustration is to have two prices; a price for creation of the artwork which gives the client rights to use it, and a second option that charges the client three to four times more for all rights.
HOW TO HANDLE A CLIENT WHO
DEMANDS TO OWN THE COPYRIGHTS
It’s not uncommon to have a client want to own copyrights to Drew’s art. When this happens, I take the time to explain that our business model is to retain the copyrights. And then I have a conversation to find out why they feel they need to own the art. In the end, I can get them to agree to a limited license.
One year the surf company Billabong commissioned Drew to paint a surfboard that was going to be displayed in one of their stores. When I sent them an invoice, they sent me a “work for hire” contract to sign. They said this was required to be signed before they could pay the invoice. “Work for hire” means that the rights are being transferred from you, the artist, to the client. Of course, we weren’t going to sign it. It doesn’t fit in with our business model. So, I called the client and asked why they needed to own all copyrights to the surfboard art by Drew. She didn’t know. I took the time to explain that we don’t transfer copyrights, ever. After a lengthy conversation, she got the approval from her legal department and removed the requirement to sign the Work for Hire agreement.
Many times, I find that the company asking to own the copyrights doesn’t really need to; they are asking to because they don’t know how the art business works. They may want to own the art because they think they are supposed to, or because they are afraid that by not owning it, it will harm them.
This is why conversation is so important. I will ask them questions, such as “what are your real concerns” or “what are you worried about” or “what do you plan to do with the artwork that requires you to own it forever?”
Through this conversation, it often is revealed that they are worried about something that can be easily remedied without transferring copyrights. For example, we did a deal with a skateboard company many years ago, and they wanted to own the art. I asked why, and they said that they didn’t want to see this particular art on any other skateboards in the marketplace. To remedy their concern, I put
it in the contract that the images we were licensing to them would not be used for any other skateboard company during the term of the contract. They were happy with that and we closed the deal.
Once a clothing company wanted to own all rights to t-shirt designs that Drew was going to create for them. I asked them how long they planned to sell these t-shirts, and they said for a season, which is about four months. They only needed rights to use the artwork for a season, not forever and ever.
Sometimes a client will say that they don’t want to see the art on any other product, ever. That’s when I have to explain to them how our business model works, and how by printing the art on other products, it actually increases the sales of their products. For example, if an image is printed on canvas prints and it becomes a popular image, and then you take that image and print it on a product such as cell phone covers, the cell phone covers will sell better because the public has seen the image before and the public tends to buy what they are familiar with.
Most of the time, your client doesn’t need all rights; most will need the art for a short period of time (a season, a year, two years). Instead of signing your rights away, offer to license the art to them for a short period of time. And stand your ground on this, because your art career depends on it.
HOW TO ORGANIZE YOUR COPYRIGHT FILINGS
If you haven’t registered your copyrights in the past, don’t despair. It’s not too late to start. If your art is out there in the world, begin the process today.
If you have artwork that you created this month, register that artwork today. Worry about past artworks later, just get started with your most recent work first.
To register your copyrights in the U.S., go to www.copyright.gov and set up an account. This is where you will do your online copyright registrations. I’m not going to sugar coat it; the U.S. Copyright Office has made it a little confusing. But after you file a few times, you’ll get the hang of it.
The U.S. copyright.gov website has an excellent section of “frequently asked questions” that you can refer to. The information is actually easy to read and understand for most of us without a law degree.
Put yourself on a system of filing your copyrights on a regular schedule. Filing your copyrights every two months at a minimum is a good rule to follow, or immediately after you just finished a series of artwork.
KEEPING TRACK OF YOUR COPYRIGHTS
Keep track of when your copyrights have been filed by using a spreadsheet. We have a spreadsheet listing every single one of Drew’s paintings and illustrations dating back to the late 1990’s. I use it to keep track of what has been filed and what has not yet been filed.
The two main benefits of this spreadsheet:
It will be a reminder of what artworks you haven’t yet copyrighted (be sure to add each new artwork to the spreadsheet when the artwork is created)
In the event of an infringement, you can refer to the spreadsheet and look up the name of the artwork and the date you registered the copyright. This information will be used in your cease & desist letter to the infringer, as well as help you with your legal battle.
Use the following example as a guide to create your own spreadsheet:
Year
Created
IMAGE
Name
Publish Date
Series or Group
Date
© FILED
Date
(c) Registration
Was received
Registration
Date
U.S. (c)
Registration
Number
2015
Angels & Skulls
Funky Posters Series
8/31/2015
1/14/2016
8/31/2015
V1-625-923
2015
Flying Fish
Funky Posters Group
8/31/2015
1/14/2016
8/31/2015
V1-625-923
2015
Road Less Traveled
Funky Posters Group
8/31/2015
1/14/2016
8/31/2015
V1-625-923
2016
Sacred Waves
N/A
11/15/2016
3/15/2017
10/15/2016
V1-785-015
2016
Sunset Surfing
N/A
11/15/2016
4/15/2017
10/15/2016
V1-785-991
2017
Sitting Mermaid
N/A
Not Yet
2017
Baja Bad
N/A
Not Yet
WHEN YOUR WORK IS STOLEN: CEASE & DESIST
What should you do when someone steals your artwork and is selling it as their own?
It depends on the extent of the infringement. If a large company has stolen your work and is distributing it in large quantities, immediately contact an attorney. This could be a payday for you, especially if you filed for copyrights previously.
In 2006 artist Robb Havassy discovered that the giant clothing company, Abercrombie and Fitch, copied art from one of his surfboard paintings and reproduced it onto hundreds of surfboards to use as displays in their stores. They did this without his permission, and what I found to be most disturbing was they even printed the artist’s signature on every board! Havassy filed a lawsuit. It took two and a half years for resolution, and though the details were not made public, Havassy received a settlement in an undisclosed sum.
If you never filed copyrights for the images that are being infringed upon, a lawsuit can get expensive, because even if you win, you’ll still be responsible for attorney’s fees. But, don’t let that stop you from taking action to get the infringer to cease and desist use of the stolen art.
If the infringer is an individual, or a small company, you may want to call or write them yourself, rather then involve an attorney. Let the goal be to bring it to their attention and work it out, either by having them cease sales or sign a licensing deal and pay you for it.
A few years ago someone stole Drew’s surfboard paintings and resold them in a virtual reality game. We were able to get the infringer on the phone and confront him on the theft. He didn’t want us to sue him and asked if we could work it out. We agreed to a $2,500 license fee to Drew, after the fact. We then worked out an ongoing license for future sales. It ended well.
Sometimes another artist will steal your art and sell it to a company, pretending that they designed it. The company often has no idea it is stolen art. This has happened to us a few times. The first was when we had a booth at Surf Expo in 2002. The Hot Girls clothing company who also had a booth was selling Drew’s art on one of their t-shirts, the same art we were selling out of our booth! I couldn’t believe my eyes. When I confronted the owner about the art, he said a Brazilian artist sold it to him. He didn’t believe me at first that it was Drew Brophy’s art. It was an exact copy of Drew’s iconic Pure Joy image. Immediately, I called our attorney and had a cease and desist letter sent. The company agreed to stop selling the tees and they destroyed the screens and all samples they had made.
Another time a concert promoter was using Drew’s very popular image Sunrise on one of their posters. I got them on the phone and told them that it was Drew’s art and they can’t use it without permission. They said they had hired an artist in Costa Rica to design the poster and paid her well for it. They didn’t know that it was stolen art. They agreed to pay to continue using the artwork and we ended the situation very amicably.
It’s too bad for the company when they trust the designers they hire, only to find out later through a lawsuit that the designer infringed on anther artist’s work. Many companies will protect themselves by having their artists sign an agreement that says the artwork they are submitting is their own and does not infringe on the rights of anyone else. The language usually states that should there be an
infringement lawsuit, the artist is responsible for legal fees, not the company. This is something all artists should be very careful with; not to copy or infringe on another artist’s work.
For larger companies, I’ll have my attorney send a cease and desist for me. It typically costs about $500. It’s worth it, because when the infringing company receives a letter from an attorney, they know you mean business and will take it seriously.
For smaller companies, sometimes I’ll draft up my own cease and desist letter. I like to work things out with people when I can. If all I want is for the infringement to stop, then a letter and a phone call will do.
Below is a sample letter I use as a cease and desist.
SAMPLE CEASE & DESIST LETTER
Dear (Insert infringing Artist or company contact name here):
I’ve become aware that you have made an unauthorized use of my copyrighted Work (herein referred to as Work) entitled ________. Please be aware that I have reserved all rights in the Work, which was first published on _____________.
(If you have filed a copyright, include “I have registered copyright for the Work on _______________”).
Your work (or product) entitled ____________ is essentially identical to my copyrighted Work. As you neither asked for nor received permission to use the Work, I believe you have willfully infringed my rights and could be liable for statutory damages.
I demand that you immediately cease the use and distribution of all infringing works derived from the Work, and all copies, including electronic copies, of the same, and that you deliver to me all unused, undistributed copies or destroy such copies immediately and that you desist from this or any other infringement of my rights in the future.
Please respond by email with your agreement to cease and desist.
If you do not comply within 10 business days of the date of this notice, I shall take further action against you in the Federal district court.
Sincerely,
Artist Name Here
Address
Email
Phone