Questions regarding illustration contract

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.

idid

@xin-li Glad it helped. You are really making effort to not only make this community better for the whole community -- thank you! and I am very touched by that. I hope this does not take up too much of your time, and the issue can be solved smoothly.

I almost wonder if "competing work" is a cliche (overused without truly understanding its meaning) nowadays in contracts ... But anyway, you want something written from the publisher explaining how they define this clause, so that at least you can work on your own book with a peace of mind. Best of luck! and looking forward to reading your book someday.

xin li

I received a bit of legal advise on my current contract.
Regarding conflicting work: the advise is very consistent as what has been covered in this thread, try to strike it out if I can; if the publisher insists, try to limit both time and scope.

Regarding exclusive rights: as far as I understood the reply I got, the exclusive right on my current contract is only covering book publishing. The advisor says I can always negotiate the region/language the exclusive right covers. The advisor also told me that he has not heard of short term book licences (3 -5 years) with publishing houses.

The exclusive right prevents me to take characters from one book and use it in another and license it to another publisher for example. But making art prints, stickers, greeting cards etc would be under the rights of making merchandise, which is not granted to the publisher according to the contract. But the advisor has recommended that I mention this to the publisher if I have the intension of doing merchandise with the artwork.

@NessIllustration I am curious if this fits with your past experience regarding exclusive right? I still can not get my head around all these. When you say non-exclusive rights, what does it mean in practical terms?

NessIllustration

@xin-li Non-exclusive means they have the right to use the artwork, but they may not be the only party that you grant that right to. You have the right to use your images to create products, and you could also grant a license to other companies. Whenever I've licensed rights before there has always been some sort of mention that I cannot license it for books. I haven't gotten any professional legal advice about this, but to me it sounds fair enough because any book from another company using the exact illustrations as from the first book would be in direct competition. But I can license the images again for whatever else I want that's not books: packaging, stationary, curtains, whatever! I could also make products myself, like art prints and such. Would love to hear what others think about this - do you also feel this is fair enough?

xin li

@NessIllustration yes. what you explained seems like is what my contract says.

They have the exclusive right to printing books during the term of the copyright. To think of it, it makes sense to me. Would love to hear what others think also.
They do not have the right to make other products - which means I can license the image to greet card company, stational, or make my own product.

So the exclusive right in my contract is not an exclusive right for everything. This is really confusing.

NessIllustration

@xin-li It really is! I suggest double-checking with the client that this is what they mean, just in case So everyone is on the same page! Reading legalese is never a fun time, is it...

davidhohn

@xin-li

So the exclusive right in my contract is not an exclusive right for everything. This is really confusing.

It can be confusing, I know. Which is odd because the goal of the wording of these contracts is intended to be as legally clear as possible should a conflict ever need to be arbitrated.

Knowing the "ground rules" goes a long way to quickly and easily understanding contracts. Or at least being able to quickly recognize a clause that has the potential of misunderstanding down the road. The effort you are making now will pay off over the course of your career!

It's important to understand that your copyright is actually made up of a bundle of rights. I think of it as a bundle of golden twigs. Each twig is a right that you can specifically and independently license. Like "reproducing the images in book form", or "reproducing the images as greeting cards " or "creating derivatives of the images as stuffed toys" etc.

And each of those golden twigs can be limited by "time", "geographic scope", "number of reproductions" and "exclusive" or "non-exclusive". (This list is not comprehensive BTW, I'm sure there are other way to limit the usage that I'm not thinking of)

I agree fully with @NessIllustration's last comment. It is always better to confirm with your client exactly what rights they expect to license and exploit as part of your Grant of Rights. The larger more expansive the Grant of Rights the larger the associated licensing fee (if it is a flat fee project) or the more royalties you should expect to earn (if it is a royalty base project)

xin li

@NessIllustration Thank you so much.
@davidhohn Your visual way of describing the copyright as a bundle of golden twigs made so much sense. Why contract does not come as an information visualization instead of 30 pages all legal text:-). oh. why oh why.

Thank you so much for taking the time contributing to this thread, I learned so much. Now I see understanding contracts and copyrights is one of the very important aspects of planning my creative career long term, what are the possibilities, oppotunities. etc.

Julia

It does exist, the vizualisation thing. It is called a term sheet. It summarizes in (mostly) plain English all the important terms of agreement and it usually circulates between the parties before the contract is drafted.
It is usually a couple to a handful of pages when the final contract is 120+ pages. If your contract is "only" 30 pages, I don't think the concept of term sheet exists in the illustration industry.

That said, we could definitely build our own standard term sheet (what we want in a contract and what are the points of attention).

This could be a useful guideline when reviewing a contract proposed by a publisher and help navigate the tricky clauses (what is missing,what needs to be limited, etc).