Contracts that are generated by
clients will always present a list of restrictions. Expect that clients will be
looking after their own interests. It is important to be aware that
restrictions can be negotiated, and if acceptable to all parties, be altered.
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| © 2012 Don Arday. |
Contracts written and presented
by illustrators should not be so self-deprecating. Just as clients will be
looking after their own interests, it is important for illustrators to protect
theirs. Some of the restrictions below benefit the client while others benefit
and protect the rights of illustrators.
Illustrator Provisions
Relevant Illustrator Activities
This relates to the “expertise provided”
component in Part 1. It is usually more specific and quite often works
positively toward the decision to hire an illustrator. For example: When being
considered for an illustration assignment with Marriott Hotels, a successful
track record of illustrating for the hospitality industry, specifically for
Motel 6, would be relevant, and would be a plus.
Illustrator Conflicts of Interest
Many contracts require an illustrator to
disclose any potential conflicts of interest. Conflicts can occur through a
personal relationship. For example: Being a blood relation or spouse of a
person directly involved with the illustrator’s assignment. They can also occur
due to a business relationship, either past or present. For example: An
illustrator hired to produce work for Dell Computers has also recently been
hired to produce work for Hewlett-Packard. It is important to note that disclosing a potential conflict
of interest may not necessarily result in prohibiting the illustrator from
being hired for an assignment. Conflicts can also be related to a client’s
activities or a product itself. For example: I know of many illustrators that
will not produce work for tobacco products, but they might for a non-tobacco company
affiliate. Disclosure of potential conflicts of interest can avert consequences.
See below.
Illustrator Insurance Responsibilities
Somewhat rare, but still worth mentioning,
are activities that might call for an illustrator to carry special insurance. For
example: Situations that pose a treat of injury such as having to climb
scaffolding to paint a large mural.
Illustrator Legal Responsibilities
The illustrator’s legal responsibility is now
a standard clause in nearly every contract, and it is mainly due to the
improper use of copyrighted materials by illustrators for image reference.
Clients seek to protect themselves
against legal actions that could result from an illustrator infringing on the
rights of other copyright holders, see “10
Digital Art Copyright Definitions” posted 9/11/12. Legal and monetary responsibility
for any copyright violation falls squarely on the illustrator. So it is very
important to be aware of copyright statutes concerning rights of ownership and
the creation of derivative works.
Illustrator Outsourcing
This provides clarification for circumstances
where an illustrator needs to outsource certain types of services. In most
cases, where copyright ownership issues may arise, the client hiring the
illustrator may need to grant permission for outsourcing to occur. And, the
client or the illustrator may need to have an agreement or contract in place
with the outsourced party.
Illustrator Employment Arrangement
Under most circumstances an illustrator is
hired to produce work for a limited purpose. While doing so, the illustrator
retains a separate status from that of a company employee. This separate
business status allows the illustrator to retain the copyright ownership of the
work produced. Although a
“work-made-for-hire” agreement may be for a single assignment, it is equivalent
to being hired by a company as an company employee. This means that under a
“work-made-for-hire” arrangement, the copyright ownership of any works produced
would belong to the hiring client, not to the illustrator. The client could
then control and profit from the use of the illustrations. The client could
reproduce them, or create derivative works, all without having to
compensate, or even credit the illustrator, see
“10 Digital Art Copyright Definitions” posted 9/11/12.
Illustrator Intellectual Property
The intellectual property right refers to the
ownership of the copyright of an illustration. Simply put, the right to control
the usage of an illustration. The illustrator is the copyright owner, which
should be plainly stated in an agreement or contract -- unless the copyright
was sold as a buyout, assigned over to another party, or the work was produced
under a work-made-for-hire agreement. For
more information on intellectual property see “Copyright Intellectual Property”
posted 11/6/12. For more information on work-made-for-hire see “10 Digital Art
Copyright Definitions” posted 9/11/12.
Intellectual Property Future Use
Future use should be addressed. This relates
directly to the copyright ownership. Illustrators should retain the rights to
future use of the images they create, including the right to create derivative
works from their original illustration. Unless specified by an image “buyout”
or a “work-made-for-hire” employment arrangement, the illustrator shall retain
the copyright to the illustration(s) created for a client. This means the
illustrator has the right to resell the illustration, create other illustrations
based on it, and use it for any form of self-promotion they wish.
Derivative Intellectual Property Ownership
The ownership of any derivative works based
on illustrations produced for a client should be clarified in an agreement
or contract. Relating to copyright ownership, derivative ownership conditions
that are noted in an agreement, provide additional clarity and protection for
the illustrator if an illustration is altered and used by a client without the
consent of the illustrator.
Client Provisions
Client Intellectual Property Rights (Non-Illustrator)
Some illustration assignments become part of,
or are absorbed by, the intellectual property rights of the client. There are
many instances where this can occur.
Common ones involve illustrated trademarks, service marks, or illustrations
applied to inventions or patents. In these instances, through contractual
agreement, the copyright ownership of the client or company will supersede the
copyright of the individual creating the work.
Client Confidential Information
Illustrators are considered consultants by
the clients that hire them, and by the very nature of an illustrators work,
clients will often provide confidential information to illustrators in the form
of project input and company inside information. Clients will require that
illustrators, i.e., the image consultants, not disclose any proprietary confidential
information.
Confidential proprietary
information can take many forms such as product information and development,
marketing or communication strategies, content of publications, research
and development activities, company policies, inventions and technical information,
trade secrets, management and financial strategies, etc.
Client Confidentiality Timeframe
The timeframe of confidentiality depends on
the type of project and the type of information involved with it. In the case
of an editorial illustration for a magazine, the confidentiality timeframe
usually ends when it is published.
Client Property Handling
A property clause is to address the handling of property provided
to the illustrator for use during the course of an assignment. This provision
defines the date, cost arrangement, and method of return of company property.
Client Work Restrictions
Related to “Illustrator Conflicts of
Interest” and “Client Confidential Information”, it is not uncommon for a
client to limit an illustrator from providing work for a third party, usually a
direct competitor, while the assignment is being produced and/or for a period
of time afterwards. Through disclosure of prior working relationships with other
competitive clients, an agreement limit can be appropriately managed.
Agreements and contract limitations should never extend beyond what is
reasonable. It is not uncommon for illustrators to be able to work for a third
party, with the understanding that they be bound by an agreement or contract
terms of confidentiality. Especially if the type of work done is dissimilar.
Client Non-Compete Restriction
Similar to the concept of an illustrator work
agreement, a non-compete restriction goes one step furthering restricting the
employment possibilities of an illustrator. It specifies that the illustrator
may not become a competitor to the client. Although seemingly obvious and
avoidable, illustrators should consider future opportunities that could arise
before agreeing to any non-compete provision. Non-compete clauses demand
careful consideration.
Here is a relevant story. A freelance
illustrator completed a storyboard assignment for toy product commercial for a
local ad agency. The agreement had a limited work restriction, so the
illustrator could not produce a storyboard for another toy company for one year,
but the agreement signed for the storyboard also contained a non-compete
clause. Soon after, the illustrator was offered a staff position by a different
ad agency in town, and because that ad agency had an account with a toy
company, the illustrator could not accept the position without a special
negotiation with the first company.
Client Restrictions Timeframe
One or more specific restrictions can be
bound by a timeframe. Alternatively all restrictions can fall under the
timeframe for the entire agreement or contract.
Consequences
Breach of Confidentiality
In some agreements or contracts, clients
reserve the right to take action against a consultant, i.e., the illustrator,
for any disclosure of confidential information. Rarely limited by
specification, clients prefer to leave the ramifications of a confidentiality
breach, and course of action in dealing with one, open ended.
Breach of Contract
Clients reserve the right to take action
against a consultant, i.e., the illustrator, for a breach of contract. This
could involve a breach of one or more components, provisions or “terms” of the
contract.
