Copyright of Illustrations for book series

Graphic Design
#1

Hi, I’m new to this forum and I’m so excited to have found it! I read through it a bit before signing up, and you all seem knowledgable and professional. So nice to meet you all.

I have questions I’m hoping someone can give me advice on.

I am an experienced children’s book designer and a client who found me on-line talked me into illustrating her self-published book. It took me a year to complete. I had no idea what to charge her when we were negotiating a price. I grossly misjudged the time commitment and ended up losing a lot of money and time on it. I now remember why I focus on design work instead of illustration… So now she wants to make it a series of books ( like 5 more) and wants me to illustrate them all since I originated the characters and she wants the series to be consistent. Only there’s no way I’m doing it for anywhere near the price of the first book. She understands that and we’ve agreed on a new price. It’s a flat fee with no royalties.

I’m writing up an agreement and in it I state that “I will keep all original art, though you of course have license to use any of the images in promotional materials, etc. The characters as they have been developed are copyrighted by me. If you want to use the xxxxxx characters in other books or for other media uses, please notify me before proceeding so that we can work towards maintaining the character’s quality consistently across all platforms. As agreed, you may choose one piece of original character art from each book in the series to have and I will send it to you (including the first book in the series). My name will appear on the cover as the illustrator, as well as on the copyright page. I would like 2 copies of the printed book. I retain the right to use images of completed book for self promotional materials, such as my portfolio, etc.”

Question 1: The price I quoted was the price that I would charge for each book in the series. I’m not trying to lock her in to doing a certain amount of books, I just don’t want to haggle over illustration cost again going forward, so I’m trying to set it up as a set amount per book now. Is that reasonable?

Question 2: I also did the graphic design work on the book and that was a separate fee and a separate contract. I want to specify that this illustration agreement doesn’t include the graphic design. How might I word that, or should it be a separate agreement that we discuss later? I don’t want her to mistakenly believe that this price is all inclusive.

Question 3: When I had almost completed the first book, she excitedly showed me a “spin off” book she had been working on with another illustrator (I was unaware of the project). The illustrations were done quickly/not well on a computer and were no where near the quality of the work I was doing for her. I was horrified to see my bastardized characters showing up in that book. She paid me a couple hundred dollars for using “my characters”- which I appreciated, but they were so bad as to not be recognizable as “my characters”. I wish that at the very least she had consulted me so that the characters were consistent and there was some quality control. But in the end I guess it’s her call? I’d rather her not use any of the characters without my permission in any form, but I don’t know if I can specify that… I don’t expect her to hire me for every project she does that might use one of these characters I guess, but I own the copyright to the developed characters, so how would that work? What can I specify, and what do I have no control over? Can I specify their usage? Can she go hire someone else and have them copy the existing characters that I developed and created? Should there be a clause in there about that?

I’m in uncharted territory. I really like this client and we have a great working relationship, so I want to be fair and “friendly” not aggressive, but I also want to protect myself and my work. I’m proud of the work I did on it and I know she loves it too. I’m just not sure what wording I should use in the agreement to protect my work, while at the same time being reasonable and not overly uptight about it. Any suggestions would be greatly appreciated!

Thanks!

#2

You’ve asked for advice on a complicated, one-of-a-kind legal contract, which none of us are really able to answer with any authority. As far as I know, there are no attorneys on the forum who deal with this kind of thing.

There are probably people here who can (and might) give you advice on certain things, but what you spelled out ought be negotiated between you and the author, then written up in a legally binding contract by someone who knows what they’re doing — not crowdsourcing the opinions of a bunch of designers.

Unfortunately, attorneys charge lots more than designers or illustrators for custom work. Aside from doing that, I suppose you could just write up the contract yourself, then hope for the best if a dispute arises.

#3

Yes, that’s what I was afraid of. It’s not worth hiring an attorney I don’t think. I guess I was looking for opinions on how you all might handle the situation. Surely there are illustrators on here that copyright the characters they create?

#4

Your illustrations are automatically copyrighted and that copyright belongs to you unless you transfer that copyright to the author in exchange for some kind of payment spelled out in a contract. There are legal benefits in actually registering the work with the copyright office, but it’s not really necessary in most situations and could get expensive.

It gets murky, but in the U.S., when an illustration is created, the copyright automatically belongs to the creator unless the creator is an employee of a company, in which case the copyright belongs to the employer. With you, in a non-employee contract situation, you automatically retain the copyright unless you’ve somehow signed it away — for example working though an intermediary agent of some kind where you’ve signed a contract governing your work for clients obtained through their services. Short of that kind of thing, payment from someone else (in your case the author) is just a payment for that person’s right to use your illustrations. Those terms should be spelled out in the contract — for example, one-time, North American distribution rights, in a specified publication with up to 100,000 copies printed.

If the author wants to buy the illustrations outright and own the copyright or buy perpetual, unlimited rights to use those illustrations, those terms need to be spelled out in the contract.

What you mentioned about the author subsequently hiring someone else to use your illustrated characters as the basis for creating derivative characters is where it gets really messy. It could likely be argued in court that not only do you own the copyright on the original illustrations but that you also own the intellectual property associated with the characters themselves and any subsequent illustrations that might be deemed as being derivative of those characters. Of course, the author could claim that the ideas were hers and were based on, perhaps, characters appearing in her text and that she owned the ideas behind the illustrations even though you owned the actual illustrations.

Just from personal experience, most clients just assume that since they commissioned an illustration or a photo or whatever, that it’s all theirs to do with as they please. This isn’t the case, though — unless specifically mentioned otherwise in the contract, they’re only buying usage rights. I suspect the person you’re working with is working under this misperception too.

What you don’t want to do is assume that a legal dispute that involves court judgments is anything other than a huge all-around catastrophe to be avoided like the plaque. If you can’t talk to an attorney, at least study up on it, talk it over with the author, come to a mutual decision and get it in writing so that you can lessen the chances of this ever happening.

Take a look at AIGA’s Standard Form of Agreement for Design Services. It’s their attorney-approved standard contract for designers (and illustrators) to use for design services. It’s long, complicated and full of legalese, but it’s sort of a mix-and-match thing that’s very informative and can be taken apart, added to or subtracted from to fit your situation.

And this part is important! I AM NOT AN ATTORNEY. I’m just sharing with you some of the insight — right or wrong — that I’ve picked up over the years as a designer. Please don’t assume that I’m some kind of legal expert because I’m most certainly not. It’s totally possible that I don’t have a clue as to what I’m talking about. If you want an expert opinion or advice, consult with an attorney.

1 Like
#5

Just B has flagged up all the alarm bells that rang when I read your post. The only thing I’d add, not relating to copyright, is where you mention agreeing a price for all books going forward. You could end up painting yourself into a corner with this. I would, at very lest, put a limit on the number of books that applies to. If the series becomes huge and makes millions, you don’t want to be stuck in a contract that locks you into rates you charged a new author.

#6

< Not a lawyer.
I’m just gonna toss out there that these characters as drawn are derivative works of the author’s description. At least that’s how it usually works when we commission someone to do custom art that isn’t necessarily character driven but is descriptive driven. If I were the author, I’d be all about owning the rights to words and art associated with anything I’d write.

In some of the amateur stuff I’ve participated in recently, one asks permission to illustrate a rendition of a described character before doing so (this has a lot to do with DND OCs, not books.)

I’m not sure why the author would want you to keep the copyright on their characters images. They are kind of like logos. One of a kind and specific. She might license them to you, much in the way Disney licenses Mickey Mouse plushies, but in the end they are her characters.

< Not a lawyer.

#8

I think the author and I are going to figure out what we want the contract to say together before anyone signs anything. She mentioned last night that she wanted to own the characters outright, which I’m not thrilled about- that’s more of a work-for-hire type of agreement. I would like to maintain the copyright and give her usage rights, especially since there’s no royalties involved. In the end it’s a self-pub book and maybe I’m taking myself too seriously and it doesn’t really matter. :rofl: Thank you for your input.

@PrintDriver The author didn’t describe them at all. I created their personalities in the art. It’s a simple children’s story so she didn’t get in to character development.

@sprout That’s true- thank you. I’ll add a specific number of books that I’m willing to do at that price…

#9

I apologize for going off on a tangent, but how is she self-publishing these books? Does she do her own managing of print production, marketing, etc.? If she is going the vanity press route, beware! So many aspiring writers fall into this trap. My wife paid the $3500 author’s fee but ultimately the royalties amounted to about $110. The publisher printed a short run of her book and put a link on Amazon and B&N. They claimed to promote the book at book fairs. The only books she actually sold were at book signings at a couple of local bookstores. Her original illustrator was replaced by one of the publisher’s in-house people.

If your client knows how to get her books published profitably, my congratulations. My hope is that you are justly compensated. I just wanted to share our ill fated experience.

#10

Still, you are being hired to create a look, a “logo” as it were.
There was no back and forth in the character development? You just illustrated the story with no input?

The client wants to own her characters. I’d just price it accordingly and go with that.
Besides, what are you going to do with them?

You owning the rights to her characters adds a potential conflict. She shouldn’t be beholden to you every time she wants to use her characters. If she wants her neighbor’s nephew to paint them on the south end of a northbound donkey, that should be her call. :slight_smile:

Illustration is a commodity to be bought and sold, sorry to say. The hardest part about commercial art is learning to let go of a “creation.”

Maybe I’m in the minority here. We have had occasions where our end client didn’t want to pay for full copyright so went with exclusive rights on art we commissioned for them, The artist was free to offer them as stock after 3 years of exclusive use by the client. But that was relatively generic stuff. Not storybook characters. And the client could do anything they wanted to with that contracted art without going back to the artist. I dunno. Sorta seems a little like shutting the barn door after the horses ran off.

1 Like
#11

She’s using Balboa Press.I don’t know how helpful they are- we’ll see I guess.

#12

The minute I have to give permission for a company to spam me via telephone and email just to see their publishing guides is when I immediately look elsewhere. Just sayin’…

#13

Yeah, I don’t know if they do that or not. She said they are helping her with marketing in targeted areas of the country and that through them there’s a possibility it could be picked up by Hay publishers. I don’t know who that is. But Balboa Press has been slower than molasses getting this book out- and they were condescending despite their incompetence and mistakes. I wouldn’t recommend them.

Also, referring to your previous comment. It’s customary for book illustrators to maintain their copyrights. If it becomes a hit and they want to make it into a cartoon, for instance, then the illustrator could negotiate royalties with the media company and you’d get credit for being the creator of the characters. If you sell your rights, then that’s it and there’s no possibility to get something more out of it in the future and the author doesn’t even have to credit you for the work because they own it.

It’s not like a logo design or corporate work- it’s not branding. I do that too and have no problem turning over my creations to the company I created it for. Art from children’s books has potential to be used elsewhere- and you want to have a say in that.

#14

While I’ve learned never to say never,
attempting to bank on a self-published book being becoming a hit comic series is quite a gamble compared to charging appropriately for the art up front and pocketing the cash. But I suppose you never know.

Considering the work it takes to actually pitch a cartoon concept, let alone get everything in place for it to become real, and the number of years that can take… yeah… I have “friends” currently in that process and their idea is a really good one, with an already dedicated fan following, but they’ve been out on multiple pitches, with ever increasing levels of management at multiple networks and still no indication it’s gonna get picked up by any of them any time in the near future. It’s a huge time commitment. I suppose it could be an insta-hit. About the same odds as me winning that billion dollar lottery ticket. Bonne Chance! :slight_smile:

#15

I just used that as an example, I’m certainly not banking on it becoming a hit cartoon series. I’m not naive-I’m well aware that this is a self pub title that is not likely to go anywhere big, but the publishing industry is changing and I prefer to leave my options open. I want to have some say in how my characters are used and a usage license is standard in my industry.

We have negotiated a fair amount for a usage license-I’m not displeased with my fee. I appreciate everyone’s input on here. Thank you @Just-B for recommending AIGA’s Standard form of agreement-that was helpful to read through. And thank you @sprout for your comments.

#16