Articles - 6th March 2020

Copyright for Illustrators and Artists

Words by Kit Killington
Illustration by Jon McCormack

As the contracts we sign become evermore complex and include rights and uses unheard of when I began as an illustration agent 20 years ago, one issue remains constant: copyright. In an increasingly globally integrated business it is now more important than ever that artists understand their rights and know how to protect them.

Copyright, as we know, is a legal set of ‘exclusive’ rights which prevent others from making use of our creative work without express permission and/or payment.  It is important for all artists to note that these rights are automatic and do not need to be asserted in any formal way.

Even if you post work online without a name credit or copyright symbol, the 1988 Design and Copyright Act will afford protection and unlicensed re-use of the image is not permissible so enabling legal recourse and remuneration.

Aside from the ‘exclusive’ rights that copyright affords us there are also the ‘moral rights’.  These cover ‘the right of attribution’ (the right to be recognised as the creator of a work) and the’ right of integrity’ which protects an artist from having themselves or their work brought into disrepute through dubious association.  After all, no artist wants to suddenly see their work reused as promotion for something politically, culturally or ethically deplorable.

Rights of Attribution are distinct from the economic ‘exclusive’ ones as they do need to be asserted in a more formal way and I would always suggest creating a clause in any contract that includes a mention of asserted right to a credit.  It’s also worth bearing in mind that whist copyright can be assigned or sold to a third party, moral rights always remain with the artist.

Knowing your rights is only part of the story of course; how best to protect them is another entirely.  In this regard, I would like to begin by saying that the vast majority of clients that I have had the pleasure of dealing with are ethical, supportive and understanding.  They may not have the large budgets we would like sometimes, but they respect the creative process and the right of each artist to protect their livelihood.

These relationships are at their best and most fruitful when the processes are kept clear, above board and on a respectful footing.   Therefore, it has always been best practice to keep things in writing and as a rule of thumb I would recommend the following:

 

  • Read all contracts very carefully and don’t be afraid to ask questions
  • Remember that these contracts are often generic and not always suited to your work.  It’s okay to ask for amendments providing you keep your requests realistic.
  • Draw up your own Job Acceptance Form for any projects that don’t issue a contract. This should state your terms and conditions on usage, licence agreements, cancellation fees and payments. Remember to get the client to sign it.
  • Don’t post any high resolution images online as the web can be like the Wild West sometimes.
  • Do not sign over copyright or waive your moral rights as it makes it so much harder to keep economic control and protect the integrity of your artwork.
  • This is a complex and time consuming area of modern arts practice, so it’s definitely worth thinking about getting a agent to free up your time.
  • If a credit is important to you, make sure this right is asserted in writing. Again, be realistic – this might not be possible for a number of reasons.
  • Be aware that more extensive rights (such as larger territories, exclusive period of use etc) should cost a little more and quote accordingly.
  • A copyright symbol (©), whilst not essential can be useful when posting on-line as it gives a date of creation and links the image to you for online search purposes.

 

The protection of creative rights is a collaboration between artist and client, but there are of course occasions when this relationship breaks down.  If you feel that your work has been reused without consent there are steps you can take.  Firstly, take a deep breath.  Remember, most clients don’t intend to break the rules.  Approach the client in writing and highlight your issue respectfully.

If you feel you are being ignored or sidelined then you can ask to speak with their legal dept regarding the infringement.  Clearly state which rights you assigned to them (if any) and how they have infringed them.  Bare in mind that there are exceptions to copyright ruling such as if the image has been used in news reporting, for educational purposes, or research.

Suggest that the new usage will require an additional fee and have a figure in mind.  Legal action is very rarely necessary and should only be mentioned as a last resort but do keep all correspondence safe in case it is needed by your solicitor.

Your creativity is always worth protecting so if you have any concerns it is important to speak with your agent or a trade association as soon as you can to make sure that clients can enjoy your creative talents for many years to come!

 

Kit Killington is the founder of Killington Arts Illustration Agency in the UK, partner to Heflinreps in the US and hugely proud to represent some of the most extraordinarily talented artists worldwide.

 

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