Copyright + intellectual property on illustration?

Business Issues
#1

Hello! I appreciate anyone’s knowledge as I am in a bit of a situation:

A few months ago, I started illustrating a picture book for a good friend of mine, I totally undervalued and charged a low amount. When we started, the plan was traditional publishing.

Half the book is done and the whole process has been very collaborative to the point where she even talked about starting a whole foundation based around this book and character.

We should have done this months ago, yes. Lesson absolutely learned.

Now she comes to me with a work for hire agreement, asking for me to sign the rights over because she’s elected to go the self publishing route and she wants the security that she can use the characters I’ve designed without any concern, even if we don’t work together in the future and she has to hire another illustrator. She’s received advice that says that our situation is a work for hire and I NEED to sign over the rights.

I don’t want to sign my artwork over. I never signed anything when we first started talking. I’d like for her to have the security that she’s looking for but If want to have the assurance that if she drops me from the project, I get some percentage of royalties/merch created from my artwork.

She keeps citing that the characters are her intellectual property and I understand, but the artwork is mine. She gave me guidance and said “I need a fox in red boots”, but I came up with the design.

I am just confused and I don’t want to be greedy, but I also don’t want to devalue my artwork. Also, since I charged so low (which yes my bad), what is a fair percentage to propose in splitting royalties and anything that comes from my designs (like if she sells stickers or tote bags, etc.)? Should I ask for a higher percentage? Should i just count that as a personal loss and learn?

Any advice or even legal resources would be so super appreciated.

Copyright and IP: artwork dispute
#2

What did your original contract state in regards to usage, rights and royalties?

You are not an employee of the good friend, so IMO (not a lawyer) you have not done work for hire unless it was agreed on beforehand. I run into this all the time with photographers. They don’t consider their contract work as work-for-hire. I have to put in writing in the contract that we own perpetual usage of any photos I hire them to take.

You can see if your state has a VLA (Volunteer Lawyers for the Arts.) Some do, some don’t, and you may or may not qualify. But you can check.

If this is a good friend, you might push back with a contract that gives her the perpetual usage, but at a rate you decide is fair, including royalties and or residuals.

But it all is going to depend on your original contract.

(this is where you tell usyou didn’t think you needed a contract with a ‘good friend.’ Nothing kills a friendship faster than a business misunderstanding.)

<not a lawyer

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#3

Thank you! There was no original contract. There was an estimated delivery dates in notion and a payment schedule.

Originally, the idea was going the traditional publishing route and dealing with contracts and such at that point.

Perpetual usage sounds like something I will look into, I appreciate your answer!

Agreed, the friendship portion is definitely strained currently. Lesson learned.

#4

I don’t have a current copy of the GAG Handbook. That may give you some ideas on royatlies and fees.

There are links under the cover image to order without joining.

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#5

Assuming you’re in the United States…

Most self-published books fail to earn significant amounts of money. Your friend’s book(s) might be the exception, but considering the odds, how much anxiety is your dilemma worth considering the likely amount of money involved?

I’m not an attorney, but these people are. According to them, a work-made-for-hire agreement cannot be signed retroactively. Any such agreement would be non-enforceable. You can sign over your copyright after the fact, but not in a work-made-for-hire agreement.

That was a mistake, but it’s water under the bridge.

As I mentioned, I’m not an attorney, but I see a couple of possible avenues. You can keep your copyright but negotiate a licensing contract. You could also sign over your copyright and negotiate some kind of contract that covers future payments.

Of the two, the most secure option seems like the first one. However, these sorts of contracts require the expertise of an attorney instead of relying on some anonymous guy on the internet (me) to give you advice.

Of course, attorneys cost money, which brings me back to the point I made earlier about whether it’s worth the expense and hassle. Or is it better to negotiate a flat, one-time fee to purchase your copyright so you can get paid and move on? If it were me, I’d probably choose the latter.

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#6

I appreciate it a lot, thank you!!

#7

This was super helpful, you bring up an excellent point of is it worth the anxiety and hassle.

Thank you for your perspective, help, and links!

#8

Bottom line is, that unless you have signed your copyright over, then it remains your copyright. The character may be her creation, but the visualisation of it is yours. Like Just-B says,I caveat these comments with the fact,I I am no lawyer, but these days the whole concept of copyright is treated like a movable feast. It’s not. It remains with the creator unless explicitly given away.

Moreover, it is eminently more copyrightable that a character idea, the words she used to create the characters are her copyright, but an idea, in and of itself, is not copyrightable, only the manifestation of an idea is.

Stick to your guns. The de facto status quo is that the visual representation of the characters is yours and she cannot use them without your permission and any agreed recompense, if you so choose, if she does, it’s theft.

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#9

Thank you so much!

She told me she has drafted up a contract that says if I sign copyright over, it guarantees I still get a percentage of book sales and anything using my art, is this a thing or am I getting scammed lol

Once again, I appreciate everyone’s responses, they have been the guidance I needed.

#10

I doubt your friend is trying to scam you, but it seems she wants to stack the business relationship in her favor.

As mentioned before, if the contract is a Work-for-Hire contract, that part, as I understand it, would be invalid since a work-for-hire situation must be agreed upon in advance.

You can certainly sign over your copyright to her and agree to some formula regarding future payments. However, that’s the sort of messy situation where a lawyer needs to get involved to ensure the contract is written fairly and in accordance with the law. I’m not even sure how that would work after you signed over rights to your copyright. Again, a lawyer is the person to ask.

Look at it this way for a moment. As it is now, you have some leverage over the situation. You own your artwork, and she can’t use it in the future without your permission. She might not even be entitled to use derivative versions drawn by another illustrator, even though she’s claiming that the original ideas were hers and that you were simply the executor of her ideas (more attorneys getting involved).

She’s trying to prevent future problems for herself by getting you to sign over your leverage (the copyright) in exchange for future payments that may or may not materialize. Even if you make that kind of arrangement, it places you in a position of taking her word that she made $XXX dollars and owes you the fee you negotiated. How will you know she’s being truthful about how much money she’s making in the future? Will you have access to her bookkeeping records? How will you ever know?

You began by saying she’s your “good friend.” Well, maybe she is, but she’s trying to clean up a messy business relationship that wasn’t thought through in advance by attempting to do so in a way that favors her, not you. There’s no reason to suspect she won’t continue her she-comes-first thinking down the road.

If I were you, I’d use the leverage I have by telling her that I’m uninterested in exchanging the copyright for possible future payments. Going by the odds, those royalties will be minimal, and the proposed arrangement leaves it up to her to be honest with you.

If it were me, I’d keep it simple and tell her I would sell the copyright for $XXX in cash, which would recoup the money lost in the first place by undercharging her. This would also work to her advantage if she honestly just wants to clean up the loose ends rather than getting you to sign over the copyright in exchange for future payments that, my experience tells me, will likely never come to more than a few dollars here and there.

It’s up to you, though, on how much you want to gamble. If she’s writing the next Harry Potter book, you’ll lose millions by signing over the copyright, But what are the chances of that? As the saying goes, a bird in hand is worth two in the bush (at least for me).

#11

Personally, I’d do it the other way around, whereby, you licence them to her for a given amount of time, rather than signing over copyright. You can decide on renewable time periods, to be negotiated by agreement. This way, if the earnings from them grow exponentially, you can renegotiate the terms every, say, 5 years. She’ll probably want an exclusive licence, but again, that depends on recompense.

Let’s say you sign over copyright and it all went stratospheric, she could, theoretically licence your illustrations to third parties, like organisations such as Disney do. You wouldn’t see any extra pennies and she could, potentially make millions more.

I’m not saying it ever will get that big, but how could Disney have known how huge it would all get when they first made Steamboat Willie.

If it’s licensed, you can write in an insistence that all earnings from them have to be declared. If you sign over copyright, as Just+B said, she could tell you anything she liked.

I’d say cover your own back for all future potential. Make it an equitable licence, so you aren’t screwing her over, but don’t give your power away.

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#12

I’d chalk it up as tuition at the school of real world design.

If I made the mistake of underestimating my labor, not producing a clear contract, and in not articulating the rights I was giving to her, I’d finish the illustrations and wish her the best in the hope of salvaging the friendship. I made a bum deal, I’m going to live with the consequences. It’s not worth losing a friend over a couple hundred hours of labor. Because if the conversation devolves into a tit for tat over the intellectual property of things like the fox in red boots, the friendship won’t survive.

And I’d spend a lot more time becoming familiar with professional practices and rights before taking on any more illustration projects.