Who Owns the Artwork?

by Best Seller 17 replies
In addition to my background in book publishing, sales, and marketing, I also worked in print advertising sales (both newspaper and yellow page directories) for several years. What these industries have in common is that they all produce artwork for their clients as part of their overall service offerings.

The artwork policy with regard to copyright ownership varied with each company I worked for. Some of them believed that, once their clients paid for and published a creative work, they owned it and could reuse it wherever and whenever they chose to at their discretion. Others believed that any artwork they created for a client belonged to the creator--not the client--and could only be reused with their permission at an additional charge.

I'm speaking about this here because there are so many Internet marketers producing ebooks for their businesses nowadays, and I want to make sure you understand the artwork policies of whomever you're dealing with to produce your book covers and interiors for you. It's a conversation you should always have upfront, and you need to make sure you're reading through your artwork and publishing contracts ahead of time before you ever enter into an agreement with anyone.

Having been on both sides of this coin--being both the service provider and the paying client at various times in the past--it is my opinion that the copyright for a creative belongs to the paying client, and all the high-resolution artwork should be returned to that client upon receipt of payment. I have many reasons for this that I'm happy to elaborate on here if asked.

What are your personal thoughts on it? In your opinion, who owns the artwork? And why? (If there are any graphic designers on this site, I realize this conversation may get a little heated.)
#offline marketing #advertising #artwork #book publishing #copyright #owns #sales
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  • Profile picture of the author savidge4
    This is not in any way shape or form about opinion... "I think" or "I believe" gets you no where in a court. When I personally create artwork for clients.. they get ownership of that artwork - as in a legal document stating so. IF you have artwork done and it is used in say the Yellow pages.. unless they have consented copyright.. the image IS NOT yours.

    Copyright is pretty cut and dry.. you created it, or you have permission, or copyright has been give to you... anything else, it is not yours to use.

    Originally Posted by Best Seller View Post

    In addition to my background in book publishing, sales, and marketing, I also worked in print advertising sales (both newspaper and yellow page directories) for several years. What these industries have in common is that they all produce artwork for their clients as part of their overall service offerings.

    The artwork policy with regard to copyright ownership varied with each company I worked for. Some of them believed that, once their clients paid for and published a creative work, they owned it and could reuse it wherever and whenever they chose to at their discretion. Others believed that any artwork they created for a client belonged to the creator--not the client--and could only be reused with their permission at an additional charge.

    I'm speaking about this here because there are so many Internet marketers producing ebooks for their businesses nowadays, and I want to make sure you understand the artwork policies of whomever you're dealing with to produce your book covers and interiors for you. It's a conversation you should always have upfront, and you need to make sure you're reading through your artwork and publishing contracts ahead of time before you ever enter into an agreement with anyone.

    Having been on both sides of this coin--being both the service provider and the paying client at various times in the past--it is my opinion that the copyright for a creative belongs to the paying client, and all the high-resolution artwork should be returned to that client upon receipt of payment. I have many reasons for this that I'm happy to elaborate on here if asked.

    What are your personal thoughts on it? In your opinion, who owns the artwork? And why? (If there are any graphic designers on this site, I realize this conversation may get a little heated.)
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    • Profile picture of the author Best Seller
      Originally Posted by savidge4 View Post

      This is not in any way shape or form about opinion... "I think" or "I believe" gets you no where in a court. When I personally create artwork for clients.. they get ownership of that artwork - as in a legal document stating so. IF you have artwork done and it is used in say the Yellow pages.. unless they have consented copyright.. the image IS NOT yours.

      Copyright is pretty cut and dry.. you created it, or you have permission, or copyright has been give to you... anything else, it is not yours to use.
      No, this is not cut and dried in this case. Each company has different contracts in place to determine who will end up with the copyright ownership at the end of it. This is why it's critical to review those contracts ahead of time.
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      • Profile picture of the author savidge4
        Originally Posted by Best Seller View Post

        No, this is not cut and dried in this case. Each company has different contracts in place to determine who will end up with the copyright ownership at the end of it. This is why it's critical to review those contracts ahead of time.
        That's the point.. the contracts are different... if the information pertaining to ownership is NOT in the contract it simply is not yours.. it IS real cut and dry.

        An example. I take an image for a website... no where within the contract is there details of the rights and usage of the image.. the images copyright would remain with me.. the photographer.

        Within the same contract.. I could include details in terms of usage. 1 year.. or image is for the use of the website only.. or I could give royalty free usage for the image, or as I stated earlier.. I sign the rights to all images to the client.

        I do to this day a good amount f image work.. be it video or images or artwork in general. In the past, I have had images used by big corporate America. I am VERY familiar with Copyright law when it pertains to images in particular. I am also very familiar with the process to protect copyright, from the position of being the "Artist". Unlike most other aspects of law.. Copyright Law.. is very straight forward.
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        • Profile picture of the author Best Seller
          Originally Posted by savidge4 View Post

          ...Unlike most other aspects of law.. Copyright Law.. is very straight forward.
          With graphic artwork, that may well be the case. It's more complicated with other types of art such as music and writing.

          Here's a great read about the music industry: http://ca.tunecore.com/guides/sixrights/. And here's an interest copyright fact: we're all familiar with Whitney Houston’s cover of Dolly Parton’s song “I Will Always Love You.” What you may not know is that, as the copyright owner of the song, Dolly gets paid every time a copy of it is made. Millions of copies of Whitney Houston’s cover were made. And Dolly got paid on every one of them.
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  • Profile picture of the author Joshua Young
    I agree with you that it belongs to the paying client. I have been on both sides of this as well.
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    • Profile picture of the author Best Seller
      Originally Posted by Joshua Young View Post

      I agree with you that it belongs to the paying client. I have been on both sides of this as well.
      Unfortunately, not all graphic designers (or corporations) agree with us. I've learned to always read the fine print, always have the conversation upfront.
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  • Profile picture of the author Tony MC
    Strange that with only two options as to who owns copyright this is one of the biggest disagreements seen in the advetising world. I suppose there could be more than two options if an employee of a company produced artwork then does the employee own it or does his employer or the client.
    As Best Seller says, it all depends on the fine print. Just a pity that in many cases that fine print is not as easily available as the artwork. If it was, I don't suppose Getty Images would make so much money from lawsuits, or the threat of them, as it does.
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    • Profile picture of the author savidge4
      Originally Posted by Tony MC View Post

      Strange that with only two options as to who owns copyright this is one of the biggest disagreements seen in the advetising world. I suppose there could be more than two options if an employee of a company produced artwork then does the employee own it or does his employer or the client.
      As Best Seller says, it all depends on the fine print. Just a pity that in many cases that fine print is not as easily available as the artwork. If it was, I don't suppose Getty Images would make so much money from lawsuits, or the threat of them, as it does.
      Employer - Employee with no prior arrangement otherwise.. its the EMPLOYERS every time.

      Independent Contractor - its about yours ( Independent Contractor ) every time EXCEPT if there is an instance of "Made for Hire" or "Work for Hire" ( try reading this to get a better understanding - https://www.copyright.gov/circs/circ09.pdf ) The one kinda catch all element of this is b 4 - "as a supplementary work, " If you are providing artwork only.. this one gets you. If you are providing a meme as an example.. and YOU the creator of the artwork implements all elements of the image and message, this would not be "Supplemental"

      Basically guys this is law.. as straight forward as law gets.. there is simply no I suppose or I guess in any of this.

      All I can say is this... If you are one that is providing artwork.. you should have legal documents that state your intentions in terms of Copyright. Be it releasing granting a period.. for a single publication whatever it is. IF you are signing a contract.. you need to look and see if there is a "Work for Hire" clause read over the contract for any other mention of copyright and ownership. Its All about Due Diligence.
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      • Profile picture of the author Best Seller
        Originally Posted by savidge4 View Post

        Independent Contractor - its about yours ( Independent Contractor ) every time EXCEPT if there is an instance of "Made for Hire" or "Work for Hire"
        This is a true. And this is why all the vendor contracts I've set up (e.g., editors, designers, proofreaders, indexers, ghostwriters, etc.) for my authors are "work for hire" contracts. So that my authors retain 100% ownership of everything we produce for them. Cover artwork, their words, everything.
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      • Profile picture of the author Best Seller
        Originally Posted by savidge4 View Post

        All I can say is this... If you are one that is providing artwork.. you should have legal documents that state your intentions in terms of Copyright. Be it releasing granting a period.. for a single publication whatever it is. IF you are signing a contract.. you need to look and see if there is a "Work for Hire" clause read over the contract for any other mention of copyright and ownership. Its All about Due Diligence.
        Agreed! Very important for all parties involved.
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    • Profile picture of the author Best Seller
      Originally Posted by Tony MC View Post

      ...if an employee of a company produced artwork then does the employee own it or does his employer or the client.
      The employer owns it in this case because the employee is acting as an agent of the employer.
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      • Profile picture of the author Tony MC
        I've always known it's the employer that owns what the employee produces, but thanks for pointing out it's because he's an agent. Does it then depend on the contract between the employer and his client who owns the copyright? Is there a default situation if there is nothing in the contract that defines ownership please?
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        • Profile picture of the author Best Seller
          Originally Posted by Tony MC View Post

          I've always known it's the employer that owns what the employee produces, but thanks for pointing out it's because he's an agent. Does it then depend on the contract between the employer and his client who owns the copyright? Is there a default situation if there is nothing in the contract that defines ownership please?
          Never assume defaults. Ask the questions and have things clarified in writing ahead of time. Always.

          I'd also recommend consulting with this trademark, copyright and entertainment attorney: Ian Gibson. He'll be able to give you the best answer--a better one than any of us can on this forum.
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        • Profile picture of the author savidge4
          Originally Posted by Tony MC View Post

          I've always known it's the employer that owns what the employee produces, but thanks for pointing out it's because he's an agent. Does it then depend on the contract between the employer and his client who owns the copyright? Is there a default situation if there is nothing in the contract that defines ownership please?
          In general by default the ownership of copyright always falls to the creator. HOWEVER... if the creator is HIRED to create an image.. specifically as an example an image for an article the client has written... this falls under "Made for Hire" and specifically the supplementary work portion of the law, and copyright falls to the client, and not the creator.

          Let me try to explain this...If the created piece is an element of a work IE the client wrote an article and you are hired to take a photograph.. Because the image is specifically taken and paid for to be included in the article, by default of INTENT ( it will be used with another authors work - the article ) copyright falls to the client.

          Any time you are paid to contribute a portion of a whole... that portion becomes a part of the whole.. and the owner of the whole maintains copyright.

          Like I said before all of this confusion can be negated, by simply drafting into the contract.. or adding an appendix to the contract that specifically states how copyright will fall.
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          • Profile picture of the author Best Seller
            Originally Posted by savidge4 View Post

            In general by default the ownership of copyright always falls to the creator. HOWEVER... if the creator is HIRED to create an image.. specifically as an example an image for an article the client has written... this falls under "Made for Hire" and specifically the supplementary work portion of the law, and copyright falls to the client, and not the creator.
            Okay, this is where I pipe in again to say, "No, it's not that cut and dried." It should be, but it's not.

            I've worked for several corporations over the years, some that have used paid employees to produce artwork for their clients, and others who have outsourced that work. Like I said in the OP, the artwork policy with regard to copyright ownership varied with each company I worked for ... both in the way they handled their clients and their employees/contractors who produced the artwork for those clients. Unless the words "work for hire" are specifically indicated in the contract, it cannot be assumed.

            Originally Posted by savidge4 View Post

            Any time you are paid to contribute a portion of a whole... that portion becomes a part of the whole.. and the owner of the whole maintains copyright.
            Again, not everyone views it this way which is why that "work for hire" phrase has to be indicated in the contract. Any of the designers I hire to produce covers/interiors for my authors are only producing a portion of the whole; but I still have to specify "work for hire" in their contracts, otherwise they may assume they still own the artwork. Believe me, I've had my share of "discussions" (we'll call them discussions) with designers about this over the years. I will only work with the ones who will treat the project as a "work for hire" so my authors retain 100% copyright of everything we (our contractors) produce for them. Because of that, some of them won't work with us. And fair enough.

            Always review and discuss these types of contracts ahead of time so you're certain of what you're signing and you're certain that everyone views it the same way as you do. Never leave anything to assumption, because not everyone sees it the same way.
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            • Profile picture of the author savidge4
              Originally Posted by Best Seller View Post

              Okay, this is where I pipe in again to say, "No, it's not that cut and dried." It should be, but it's not.

              I've worked for several corporations over the years, some that have used paid employees to produce artwork for their clients, and others who have outsourced that work. Like I said in the OP, the artwork policy with regard to copyright ownership varied with each company I worked for ... both in the way they handled their clients and their employees/contractors who produced the artwork for those clients. Unless the words "work for hire" are specifically indicated in the contract, it cannot be assumed..
              I beg to differ and here is why... It all lays within "Intent". an example. I hire a photographer to take a photo of me and my dog... the Copyright remains with the photographer. I hire a photographer to take a photo of me and my dog that will be expressly used in a blog post or a book or a pamphlet ( the intent is in the contract ) without using the term "Work for Hire" and again looking at the link I shared.. that photo being a part of the whole is indeed work for hire, and the copyright falls to the client. It is literally that cut and dry.


              Originally Posted by Best Seller View Post

              Again, not everyone views it this way which is why that "work for hire" phrase has to be indicated in the contract. .
              It doesn't matter how anyone "views" this... its how a court views it, and dependent on conditions, works that are produced for a price.. regardless of the term "work for hire" or not can and will be deemed "work for hire". There are specifically 9 conditions that dictate "work for hire" https://www.copyright.gov/circs/circ09.pdf look at "Definition of Law" Sub section "b" and see the phrase "a work specially ordered or commissioned for use ". This means.. if you, the client are very specific with the USE of the contracted work.. and it falls within any of the 9 conditions.. it is indeed "work for hire"

              Originally Posted by Best Seller View Post

              Any of the designers I hire to produce covers/interiors for my authors are only producing a portion of the whole; but I still have to specify "work for hire" in their contracts, otherwise they may assume they still own the artwork. Believe me, I've had my share of "discussions" (we'll call them discussions) with designers about this over the years. I will only work with the ones who will treat the project as a "work for hire" so my authors retain 100% copyright of everything we (our contractors) produce for them. Because of that, some of them won't work with us. And fair enough.
              I have a modified version of the "Work made for Hire" document. It requires my signature, and the signature of the contractor I am hiring to do work. My contracts with these people lays out the intent and use of the produced work. I honestly do not say "Work for Hire".

              I treat my clients very differently. At the end of a project, they get a folder of any images writing whatever.. where it appears in the completed work, and then for each and ever instance, I release copyright to the client. There is simply not enough time on this green earth for me to comply with terms of copyright and defend each and every image and text and video and whatever else. What I "lose" in the long term is actually a gain.

              Originally Posted by Best Seller View Post

              Always review and discuss these types of contracts ahead of time so you're certain of what you're signing and you're certain that everyone views it the same way as you do. Never leave anything to assumption, because not everyone sees it the same way.
              You and I are both very clear with this... a few moments early on saves a ton of hassle later... I still cant recall how many times I have gotten the silly letter from some attorney in regards to "my breaking copyright" to call said attorney, fax them a copy of the contract ( underlining the intent ) , and the signed "Work for Hire" form.
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              • Profile picture of the author Best Seller
                Originally Posted by savidge4 View Post

                You and I are both very clear with this... a few moments early on saves a ton of hassle later... I still cant recall how many times I have gotten the silly letter from some attorney in regards to "my breaking copyright" to call said attorney, fax them a copy of the contract ( underlining the intent ) , and the signed "Work for Hire" form.
                I'll definitely have to share a copy of your link, as well as a link to this forum thread, with my designers going forward. I still keep those words "work for hire" in my contracts as a safeguard. But this will be a helpful back-up. Thank you.
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