What’s the use? Copyright, Usage and Bully’s Special Prize
When I first started freelancing as an illustrator I would often find myself in a pickle about image rights. Some clients would send mutiple page contracts about how and where my work would be used, whereas others would be happy to agree a job over a cuppa and a handshake and never uttered a word about copyright. I had been advised by other professional illustrators and the AOI to make sure I always retained the copyright to my work. If you are unfamiliar with terms like usage and copyright I will explain it simply so you can get the general gist of what I’m harping on about in this blog post. By law, copyright belongs to whoever creates an original piece of work unless the creator signs a contract to transfer the rights over to someone else. Whoever you sign copyright over to can do whatever they want with the work: they can use it on global ad campaigns, sell prints of it on Etsy or sew it onto Donald Trump’s pants for all you care – you won't make any money from it. And if you have a style of work people recognise then everybody knows it’s yours. Now everyone thinks you love Donald Trump and you can’t do anything about it.
So standard practice is for illustrators is to ask what the use of an illustration is and grant a license to use the work for a specific purpose - eg. on a magazine cover or on a t-shirt design. Illustrators work out fees accordingly by the amount of exposure the work gets…
Simple, right? Nope, because sometimes clients want to re-use the work commercially and they begrudge paying additional fees for something that’s already been created. I would sometimes get asked questions from potential clients, such as: “Can you just include full copyright in with the cost?” or my particular favourite “Can you just resend your quotation without this little usage thingymabob please?”. I started to feel like I was losing the plot: maybe all those other illustrators who licensed their work were part of some sort of secret club that I had to learn a secret handshake for. Instead of asking "what's the usage?" I stated to think "what's the use?". A few potential clients told me they would rather just pay an hourly rate and have the freedom to use the work on whatever they like – well, of course they would – but aside from those who were just after a cheap deal were those amongst them that were genuine. I totally understood the frustration for I myself had charged an hourly rate for many years working as a designer: someone would give me a brief, I would follow it, get paid and wipe my hands of the artwork forever. I was more than happy to do so. With my background in design I have seen both sides of the story - the design team I was part of needed to commission work that stuck to a set budget and on completion we needed to wipe our hands of the project without a photographer or illustrator knocking on our door five years later with another invoice. But when I started to take a more illustrative route with my career, I found myself on the other side of the coin. Many design and advertising agencies specified that they only contracted creatives who worked to a day rate, signing a contract that transfered all rights over to the agency. I obliged and I worked for one agency with no knowledge of where my work would end up – the next thing I knew my illustrations were on an advertising campaign, used to sell products nationwide - on printed material, all over social media and web. I’m guessing the agency made a lot of money. I got paid a day rate and couldn't even put the work in my portfolio.
Now, you may be thinking, well that’s all good and well, Lisa, but at the end of the day you put in your hours and went home knowing exactly what you got paid for (once I chased an invoice a few times). If I hadn’t found out about the ad campaign would I have been bothered? It’s on a par with saying "here’s what you could’ve won!" And no one really wants that information do they? (unless it’s Bullseye in which case nobody really wanted a speedboat when they had a small terraced house in Rotherham anyway).
Okay, so I made a living as a sort of ‘artworking illustrator’ – aka. drawing whatever anyone wanted for money and then denying all knowledge of it because I’d signed away all the rights to it. As you can imagine, my portfolio looked a bit crap because I legally couldn’t put half of my work in it. I settled for that in the hope that I could make a living – none of this poncy stuff about licensing and usage.
But then I started to get quicker and I got paid less – and there’s only so much you can put your hourly rate up. Still, that’s all good and well trying to find ways of making myself more money, but at the end of the day how am I ever going to convince a client that this is the best thing for them? Is it fair? Design agencies want to do a deal and get the work out of the door and many art directors have expressed to me their frustration of illustrators being too precious about their work, ultimately ‘stabbing themselves in the foot’ and losing out on commissions. “Freelance artworkers just charge me an hourly rate” said one art director “can’t you do the same?”
Here’s the thing though: I have worked as an artworker. When I did so I only ever got paid to artwork someone else's ideas and I never created any original work of my own. If I created a leaflet, there was no way that leaflet could ever be turned into anything else or used to sell any other product than the one I was creating it for. When I worked as a graphic designer, a logo I created could only ever be used for the brand I’d created it for because it wouldn't make sense to use it on anything else (and even then, design agencies took into account the size of the client and charged accordingly). To this day if I do design work I am happy to charge it out at a flat fee most of the time because the work is only ever used on one thing or for one company. I can’t do the same for highly original illustration work – we’re not in the 19th century where the only way you make a living out of art is to exchange paintings for gold coins and where only one version of the painting could ever exist.
But despite the fact that we may all have different working methods and expectations we have one thing that unites us: we are all just trying to make a living. None of us want to feel like we're being ripped off; none of us want to hear about what we could have won by someone else who got a better deal. If we worked together to establish what is best for both parties perhaps we would both be in a better position to create a successful outcome to a project. Are we giving the other person enough trust to do so? If you’re an illustrator, are you looking at the full scope of the project and seeing it from a practical point of view? Do you appreciate that sometimes it’s impossible to know exactly what your work will be used on so early in a project? If you’re a client do you understand that illustrators often have their work exploited and have a right to say where their work ends up? Do you appreciate that original and unique work has far more value and selling power than a stock photograph? Here’s the thing: How about we talk? How about we ask questions? How about we say what we’re prepared to do and what we’re not prepared to do? How about we explain why we are sticking to our guns on some issues and why we’re negotiable on others?
So, below are some points that might help to give understanding of both sides of the party in the hope that we can create a bit more of an open dialogue and better working relationships.
Some points for illustrators:
If you're working specifically with art directors who work in design and advertising, they are often subjected to lots of revisions, development stages and deadlines too. They are not always a big manager sat in a big leather chair, but they are often the middle man trying to keep two or (way) more people happy.
Art directors/clients sometimes have limited budgets that are out of their control and often have to negotiate on their company’s behalf. As much as they may love your work, as individuals it may not be feasible to go over certain company budgets, in which case it’s your choice to walk away or negotiate as best you can.
Some art directors do not regularly commission illustrators and may not understand your processes. They may be used to working with creatives who charge day rates and they would expect you to do the same (that does not mean you should but just that you shouldn't assume everyone understands about image rights – be considerate enough to explain your methods.)
Art directors don’t always know the scope of the job early on which is why flexibility is a godsend – they need to know you are not rigid in the way you work because the job may evolve. That doesn’t mean you can’t put in good boundaries, it just means you need to be clear from the start and put their mind at ease that you aren't going to hit them with a huge bill they'd not accounted for.
People will always want to get the most out of you for their money, in the same way I come out of Tesco with two of everything just to get the special offers. When I think about it logically I realise I'm spending money on things I don't really need just because there's a special offer on. In the same way it's your job to explain to clients why looking for the most attractive deal isn't always going to be the best option for them. As much as you want to accommodate make sure you know where you draw the line.
Some points for clients…
Retaining copyright and granting license use is industry standard. It doesn’t mean all illustrators charge work in this way or that you have to work with ones that do, but it does mean that this is good professional and ethical practice and advised by established illustrators, educators and the AOI.
Illustrators are not trying to be deliberately awkward when they stipulate usage terms, they are trying to make a living. They want to have a good working relationship with you. Nobody becomes an illustrator to become rich, but that doesn’t mean they shouldn’t expect fair terms.
Illustrators may need to ask lots of questions about jobs in order to price fairly. The more information you can give the more helpful it will be for both of you in the long run.
Sadly illustrators are under higher risk of exploitation than designers because of the nature of their work – I can vouch for this from first hand experience of working across both professions. Consider why different creatives charge their work differently and don’t just assume they are being difficult.
You get what you pay for. Of course, if you just want anyone who can draw then it would be inadvisable to ask a world famous illustrator to quote something when you can pay another illustrator considerably less for the outcome you want. There will, however, be a difference to the standard of the work. If you want someone for their body of work and originality you need to be prepared to pay more for that. When you get quotes compare the work as well as the costs – see if there is any correlation between those whose work is of a high standard and those who quote their work based on usage.
The problem lies in thinking we are missing out – the questions: "are companies getting value for money?" and "are illustrators getting paid fairly?" seem to be in opposition. Perhaps we should stop thinking about what we can win and think about solutions that actually make sense for both parties: working alongside one another to increase business sales for our customers the best way we can. The freelancer will always be the underdog which is why ethical terms are important – freelancers should not be accused of being pretentious just because they want to retain the copyright to their work. This is business, not a bloody game of darts.
If any other creatives, art directors or commissioners of commercial illustration would like to share their experiences about moral rights and working practices I would be really interested to hear them so please feel free to comment.