What is copyright? Copyright is an economic right that gives you the opportunity to make commercial gain from the exploitation of your artworks. This is generally done by licensing the right to use the work to clients. This allows them to use the artwork for a specific purpose or purposes.
As you own copyright in your creative works you are the only person who has the right to make copies of your illustrations, unless you authorise others such as a client to do so.
What is a Copyright Assignment?
Copyright is a very valuable commodity. It gives the owner the exclusive right to reproduce an image (or sell on to allow others to reproduce it) in any way throughout the world for the period of copyright (the creator’s lifetime plus 70 years).
Sometimes a client may not be sure of all the uses they may wish to use the image on, so ask for copyright as they feel this may be the most easy way for them to manage this situation (see menu quote), or they have other reasons for wanting all reproduction rights in the artwork.
If a client wants you to assign copyright in your commissioned artwork they must be prepared to pay a sum that reflects all the potential uses they could put the artwork to.
Selling your copyright means that you have no further right of reproduction in your work. This is known as an assignment, and will only be effective if you put it in writing.
Often, alongside a copyright assignment, the commissioner will ask that your moral rights are waived. If they are waived, the client will be able to adapt the work without you being able to object, and there will be no requirement to credit you as the creator.
With US clients you may asked to agree to a ‘work-for-hire’ (or ‘work made for hire’) contract. While this may sound innocuous, it is in fact an American legal term which means that the commissioner will own the copyright in the work rather than the creator. This should be resisted unless the fee is appropriate for this significant right.
Why is an assignment not in the illustrator’s favour?
If a client is prepared to pay an appropriate fee for a copyright assignment then it can be worth you considering accepting.
However, generally illustrators are paid according to ‘usage’. An image commissioned for a brochure cover will attract a higher fee than one commissioned for a magazine, for instance; an even higher fee would be paid for advertising use. It follows that complete copyright, giving unlimited rights of reproduction, should necessarily attract a significantly higher fee.
Clearly a client commissioning a brochure cover does not require any such a wide-ranging right as complete copyright, and certainly would not want to pay the appropriate usage fee.
So, if you have been commissioned to create an image for a brochure cover, for example, and the client then asks for copyright in the image but is only willing to pay what the brochure cover is worth, an assignment of copyright will not be appropriate. That client could then reproduce the work on any number of other items with no further sums going back to the illustrator. They could also sell the work on third parties, which means you have lost control of where and how your artwork is used by other parties. This could be an organisation whose aims you disagree with, for example, or a product that you would not choose to be involved with.
The creator of a work should be compensated for all uses of an image (and the existing licensing system ensures this happens).
What can you say to clients asking for copyright?
In a situation where you are asked to assign your copyright in your commissioned illustration it is best to discuss you retaining the copyright and granting the client a licence to use your illustration. You can say:
I’m not able to accept a copyright assignment but am happy to grant the more typical licence based on usage, territory and licence duration.
If the client will not accept a licence, then you can say that you can offer a revised a fee quote which takes the extensive reproduction right that will be transferred with copyright into account (this will be more than the usage fee you will have already quoted to the client). Or you can offer a ‘menu quote’ to give the client a comparable view of the values of a variety of options.
The ‘menu quote’ is a useful way of dealing with demands for copyright assignment. Instead of quoting just for one specific use you give the client a range of prices for a range of uses.
This is especially useful if the client feels they may need to use the image for other things, but is not sure what. This shows you are working to find a solution to resolve the situation, and you could quote as follows (with a commission for a leaflet cover as an example):
Leaflet only: £XXX
All ‘below the line’* uses: £XXXX
As you are then essentially breaking down your quote into the various uses the client could need, if costs are getting too high then this allows the client to easily remove certain usages in order to bring costs more in line with their allocated budget. Allowing for flexibility and understanding around budget constraints.
This gives the client some choices, whilst making it clear that if they want the copyright they must expect to pay for it. The details of the menu quote would vary according to what uses you think the client is likely to need.
* Below the line (not paid-for advertising) i.e. client website, client’s own social media, corporate collateral, printed promotional material, educational material, emails/newsletters.
Remember when asked for a copyright assignment your aim is to improve the situation and get an appropriate licence with a fee that reflects the uses your illustration is to be put to. If this is not possible then you will be aiming to receive a fee that covers the high value of a copyright assignment.
See the AOI Keep Your Copyright campaign