Every illustration commission should start with a contract which ensures both the client and the illustrator understand exactly what is being asked and under what conditions.
Complications can be avoided if the client or illustrator use fair and reasonable standard terms of trade, and sort out any concerns or issues at the beginning of a job, rather than leaving it until after artwork has been delivered.
If there is anything in a contract presented by the client that you do not understand, the client’s art director or legal department must be able to explain it to you.
What is a Contract?
Most people think of a contract as something written on a piece of paper, with numbered clauses, signed and dated by the parties concerned. But this is only one type of contract. In fact any agreement – written, verbal or even partly unspoken – is contractually binding provided it contains the following three elements:
- An Offer (e.g. from a potential client)
- Consideration (something in exchange – usually money)
- Acceptance (e.g. by the illustrator for the ‘consideration’)
Once these three elements are in place, the contract is created and is binding on the parties to it. Neither can alter the contract after the event without the agreement of the other.
In practice, without having a written record of a contract it can be difficult to prove exactly what terms were agreed, or sometimes even that a contract existed at all. Therefore you should try to record any important agreements in writing and make sure it is signed and dated by all the relevant parties.
A contract should also contain the terms of the licence being granted by the illustrator to the client: how the artwork is to be used, in what territory and for how long. See Writing A Licence.
Contracts can be quite simple, and others can be extensive with multiple clauses, especially in book publishing. But if you are agreeing to it you should understand all the points that you are agreeing to.
As mentioned, you can ask your commissioner for explanations of clauses you do not understand, or contact the AOI for an assessment of the contract.
Client contract checklist
These are a few basic points to look out for (this is by no means an exhaustive list):
- Appropriate licence or rights grab?
- Fee detailed? (Is it clear what you get paid and when?)
- Delivery date realistic?
- Duration of the licence period clear?
- Warranties and indemnities (are they acceptable or too broad? A warranty is a contractual promise – for example that the work is original and does not infringe any other’s rights)
- Is the client supplying picture reference to you? (Is it copyright cleared by client?)
- Termination? Can you end the agreement and in what circumstances? What happens to the copyright in your work if you terminate the agreement?
- Governing law of the contract
Especially for long / high price jobs:
- Cancellation fee
- Rejection fee
AOI members can use our template contract, called the AOI Illustrators Commissioner Agreement. This document covers all the key areas that should be agreed in a commissioning contract.
The above information is provided for information purposes only. It does not, and is not intended to, amount to legal advice. You must obtain advice from a lawyer on the specific circumstances of your matter rather than rely on the information contained above. Neither The AOI nor Howard Kennedy LLP accepts any responsibility for your reliance or use of the information in this article. Dated: March 2021.
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