Copyright?

amberwingart

@corykerr Holy cow - really?? Oh boy, I've really kinda messed myself up on this one then... I've been wanting to do a tarot card set of my own and all of a sudden I get hired by this woman who wants to do the EXACT SAME THING I've been thinking about doing on my own. But she wants it to be a work for hire, but give me attribution, just no rights. She also wants to be able to use the images on mugs, t-shirts, etc. Now I'm wondering if I should turn this one down...

@Lee-White - what do you think? Should I bow out of this? Or should I say no to the work for hire? She's made it clear she definitely wants a work for hire. I need to make a decision before I meet with her on Thursday...

She's really nice, but I've kind of had a strange feeling I was going to get unpleasantly surprised by this one, even though it's a $10,507 job...

Lee White

If she wants the rights, you can do a number of things.

Give her the rights, but add an extra fee for it. $50 per image perhaps for a buyout.
Offer you royalties on the project. This rewards a successful project and costs her nothing.
Don't give her work for hire rights. Just giver her the rights to do the tarot deck with a certain number of copies.

Keep things upbeat. Things like "I'd be happy to sell you the rights to the images. That costs $50 per image extra for a buyout." etc. Just keep it up like it's all normal. Because it is normal. Clients have to deal with rights licensing all the time. It's part of what we do.

Sometimes it's our job to educate the client on these issues. It's not super fun, but it's essential.

amberwingart

@Lee-White Thank you again, Lee. I'm feeling like a dunce again, because I already told her it wasn't necessary to give me royalties. I should never be allowed to speak to clients. Seriously. I'm just kicking myself.

corykerr

@amberwingart It's okay. All is not lost. @Lee-White has some great thoughts. I'll throw this one in there too: we all go through this learning curve as we figure this stuff out.

If she is a good client/person/etc, she'll respect that you're interested in this being a mutually beneficial relationship. If one side of the deal is getting screwed, then that causes poor feelings which in turn hurts the work and future projects. It is in both of your best interests to make sure you cut a deal that works for both of you.

Also, I know $10k feels like a lot, but remember how much work you're anticipating. Don't get star struck by the big numbers and make sure to get some money up front and then each time to turn over work AND (I can't stress this enough) absolutely under no circumstances do you turn over high resolution files until you receive the final payment. No matter how rushed, or what story you're told, no print ready files without full payment. I call this a "studio rule" to my clients. I often tell them, "I know that you're not the type of person that would stiff me, but I've been burnt before, so I have a couple of simple rules to avoid that. I hope you understand."

Also, make sure you have a "kill fee" in the contract. In fact, I have a little video that might help: https://youtu.be/8ZcW_s_nZXg

The most important thing to remember is that you'll be okay. Everything will work out and be fine. Present your case and work out a mutually beneficial deal or walk away. Either way, do so professionally without burning bridges and you'll be okay.

You got this!

amberwingart

@corykerr Thank you again, Cory. I'm feeling a lot better about it now. I just have to keep reminding myself that it's my first time, so of course there will be some hiccups. I haven't gotten to the business videos here yet though because I'm working my way up. I guess I'm going to have to jump ahead .

Leontine

Congrats! The assignment fits you well I think. According to the rights, I stand with Cory. If you hand over the rights, the customer can resell your illustrations all over the world, therefor you have to be rewarded. I onces made the mistake by handing over the rights with small extra costs, the costumer reselled the illustrations to several other companies. Its really not Funny to walk in to a store and see the books over and over, knowing how much effort there was, and the payment I got at that time. Be ware of that. Good luck!

corykerr

@amberwingart You'll do great! and business mistakes are not lethal, they're lessons. I'm happy to help anytime. Hit me up here or on twitter.com/corykerr

amberwingart

@corykerr Thank you! That video of yours is really helpful, btw! I'm working on the contract right now, but it brought up yet another question...is the illustrator responsible for the photography of the pieces if it's done in traditional media? Is there any extra charge to the client if we are?

I posted that question to Lee on another thread, but I'm not sure who's going to see it first & I have to have the contract to the client today...

amberwingart

Wow. This is getting really complicated. The client wants me to sign a contract that says the following:

"Waiver of Copyright and Credit for Creation. The Visual Artist acknowledges that the Visual Art is being ghost created for **** and the Visual Artist shall not claim any copyright or moral rights over the Visual Art. Furthermore, the Visual Artist grants **** full authority to claim they were the creator of the Visual Art and may take full credit for same. The Visual Artist shall in no way object, or disclose to any third party that they were the Visual Artist of any visual art."

When she and I spoke, she said she was giving me attribution and in the job description on Upwork, she said she's giving attribution to me. She never said anything about me pretending like she drew it. Earlier in the contract, it also says I can be sued if something else I create looks like it's derived from this deck. So basically, if I do my own tarot deck with animals, I can be sued and I can never tell anyone that I created her deck.

I'm using the contract from the Graphic Arts Guild. Shouldn't we just have ONE contract? Should I be signing a SECOND contract for the same project?

I don't feel right about this. I know that $10,000 is a lot of money for a first illustration job, but this is feeling less and less right. I'm charging her $133 per image and giving her full copyrights.

It seems to me that I shouldn't be signing a second contract, because mine and hers could conflict.

@Lee-White @corykerr - I'm not sure which of you will see this first, but help would be greatly appreciated...

Dulcie

Goodness me @amberwingart ...again I'm no authority on contracts, but I'm pretty sure that letting the client pretend to be the artist, and you not even being allowed to claim that you're the artist of the work - is utterly bonkers and a completely unreasonable thing to ask!

Every artist is going to want to put their work in their portfolio, to show what they can do, to get future work, and so on, even if they can't show it until the project is published. It's a basic part of being an artist. It's dishonest for your client to pretend that they created the work. It also contradicts the 'giving you attribution' part that you originally discussed.

I don't like the sound of this at all - also the 'being able to sue you if you do something similar' part. Your art and your style is your own and you don't want to be getting into problems like this. Personally I'd lay out the terms that you want (sensible ones, using your own contract, and just one contract in total) and be prepared to walk away if you can't come to a good agreement. Hope it works out for you though... good luck...and hopefully someone with more experience will comment too.

Kevin Longueil

@amberwingart This sounds so shady to me - your work is too good for this person - I would chalk this up to a learning experience before you do all of this work - I think the terms of the contract are unkind and unethical - one thing though is anyone can now see by reading your post who your client will be and that you are making a Tarot deck that they will be pretending to have made themselves....so will they sue you after you make the deck for them because of this post where the cat has been let out of the bag? Not meaning to make you nervous but they have made it clear that they are not reasonable and are litigious - I do like Dulcie's idea of bringing your contract (where you keep the rights) and walking away if they are not willing to be professional - (sorry this is a bit of a rant )

amberwingart

Thank you, @Dulcie & @Kevin-Longueil - I'm just not feeling right about it either. It's especially concerning because when we spoke on the phone the other day, I told her that literally just 3 days before I found and applied for her job posting, I'd started creating a tarot deck myself that I was going to self publish and it's this EXACT same idea! So I told her I would discontinue that and do a different deck in the future when I finish hers. But at NO point in the conversation did I tell her that I would be a "ghost writer" for her and that she could claim she created it. In fact, she said that she'd give me attribution (I wouldn't do it if she didn't, because then this would give me no future work and 20 months worth of work would be useless to me).

Kevin, yeah, I think this thread would definitely constitute a breach of contract, if I signed it. I already know there's no way I'll sign that. In fact, for only $10,507, I don't feel comfortable selling all of the rights because she wants to use the images in a popular app, as well on merchandise.

I've been working on my contract all day. A fellow artist said that I should just give her the choice between publishing rights, where I charge her $133 per image (equalling $10,507) or exclusive rights, where I charge her $300 per image, but not sell her a buy out. What do you think - is $300 an image too much? That's be around $20,000 - I don't know if that's too much to ask...

amberwingart

UPDATE 1: So...after watching the business vids here at SVS, I found that I should never have entertained this gig because it's a "work for hire" job. And that contract the client expects me to sign explains why. The Graphic Artists Guild confirmed the same thing: don't take a work for hire gig.

So I submitted a rough contract to her that has my terms, which include a higher price for giving exclusive rights, but not a buy out. I'm expecting her to of course reject it, which I'm okay with because it's a lot better than feeling taken advantage of for 20 months (the length of the project). I'll update again when I hear back from the client. This has been a big learning experience and a sad one, since I was so excited my art was chosen & I really wanted to do this project, but I guess this was an important lesson.

smceccarelli

I did not tune in in this discussion as I have never drafted or signed a freelancer contract, so my knowledge is purely theoretical. Just wanted to point out that a "work-for-hire" type of contract is what you sign as an employee (as I am) - you relinquish all rights including attribution of the art. This is what happens in the case of all Disney, Dreamworks, etc.... artists. So it is not "unethical" or "unkind" - it is just not appropriate for a freelancer, who does not get a fixed salary every month and all the perks and benefits associated with it. The clause about her being able to sue you if you claim to be the artist or if you do something similar to this work is also a standard clause in this type of contracts.
I think a freelance should not be asked to sign such contracts and should probably not agree to do it (as I understand you have already decided), but the world is big and I am sure there are exceptions to everything.
Regarding fees, you may be aware from Lee White's videos that Wizards of the Coast, one of the most prominent producers of card games, pays between 500 and 2000 USD per card depending on the renown of the artist. Also, I do not thing they use work-for-hire contracts
So 130 USD per card is ridiculously low!
And, as I guess you have already realized, you can have only one valid contract between two parties....
In all of these discussion, the voice that I found most inspiring is Will Terry's - he has an old video about fees and gigs where he basically lays down a decision process for the artist, which includes reasons to take underpaid gigs (like "experience" or "I really would like to do this job" or "it really would help my portfolio"). I have just agreed to a seriously underpaid job (pending reviewing the contract) because it is from an educational publisher and I very much like the art direction - and it would be my first children publishing job, so I really need the experience. But it is only 8 images - I would not have taken it if it had blocked me for half a year - that was an important aspect for me.
Anyhow, I think you have sorted your thinking in the right way, and whatever comes out of it, it is under your control it, so it is always a positive outcome, even if you decide not to do the job! Maybe you could take it as a sign to really invest in your own tarot deck and bring it to market within the same time-frame!

amberwingart

@smceccarelli This has been so difficult for me because I don't know what's considered "normal" in the industry (although Lee's business vids here have cleared a lot of things up). But $10,000 is a LOT of money to me...but another artist I talked to and everything I've read on the Internet have said that I should be getting a lot more for a job that will take 20 months and entail 79 images, with multiple sketches. I'd be producing 3-5 finished images per month, which would come out to about $500 per month. I work traditionally and I'm slow, so I know it's unrealistic for me to think I can produce more than 5-10 rounds of sketches and revisions & 5 finished pieces per month.

So I'm just so torn. My family really needs the money right now, but as Lee said in one of his videos, I don't want to come from a place of desperation or I'll get myself into a bad situation. What I've come down to though is that 1) I will not say she created the artwork. We didn't discuss that at all and if she'd mentioned it I would have ended the call right there. The main reason I want to do this is to get potential other jobs from it. 2) I don't feel comfortable giving all of the rights if it means that I can never create my own tarot deck or do tarot decks for other people.

I guess I'll see what her reaction is today, but I'm fairly certain that she won't agree to the things that are important to me. But you know what? That's actually okay by me because you're right - I'll just do my tarot deck on my own like I'd planned :).

amberwingart

I've got two threads going about what I thought was going to be a train wreck, lol, but I want to be sure everyone who's been helping me with it sees this...Here's today's update after my meeting with the client:

HOLY MOLE!! Thank you @Lee-White for your business videos and your advice - they just saved what I thought was an unsave-able negotiation. I watched your video 3 and I screen capped a few things you had up so that I could educate the client on things like work for hire, buy out of rights, typical pricing, length of time it takes an illustrator to create a piece, etc. And then I encouraged her to do a little research herself and to look at other illustrators on Upwork, where she hired me. I told her that she could definitely get someone for cheaper, but she'll have to make some concessions somewhere, with style, time, etc. and most likely they won't have the knowledge of the tarot, animal symbolism & astrology that I have, which means she'll have to give them a lot more direction, rather than getting ideas. Watching the video really helped me to feel confident about what I was saying to her, which helped her calm down.

At first she was clearly really upset, but after I talked with her she said she understood and she started asking me about other ways to pay me, like getting shares in her business or collaborating on the project, with me getting a percentage of the profits in return for a lower pay, and with us sharing copyrights (I'll have to ask about that). I said I'd definitely be interested in that, as long as I get attribution.

Speaking of attribution, she apologized profusely for the portion of her contract that said that she'd take credit for creating it and she said that she didn't know it was in there (I don't believe that, because a few seconds later she was talking about how celebrities have tarot card sets that only have their name on them and not the artist's, but whatever, I told her I wouldn't do that and she agreed).

SO, the train is back on track. I'm thinking of offering her exclusive unlimited worldwide rights for the original $10,5007, plus me getting 25% of the profits from the sale of the tarot, app & merchandise. Or is that too much? I don't know what percentage I should ask for...

There's no guarantee she'll accept, since the contract isn't signed yet, but she's going to come up with some proposals for me and we're going to talk again on Monday. THANK YOU @Lee-White AND SVS!!!

Kevin Longueil

@amberwingart This is sounding better for sure - it might be worth mentioning to the client or getting in writing that you intend to make your own Tarot card deck in the future and that Tarot cards will have many similarities by their very nature - I would also do many thumbnails for each card in the deck and keep the most excellent ideas that are maybe the most personal for yourself - this way you will have all the preliminary work done for your own Tarot deck!...which you were going to do before you got the gig... just an idea - anyways I'm glad the negotiations are going well

amberwingart

@Kevin-Longueil That's a good idea - I'll put something about that in the contract, if she decides to go forward. I already told her about it verbally, which is, I think, why she had her attorney put that clause in there. She kind of hinted at that today. But I'm hoping this moves forward because all in all she seems like a nice lady and I think it'll be a really neat project to work on!

RobinSlee

My biggest mistake when I got my first illustration job was not having a contract at all. I was so eager to get the job, I went with a gentlemans agreement. Big mistake. I sold the image with complete ownership, meaning I lost any rights to use it in my portfolio or use it as promotional materials. I am much more cautious now, and following this thread in detail. So, thank you for sharing

amberwingart

@RobinSlee Yeah, this has taught me just how careful we have to be. I had a friend look at the original contract the client had wanted me to sign and as it turns out, if I'd signed it, I would have opened myself up for a lawsuit for ANY piece of work I created after that because of my style & chosen subject matter (animals). The contract was worded in such a way that anything I ever painted again could be considered "derivative" of the tarot set (which, according to the contract, would be suit-worthy) - even children's book illustrations, . So signing this single contract could have potentially ended my career before it begins. My friend says I would have had to have changed my style and/or subject matter completely so as not to get sued. Scary!