May25

“What’s the deal with this contract? Can’t I just buy the picture and be done with it?”

ūüôĀ

This awkward moment is brought to you courtesy of a typical situation: A freelance client who is new to the world of creative service wants a simple solution to a seemingly simple problem. All they want is a picture. They can’t draw, and you¬†can. So why not¬†just take the money and hand it over? Before I answer this question, I just want to say I’m not a lawyer, so nothing that follows is to be taken as legal advice in any way. That said, let’s jump in…

The price of a doodle

Let’s say this client is only asking for a simple drawing, nothing big, just a cartoon. What is that worth? Collective¬†wince as you hear, “it depends”.¬†For an artist, an image has at least three main ways of¬†being worth something in terms of setting a price:

  1. The time and/or skill that was taken to create an image: The more skill, the more time, the more expensive. The artist is likely still making loan payments for what it cost to learn this skill (ahem).
  2. The cost of the materials required to make an image: This could be anything from canvas and paint to printing equipment, or even super-expensive computer equipment and software.
  3. Copyright ownership: Determining who owns the image outright can and should have a large effect on the images cost.
  4. Usage: If the artist maintains copyright, how it is used by the client will determine its cost.

In my experience, Most clients don’t have too difficult a time understanding the first two concepts, but the third and fourth that gives a novice art buyer more¬†trouble. I have had more than a few would-be clients cease to be interested in doing business when I mention a contract that defines¬†copyright ownership¬†and usage. In their minds, an image created by an artist should be like any other consumable good that they buy at the store. You buy a toaster, you take it home, it’s your toaster, no contract. Why should a purchasing an image be any different, especially if it’s “just a simple little drawing”?

What you can do with a toaster

Well, since the comparison has been drawn, lets look at how much you actually own that easily-purchased toaster. So you bought it at BigBox and you can do with it as you please, right? Not necessarily. You may use your toaster to do the following things:

  • Make toast.
  • Take it apart and modify it, or use it for spare parts for another toaster.
  • Prop up a couch.
  • Confuse it for a tape deck.
  • Use it as a bath toy (seriously, don’t, you could¬†die)

So basically, all the things you’d think a contract-free purchase would entitle you to. But one thing that you would not be allowed to do would be to use the toaster as a design template and replicate it, whether it be for profit or personal use. ¬†You are prevented from doing so by the same constitutional law that protected Eli Whitney’s Cotton Gin. Why? because It would destroy the manufacturers ability to make money from their design, and thus discourage good old American ingenuity. ¬†Therefore, both the functional design and the appearance of the toaster are protected intellectual property. “Well that’s silly”, you may say. “I don’t have the stuff to do that.” But the “stuff to do that” (such as 3d printers and scanners) is getting cheaper all the time. It may soon be within the grasp of an everyman to copy an industrially designed product, just as easily as, say, … putting a drawing on a scanner.

A word on copyright

Copying an image was once a lot more of an involved and expensive process than it is now. These days, if an image is entirely digital all one has to do to replicate it is to hit “ctrl/command c”. That image can be reproduced, mass produced, and spread all over the internet before you can say “infringement”. But, similar to the situation with the toaster, just because you can, does not mean you are allowed. U.S. copyright law states that the copyright to an image belongs to the creator of said image, from the moment of its creation. That copyright belongs to the artist until they specifically say otherwise in a legal agreement, even if money changes hands and the work is handed over to the client.¬†In other words, even if you plunk down some change and walk away with a picture, you still don’t “own it” in the way that you might have thought.

Now let’s get back to that “simple little drawing” that the client asked me for. Now knowing about copyright law, they may ask, “well, can you just sell me the copyright then?” Yes, that is possible, but how much should that cost? For a skilled artist a simple drawing may not take too much time or resources to create. But the usage of that image is also crucial to the value of the copyright. Thus,¬†there is no way to really know how much a copyright could be worth.¬†If all the client wants to do is print it on their business cards, then that would only be worth a relatively small sum. But say the client has bigger plans for my simple drawing. Let’s say they request me to draw an assortment of wingless cartoon birds designed from geometric shapes. They just want to use it in a video game to start with, but from there, who knows? T-shirts? Plush Toys?¬†A media empire?¬†Now that “simple little drawing” is worth millions. But a small client likely won’t have millions to spend.

But here’s what I can do…

Rather than just walking away from the deal, let’s consider another option: An artist can license his image in different ways for specific uses. In this way the image can be used for smaller, individual ventures. If those are successful, more licenses can be negotiated. In this way, if the image makes money for the client, the artist also makes money, and all without the massive down payment. It’s more complicated, It requires the use of contracts, but it’s also more fair for everyone involved. And if you think about it, a contract is a very good and useful tool. It lays out the whole agreement ahead of time, so there are no misunderstandings later about who owns the image and in what way it can be used. So, lets just license those birds for that video game now, and we’ll see where it all goes (don’t I wish). ūüôā

“But the cartoon birds were my idea!”

“Why should I have to share my millions?” the fictional client might say. But the thing is, you can’t copyright an idea. You can patent a functional design or appearance, you can trademark a name, and you can copyright that which can be copied, such as written works or pictures. If you could copyright an idea, then¬†the only cartoon mouse in the world would be Walt Disney’s. Which brings us back to the first way an image is valuable, in that it requires a learned and specific skill to create. Anyone can have a great idea, but if you need an artist or designer to help you create some kind of a sellable property, then their creative effort will forever be a vital part of why that property makes money at all. ¬†Now imagine looking at a product based on an image you created, which is now on the shelves of all the major retailers, and knowing that the only income you will ever see from it is a small one-time payment for a “simple little drawing”¬†which is now… not so simple, not so little. This is why the U.S. copyright law protects artists and their creations, and why artists should know their rights, and have a proper awareness of the potential value of their work.

Finally, it should be noted that a truly professional artist will usually bend over backwards to create something that fits a client’s budget and needs. And I truly understand the pressure to “make a sale at any cost”. But when a client makes an unreasonable request, and refuses to accommodate negotiation, they should gracefully be turned away. You wouldn’t walk into a new car dealership and expect to be taken seriously if you demanded to see something for 200 dollars, would you?¬†Accommodating such a client not only harms the business of the individual artist, but the business of art as a whole, because it devalues the work we do to the point that we can’t make a living from it. Thus, clients should be made aware of these issues too, so they can deal fairly with artists, and so they can make educated buying decisions.

For more information, have a look at the Graphic Arts Guild’s very useful website, which deals with this and many other topics relevant to professional artists, and those who buy their art.

2 Comments

  • Comment by Brian — May 28, 2013 @ 1:20 pm

    Great post Chris!

  • Comment by admin — May 28, 2013 @ 4:21 pm

    Thanks Brian! Long time no see!

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