Home Forums The Art Business Center General Art Business Artist Retains All Reproduction Rights, but what about COMMISSIONED pieces?

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  • #993806
    BothHands
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        Hi, all ==

        My understanding is as follows: Sale of an existing painting results in me (the artist) retaining all rights to the reproduction of that image for any purpose.

        Assuming that’s accurate, what happens if a client/patron commissions a new painting based on his/her particular specifications?

        I’m still “the hands and mind” that refined and produced the art object, but the concept originated in the mind of the client…

        In the case of commissioned paintings, am I still entitled to all reproduction rights?

        #1246806
        virgil carter
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            It all depends on the terms of your agreement with the person who commissioned your painting. You do have a written agreement, right?

            Sling paint,
            Virgil

            Sling paint,
            Virgil Carter
            http://www.virgilcarterfineart.com/

            #1246835
            artbymdp
            Default

                In most cases you would retain rights to your work. By your post, it does not sound like a “Work for Hire” situation?? (Become familiar with the copyright laws that govern in your country). If a client buys full rights, there would be a very significant increase to your fee. Since you express doubt in the working relationship, you should clarify in writing the contractual agreement with your client before proceeding. With any commission you would be advised to have design, copyright, payment and shipping terms in writing.

                #1246811
                BothHands
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                    You do have a written agreement, right?

                    Well…er…not yet, but I expect to. :crossfingers:

                    I take your point regarding “anything’s possible”, but what would be customary in this case?

                    Imagine that a potential client says, “I want a painting of my pet duck.” I set to work and come with a flat-out AMAZING image of dat duck that has broad market appeal as a reproduction (prints, mugs, mouse pads, etc).

                    Is the client likely to say, “No no no! I commissioned that painting and it’s 100% MINE! You (me) can’t reproduce it or profit by any sales as a result.”

                    I realize we can attempt to resolve this matter beforehand in writing, but what is customary and/or reasonable in this scenario?

                    #1246812
                    BothHands
                    Default

                        Thanks, artbymdp, for your concise and informative post. If you have time/inclination, please refer to my post immediately following yours as it seeks to understand what the individual client‘s frame of mind is likely to be in a non-work-for-hire arrangement. When an individual commissions a painting, I think that agreement would not resemble an agreement pertaining to illustration or other work intended for publication.

                        #1246836
                        artbymdp
                        Default

                            I would advise that you proceed with a written agreement between you and your client. It could be very simple:
                            1. Define the artwork itself: Medium, surface, subject…
                            2. Payment: Total to be received and schedule of payments (Deposit, Progress, Completion)
                            3. Define review & approval process should there be one.
                            4. Copyright terms: Just a suggestion, Copyright 2016 “The artist (Your name) retains all rights to the artwork provided to (Your client) prior to and following completion of the sale. Reproduction of the artwork without the written consent of the artist shall be prohibited.”

                            5. Shipping and Handling: The client shall pay for all S&H including insurance.
                            I hope this helps.

                            #1246813
                            BothHands
                            Default

                                It sure does help. Thank you, counselor! My only question is whether you’ll be billing me as an attorney or a business management consultant. :D

                                I read your thread HERE, and your work is truly exceptional. I also visited your website – also very nice, very tasteful and clever. I’m sure your predicament can and will be resolved when you combineg two or more factors that haven’t yet occurred to you…

                                On the other hand, if you really do give up on Art, law school or an MBA seem like viable options…:evil: :D

                                #1246803

                                concepts and ideas are NOT copyrightable. Only finished artworks. You always retain copyright unless you specifically give it away (ie. by writing that in the contract) or if it is work for hire. Commissioned artwork in most countries (USA, UK, for example) is not legally work for hire. Work for hire generally means you are an employee and the commissioner is your employer – which means a lot of extra things like them paying employer taxes, providing all materials, set work hours, etc. (not always, but in most cases)

                                Remember that copyright is an implied legal right. It doesn’t need to be claimed or stated – it can only be lost by explicit instructions giving it away or, of course, by time elapsing.

                                Tina.

                                Abstract coast and geology art: www.tina-m.com | Art/Science gallery: www.grejczikgallery.com

                                #1246814
                                BothHands
                                Default

                                    Thanks, Tina. I appreciate your perspective on copyrights, and your discussion of it makes good sense. I’ll investigate further. As regards work-for-hire, my own experiences differ at bit from what you describe. You wrote:

                                    Work for hire generally means you are an employee and the commissioner is your employer – which means a lot of extra things like them paying employer taxes, providing all materials, set work hours, etc. (not always, but in most cases)

                                    I’ve done freelance illustrations for publications on a work-for-hire basis, and I was entirely an independent contractor. At least that was my understanding at the time. Each magazine simply wrote me a check for my fee. All expenses, taxes and other details were my responsibility. So I’m not sure the distinction you outline is accurate, but I appreciate your comments (and maybe the UK views work-for-hire differently than the US does…?).

                                    #1246804

                                    Freelance illustrators shouldn’t be work-for-hire in the sense it applies to copyright. I used to have a studio next to a former president of the Association of Illustrators here in the UK and he never gave away copyright. In fact he used to lecture me about it a lot. ;) Most of his work was for large brands and publications. He kept all his copyrights, though of course that didn’t mean he had any claim on their brands within the work. What it did mean was that they could only produce what was licensed in the contract and had to return to him for additional license (and payment to him) for more print runs, additional products, etc. And we’re talking brands like the BBC, for example.

                                    Tina.

                                    Abstract coast and geology art: www.tina-m.com | Art/Science gallery: www.grejczikgallery.com

                                    #1246815
                                    BothHands
                                    Default

                                        That’s a very important distinction you make, in reference to copyright specifically. I appreciate you going to extra lengths to emphasize that point. Certainly I will keep it in mind. Thanks a LOT. :D

                                        #1246807
                                        virgil carter
                                        Default

                                            Timelady makes a good point, saying, “…You always retain copyright unless you specifically give it away (ie. by writing that in the contract) or if it is work for hire…”, in the U.S. and UK.

                                            That said, a specific and written agreement, signed by both parties, which includes the specific purpose for which the commission is made and the specific rights of ownership and copyright is always a good idea inasmuch as the rights of all parties about important issues are clearly stated.

                                            There are lots of good examples on the Internet to study. Good luck!

                                            Sling paint,
                                            Virgil

                                            Sling paint,
                                            Virgil Carter
                                            http://www.virgilcarterfineart.com/

                                            #1246843
                                            members
                                            Default

                                                In most cases you would retain rights to your work. By your post, it does not sound like a “Work for Hire” situation?? (Become familiar with the copyright laws that govern in your country). If a client buys full rights, there would be a very significant increase to your fee. Since you express doubt in the working relationship, you should clarify in writing the contractual agreement with your client before proceeding. With any commission you would be advised to have design, copyright, payment and shipping terms in writing.

                                                I agree with this, and written agreement is how I handle commissions. Can be a digital written agreement so long as you both agree that that’s accepted. Also, I don’t ship/deliver the commission until the buyer approves and payment clears. A clause in my agreement that states I retain all copyrights and if the buyer wishes to license or buy rights it has to be by separate written agreement and fee. In the US, a “work for hire” is more about an employer and their regular employee, not contract work like commissions. http://copyright.gov/circs/circ09.pdf Even though this is what the law says, just to make sure buyers are clear on it, it’s best to have the written agreement.

                                                #1246816
                                                BothHands
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                                                    Many thanks to all of you who took the time to straighten me out on the distinction between Freelance and Work-for-Hire. In response your very helpful (and much needed) prodding, I found THIS PDF DOCUMENT that spells out the copyright considerations very clearly:
                                                    [INDENT]Owner of the Copyright in a Work Made for Hire
                                                    If a work is made for hire, the employer or other person
                                                    for whom the work was prepared is the initial owner of the
                                                    copyright unless both parties involved have signed a written
                                                    agreement to the contrary.
                                                    [/INDENT]
                                                    As for whether a painting commissioned by my client is indeed a work-for-hire, I would say it is not based on the following:
                                                    [INDENT]A work created by an independent contractor can be a work made for hire only if
                                                    (a) it falls within one of the nine
                                                    categories of works listed in part 2, and
                                                    (b) there is a written agreement between parties specifying that the work is a work made for hire.
                                                    [/INDENT]Here are the 9 categories, none of which describe a one-off painting or sculpture:
                                                    [INDENT]as a contribution to a collective work,
                                                    as a part of a motion picture or other audiovisual work,
                                                    as a translation,
                                                    as a supplementary work,
                                                    as a compilation,
                                                    as an instructional text,
                                                    as a test,
                                                    as answer material for a test, or
                                                    as an atlas
                                                    [/INDENT]

                                                    #1246817
                                                    BothHands
                                                    Default

                                                        I agree with this, and written agreement is how I handle commissions. Can be a digital written agreement so long as you both agree that that’s accepted. Also, I don’t ship/deliver the commission until the buyer approves and payment clears. A clause in my agreement that states I retain all copyrights and if the buyer wishes to license or buy rights it has to be by separate written agreement and fee. In the US, a “work for hire” is more about an employer and their regular employee, not contract work like commissions. [URL]http://copyright.gov/circs/circ09.pdf[/URL] Even though this is what the law says, just to make sure buyers are clear on it, it’s best to have the written agreement.

                                                        Cindy! Thanks for the very specific details and very helpful caveats. Only after Googling up and paraphrasing my own “discovery” did I read your post containing THE VERY SAME LINK! That’s amazing…

                                                        Thank you for digging up that link in my behalf, and for taking time to advise me and everyone here. The same goes for all who contributed to this thread. Thanks a LOT. :thumbsup:

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