BY POPPY EVANS©

If you find a seed catalog at a flea market dating back to 1920,
can you use the illustrations within it? Can you make a drawing
from a photograph of a tree you find in a magazine?

Who owns the rights in these situations? What are your rights as
an artist? Contracts between artists and art buyers present a
formidable challenge of legalese and business terminology that
are difficult for even the most experienced artists to decipher.
Here's what you need to know.



Q: What is a copyright?

According to the dictionary, copyright is "the exclusive legal right
to reproduce, publish, and sell a literary, musical or artistic
work." Technically, anything you produce is copyrighted as soon
as you produce it if it falls under the the category of being a
literary, musical or artistic work. As the owner of a copyrighted
work you own the rights to its reproduction, display, distribution
and adaptation to derivative works. Ideas, on the other hand, need
to be patented or otherwise protected. You can't copyright an
idea for a "Bald Guy" line of apparel, but you can copyright the
"Bald Guy" illustration that will appear on it to protect yourself
from having another person copy it.

Q: What constitutes copyright infringement?

Anyone who copies a protected work owned by someone else or
exercises an exclusive right without authorization is liable for
infringement. The penalties for copyright infringement are very
high, as much as $100,000 for each act of "willful infringement,"
meaning that you knew you were copying someone else's work but
did it anyway.

Q: What is a copyright notice?

A copyright notice consists of the word "Copyright" or its symbol
©, the year the work was created or first published, and the full
name of the copyright owner. It should be placed where it can
easily be seen, on the front or back of an illustration or artwork.
It's also common practice to place your printed copyright notice
on slides or photographs sent to potential clients or galleries by
affixing labels to slide mounts or to the back of photographs.

Q: Why should I place a copyright notice on my work?

The symbol © is primarily a warning to potential plagiarizers.
Works published before 1989 must carry a copyright notice to be
protected under copyright laws. Works published after that time
don't need to carry a copyright notice to be protected by
copyright laws. Although, according to today's laws, placing the
copyright symbol on your work isn't absolutely necessary to claim
copyright infringement, it's always in your best interest to have
used this symbol as a warning if you do take a plagiarizer to
court.

Q: Should I register my copyrighted work with the U.S.
Copyright Office?

The moment a piece of work is created, it is copyrighted material.
The benefits for registering your work are basically procedural
and can give you additional clout if an infringement does occur
and you decide to take the offender to court. In fact, without a
copyright registration, it may not be economically feasible for you
to file suit to protect your copyright. You'd be entitled only to
your damages and the infringer's profits. These may not equal
the cost of litigating the case. Registering your work before or
shortly after publication is important, because you need to
register your work before litigation occurs.

Q: How do I apply for a copyright?

To register your work with the U.S. Copyright office, call the
Copyright Form Hotline at (202) 707-9100 and ask for package
115 and circulars 40 and 40A. (Cartoonists should ask for
package 111 and circular 44.) You can also write to the Copyright
Office, Library of Congress, Washington DC 20559, Attn:
Information Publications, Section LM0455. Registering your work
will cost $20.

Q: Why do I need to learn about transferring copyright?

Transferring a copyright on a temporary basis is how artists
make a living off their work. Savvy artists who understand how
this works can reap financial benefits by collecting more than one
fee for the art they produce. There are many types of transfer
rights that can be negotiated.

When you sign an agreement with a magazine for one-time rights
to an illustration, you are transferring part of your copyright to
the magazine. In this instance, ownership of some of your
exclusive rights are transferred because you've given the
magazine the right to use your illustration one time. As evidence
that the transfer has taken place and permission has been
granted, you sign a contract or other document stating the
terms of the transfer agreement.

Q: Why is it important to negotiate rights?

Negotiating the rights for an assignment is just as important as
negotiating the fee. If you fail to do this, you could be throwing
away future opportunities to promote and profit from your work
as well as jeopardize your relationship with your client through
misunderstandings.

Q: What happens when I agree to a contract that allows
my client "one-time rights" to my work? How does this
differ from "first rights" or "exclusive rights"?

"One-time rights" means the artwork is "leased" for one use. The
buyer has no guarantee he is the first to use the art. If your
client wants "first rights" he should expect to pay slightly more
for the privilege of being the first to use the art. "Exclusive
rights" means the buyer can use the art exclusively in his
particular market. With an agreement of this type, your art may
be used exclusively by the buyer in the greeting card industry, but
you would retain the rights to sell the art to a magazine because
it would be used in a noncompeting market. In all of these
instances, the rights revert back to you after use.

Q: What are reprint rights, subsidiary rights and
promotion rights?

Reprint or serial rights give a publication the right to print your
work after it has already appeared in another publication.
Subsidiary rights cover additional rights purchased such as
including an illustration in the second printing or paperback edition
of a book. Granting promotion rights allows your client to use
your work for promotional purposes. In the case of an editorial
illustration, this would apply if the article where the illustration
appears is subsequently reprinted and used as a subscription
premium. Artists granting reprint, subsidiary or promotion rights
should check their contract to see if they will be paid a
percentage of the original price when a reprint is made. Industry
standards range from 25-50%.

Q: A client has asked me to illustrate a series of
cartoon characters for animation as "work for hire." Will
I lose my claim to future use of these characters?

Be careful when agreeing to this contract. It means you won't own
your copyrighted work—your client will. As an artist, you would be
surrendering all rights to use these character illustrations in the
future, plus any claims to additional compensation through
royalties if the animation becomes a big success. "Work for hire"
contracts are often used if the work involved is a contribution to
a collective work such as a motion picture or animated cartoon.
"Work for hire" also refers to artwork produced as part of your
employment, but as a freelancer, you won't be entitled to any
type of employment benefits if you agree to these terms—you're
just missing out on the opportunity to realize additional income
you deserve.

Q: What's an "all rights" contract?

This involves selling or assigning all rights to a piece of artwork
for a specified period of time. The buyer has no limitations placed
upon use of the art during an agreed-upon time period, but when
that time period has ended, rights revert back to the artist.

Q: Can anybody use a copyrighted work after the artist
who created it dies?

Copyright protection lasts for the life of the artist plus 70 years.
For works created by 2 or more people, protection lasts for the
life of the last survivor plus 70 years. For works created
anonymously or under a pseudonym, protection lasts for 100
years after the work is completed or 75 years after publication,
whichever comes first. Older artistic creations which are no
longer protected by copyright fall into a category called public
domain, and can be used by anyone without permission. This
means that uncredited illustrations and photographs found in
printed materials published prior to 1925 can be used without
copyright restrictions. Other work in the public domain and not
protected by copyright is work created by the U.S. government.

Q: I want to do some drawings of Frank Sinatra and sell
copies. What are the rules when it comes to illustrating
celebrities?

First of all, if you're not working from your own photographs or
memory, you need to obtain permission from the photographer
who created the photo you will be using as reference material.
(You do not need to get permission from photographers if you
create portraits or caricatures based on dozens of photographs
from different sources and you are careful to not to include
elements that would make it obvious you copied from a particular
photograph.)
Secondly, under the rights of publicity, Frank Sinatra had
exclusive right during his lifetime to control the use of his image
in prints, poster, etc. The rights of publicity aren't covered under
copyright law, but are covered by state law and may vary from
state to state. In most states, these rights pass to the heirs
after the individual's death, so you're likely to run into legal
problems if the distribution of your Frank Sinatra drawing is on a
national level. In this case, you would be wise to obtain permission
from his heirs.



Q: Can I use someone else's photograph as reference
material for a painting I'm creating?

If you're copying a photograph, you must get the photographer's
permission. Photographs are protected by copyright laws just as
illustrations are. Even though it's in a different medium, you're
violating the photographer's copyright if you copy a photograph in
your painting. If a photographer grants permission to use one of
his photos as a reference, he may also require that you credit
him when your painting is completed. However, if it's not in your
agreement, you aren't under legal obligation to do this.

Q: Can I draw a sculpture I recently saw in a gallery and
use it as an illustration subject?

You can't draw the sculpture without contacting the artist and
getting written permission. A sculpture, like a photograph, is a
copyrighted piece of art.

Q: The photograph I want to use as a reference is from a
stock photo I've paid for as a "one-time" use situation.
Can't I create an illustration from it if I've paid for
these rights?

Your "one-time rights" in this situation apply to using the
photograph in a piece of published material—not re-creating it as
an illustration for which you could ultimately claim exclusive
rights. The stock agency is strictly a licensing agent in this
agreement. You still need to obtain permission from the
photographer before using a stock photo as the basis for your
own illustration.

Q: If I see a photo of Mount Fuji in National Geographic,
can I develop an illustration from this?

Photographs that appear in magazines are usually copyrighted by
the magazine or by the photographer or sometimes by both.
Under copyright law, the owner of the photo's copyright has the
exclusive right to this image. Again, you would need to get
permission from the magazine and/or photographer in order to
use it as the basis for your own illustration.

Q: When I do an illustration, I draw and paint images
from a variety of published photographs and combine
them with backgrounds I've drawn from other published
photos. To protect myself, do I still need to get
permission from the photographers or publishers
involved?

To constitute a copyright infringement, a "copy" must be
"substantially similar" to the original work. If your finished
illustration looks different from any of the originals you used as a
reference material, you shouldn't need to obtain permission.

Q: How does licensing work?

When you grant a license for a copyrighted piece of artwork
you're giving permission for an individual or company to make a
derivative work—a work derived from the original that produces a
second-generation image or product for a specific time period for
a specific use. The derivative work can take many forms;
companies could feature your art on apparel, notecards or
products. Because derivative works are based on an original and
are usually created as products for sale, it's not unusual for the
creator of the original to receive royalty compensation.

Q: What are royalty fees?

Royalty fees are the percentage of the sales that an artist
receives every time a derivative work is sold, typically around
5-7% of the wholesale price. Not all licensing agreements involve
royalties, but it's always in an artist's best interest to seek
compensation of this type. Other things to look for in an
agreement are a say in quality control and product distribution.

Q: How do stock agencies work when they license the use
of stock illustration? What kind of compensation can I
expect if I grant licensing rights of my illustration to a
stock agency?

Stock agencies grant a license for one-time use of an image to a
user for an agreed-upon fee. Stock illustration agencies generally
have a contractual arrangement with their artists that involves
royalty compensation every time the illustration is used. In most
cases, this percentage will range from 30-50%. Stock agencies
will often take work originally commissioned for another job,
giving artists a way to generate additional income from work that
has appeared elsewhere.

Q: Can I create a duplicate of a painting I've just sold if
another buyer wants to buy it as well?

This depends on your arrangement with the art buyer. If you do
not sell the copyright to your painting and express this in writing,
you can create a duplicate of it. However, many art collectors
purchase an original with the belief that the work is unique and will
remain so. The best way to avoid trouble is to make clear in
writing that you are free to produce the same or similar piece for
someone or have the buyer acknowledge in writing that the piece
was purchased with no express or implied warranties.

Q: Can I sell reproductions of a drawing after I've sold
the original?

Selling a work of art is separate and distinct from selling your
copyright to it. Unless you sign a document to the contrary, your
copyright isn't transferred when you sell the drawing, meaning
that because you own the copyright to the original, you can legally
sell reproductions of it.

For More Information
Any more questions? Lots of information on copyright is available
just for the asking. Visit the official site for the United States
Copyright Office at http://lcweb.loc.gov/copyright/ or contact
the U.S. Copyright Office, Library of Congress, 101 Independence
Ave., S.E., Washington DC 20559-6000, or call the Copyright
Office information line at (202) 707-3000.

This FAQ originally appeared in How Magazine's 2000 Artist's &
Graphic Designer's Market.

POPPY EVANS is a graphic designer and writer for the design
industry. She is the author of the Graphic Designer's Ultimate
Resource Directory, Fresh Ideas in Photoshop, The Best
Seasonal Promotions and The Complete Guide to Eco-Friendly
Design, available at www.howdesign.com/stor

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