Questions regarding illustration contract

xin li

@davidhohn could you elaborate a bit on the No for the seciton (a)? I think I do not quite understand what it means in practicle terms.

xin li

@Mara-Price I am considering it. thanks. I wish there are resources available for beginner illustrators regarding contracts: explaining legal terms in layman language, so I can actually look up.

Nyrryl Cadiz

these are all very valuable information! I'm eating them up.

NessIllustration

@xin-li I think it means that for the whole term you cannot publish similar work that could compete with this one. The problem here is that the terms are very vague, not allowing "substantially" similar work that could "reasonably" injure their sales. What does substantially mean to them? If it's a book about mermaids, do they mean you cannot publish another book with mermaids in it for the next 10 years? Or do they only mean you cannot trace your work and republish spreads that are 1-1 the same in another book? @davidhohn said that he responded to such a clause "This needs to be reasonably limited". I would probably ask for them to clarify what they mean first, and see if I agree with their definition (in which case I would ask to add the clarification to the contract) or don't agree (in which case I'd ask to restrict this clause).

Julia

Absolutely! When I work with lawers, they always push back on vague terms proposed by the lawers from the other party! Limitation of the clauses is key : in the scope of application and time.

xin li

Thank you so much @NessIllustration and @Julia. There is so much to learn. I will definitely watch out for the competing work clauses from now on.

I was hoping my agent would be able to take care of the contract-related matter but looks like we have a different standard. Would it be helpful to come up with a list of terms which includes terms for rights, competing works, work acceptance I would like to work with, and let the agent check the contract and negotiate based on the terms I listed, instead of having myself to go through every contract? or that is not a viable solution?

I feel like it adds a lot on busy days when a contract is typically 15 - 30 pages and written in a legal language I can barely grasp.

davidhohn

@xin-li Have a look at this:

https://www.amazon.com/Business-Legal-Forms-Illustrators/dp/1581153643

davidhohn

@xin-li wrote:

(a) The Illustrator agrees that during the term of this Agreement the Illustrator will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is reasonably likely to injure its sale or the exploitation of the other rights granted herein.

The "term of this Agreement" typically means "as long as the book is in print and protected by copyright" The full timeframe of which would be your life + 70 years (when the book would enter the public domain)

So, for your life + 70 years (after you are dead) you have to ask the publisher if they will allow you to publish a book that is either:
•"substantially similar"
or
• That the publisher feels is likely to damage their ability to sell the book
or
• Somehow makes it hard for the publisher to exploit any of the various other rights you have licensed in other areas of the contract

As was mentioned by @NessIllustration these terms are vague. What is "similar" to one editor, or publisher might be something quite different to another. And staffing a publishing houses change all the time. So an answer in 2020 might be quite different in 2030 depending on who is evaluating "similar".

Speaking from direct experience, you WILL be offered other books that are in some way similar to the last book you did.
I did a fairy book in early 2001. For the next 5 years all I was offered were fairy books. I did a religious book in 2006 immediately offered a number of other religious books. In 2018 I was offered a illustrated bible AND a book about Noah Ark from two different publishers, with both books scheduled to come out at the same time.

I was concerned enough about this issue that I had a chat with my editor. She was very nice (my contracts with this publisher don't include clauses like this) but still she did say that she would prefer I didn't do both. I decided to pass on the Noah Ark book.

In 2019 I did a historical picture book biography about a woman , and the last three books I've been offered have all been -- wait for it -- historical picture book biographies about women.

The idea that I might be prevented, or limited in any way (even by a requirement to "ask permission "from a publisher I worked with years or even decades ago) from taking on a new book project by a past book project is unreasonable in my opinion.

Clearly I am not insensitive to the concerns a publisher might have. I am more than willing to have those conversations with a publisher. But for me a clause like this comes down to who should have agency / control over my future career.
I feel that I (and not a past client) should be the one to determine a potential conflict of interest. I should be the one deciding if I should accept or pass on a project.

Julia

@xin-li it is an excellent idea! We could build our ideal frame contract with the inputs from all the working illustrators on the forum! I guess there would be some difference US / non US law but they should be minimal. Contracts are pretty standardized nowadays.

I say "we" but I am not an illustrator - yet if I was, I would love participating in a collaborative work on that topic...

xin li

@davidhohn oh. I am speechless about this type of clause exist. I thought the term of this agreement meant the half a year I was contracted to do the illustration work, I have no clue this means "as long as the book is in print and protected by copyright".

I think I might have just signed 2 contracts which have similar clauses like that. The clauses I copied here was the third contract I recieved. What alarmed me what the seciton (b), I did not even find (a) unreasonable before reading your explaination...

Are there stories out there that publishers sue illustrators for breaking the competeing work clause? The clause is so unreasonable that I found it hard to believe.

I will check out the book you posted. Thank you so much for explaining the term and for the book tip.

Coley

Excellent thread of questions and answers

xin li

@Julia haha. Your point of the scope of application and time was excellent. It changes my way of thinking around contracts. You might become an illustrator - you never know when you are hanging around svs forum.

I keep thinking maybe there is something I did not understand. If it is possible to build an ideal frame contract, I think someone would have done this long time ago: children's book illustration is a very established industry after all. I need to look into this. Maybe the starting point would be have a list of things to watchout for with illustrator contracts. Time to start reading the book David mentioned.

I reached out to AOI (the British Association of illustrators), they have legal advice service to its members. Maybe I am able to get someone helping me looking through the contract and expain the terms for me. That would be a huge learning - I am hoping for that.

MirkaH

@xin-li With previous contracts. I have gone over the contract step by step, and have asked if there is anything that I was not sure about. If my agent was not able to explain a clause to me, we would ask the publisher or the agency contract expert for clarification. Yes, your agent can negotiate for you, but you also have to be your own advocate and understand what you are signing.

xin li

@MirkaH Thank you for sharing yoru experience. I definitely made a mistake with the previous 2 contracts. Lesson learned. I basically told my agent the explaination I got from David, and asking for a meeting to discuss the current contract. I am sure she will be cool what that - we have a very good dialog since we started working.

I think my attitude towards contracts has been colored by living in Norway for the last 10 years or so. A contract with a publisher here is more or less a formality. Yes, there is room for negociating advance, royalties, but most of the terms such as rights are more or less standard. The last contract I recieved from my norwegian editor is about 2 pages. The business culture around the world is obviously very different. I am glad I asked the questions here. Now I have somewhere to start to learn.

Julia

@xin-li be aware of short contracts as well and do not hesitate to suggest the addition of protective clauses if there is any ambiguity from what is unsaid/undefined.
I know!! Hard when you have little experience of contracts!

xin li

@Julia A little easier when I have you guys around :-).

idid

first I would like to congratulate you on working with the big five!

Regarding "competing work", here is what I found Googling, http://www.rightsofwriters.com/2011/04/no-competing-works-third-nastiest_19.html,

This article also provide ways to tackle with such issue. There are several different versions of "competing work" if you read this article. You can negotiate to a better one. It would be horrible if publishers use the most broad definition of "competing work", as that means starving for artists ... I don't think that is the purpose of most publishers. So don't get over stressed

xin li

@idid thank you so much for the article. I basically retold the explanation that David wrote here to my agent. I told her that it would be bad for both me and the agency if we keep signing contracts like that. I asked for a meeting.

When I read the article you posted here, the two contracts I have signed basically have more or less the strictest version of competing work (of course, my skill of reading legal documents is rather limited). I already felt a bit restricted. As my agent told me one of the stories I am writing now might be in conflict with the "competing work" clause - which I disagreed with, because in my very objective point of view: my story is very unique in every way. :-). It is a complicated matter. The case is inconclusive as both me and the agent are busy, we have not reached out to the editor regarding whether my story is in conflict with the clause yet.

AOI has agreed to read through my current contract and help me out to understand the legal terms. I decide to get a neutral part to help out with the contract. They have comfirmed in the email that "conflicting work" is something they would recommend to strick out, or get it to be very specific, and limited. I am waiting to hear more from them about the contract.

For anyone who is just entering publishing now, just pay attension to the "Competing work", or "conflicking work" section on your contract. I have recieved 3 contracts during the last 2 months, and all of them have very strict competing work clauses. So maybe this has become the "New Norm" for beginner artists, the same with exclusive rights? Let us push this back, together.

As I understand the publishing world is a very hierarchical industry. When we are new, it is hard to bargain. But I really think it is a problem if we do not say anything, we just make the industry a lot harder for ourselves to work with, and for the artists who come after us. I will try to make noises, and I hope you do too.

Coley

@xin-li I have learned so much from this thread. I’m positive I would have repeated what you did with my first couple contracts (if I ever get any). I really dislike paperwork especially this sort of thing. But I will be thoroughly going through things in detail and I know more about the kinds of things to look out for, and how to handle them. So thank you for sharing and asking so many questions. This type of information can save people so much headache when they’re first starting out.

xin li

@Coley I will try to start a list of things to watch out for after I have AOI read through my current contract, and have an in-depth discussion with my agent.

I know the 2 things you can start pay attention to your contract:

"Exclusive right" - ask why it need to be exclusive rights, what excatly they ask for, what rights you have with your artwork?
"Competing work" - ask the client to strike out or be very specific in both scope and time.

I hope maybe other more experienced illustrators can chip in on this topic. It would be in no way a complete list of things to pay attension to, but it will be a start.