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question about joint ownership in copyright

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SmallDairy77

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Hi everyone,

Please point me to the right post if this issue has already been addressed- I didn't locate a similar post. 

So, here's the situation: 
I was hired to make a painting for someone.  This person put 2 years of research into his idea, but hired me to devolop and make the actual painting/illustration (to be used as a teaching tool in presentations) which is not yet finished.  I assume that I, as the artist, have the copyright.  He wants to have some say in the copyright because we both want to sell reproductions of the image.  Is he automatically part owner of the copyright because of his research in the project?  If not, how do we go about finding a fair way for both of us to own rights to this painting?  Is verbal permission enough? do we need contracts or have to file something with the government? 

For selling:  I was thinking that I pay for the amount of prints that I want to sell and do as I wish with the income I make off them.  And he pay for the amount of prints he wants to sell and do as he wishes with what he makes selling them.  And we don't owe each other any royalties for our sales.  I figure if we pay into the prints independently then neither has a right to say how the money from each person's sales is handled (whether it is saved, donated, reinvested or spent) Would this be legal and fair?  We live in different states, if thats relevant. 

Any insight on such a situation would be greatly appreciated, thanks. 
 
#1 - March 22, 2013, 12:44 PM

Did you have a contract or just an oral agreement?
#2 - March 22, 2013, 12:48 PM

Unfortunately, this is what the copyright office says:

Quote
There is, however, an exception to this principle: “works made for hire.”
If a work is made for hire, an employer is considered the author even if an
employee actually created the work. The employer can be a firm, an organization, or an individual.

http://www.copyright.gov/circs/circ09.pdf

#3 - March 22, 2013, 12:49 PM
« Last Edit: March 22, 2013, 12:52 PM by Kurtis »

SmallDairy77

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We are just an oral "contract".  A mutual friend mentioned that I might take commissions and directed him to me thru e-mail.  We arranged to meet and discuss the project, a down payment was made and I have been working on the project in my studio while touching base over the phone.  We were able to meet in person again recently with another payment. 

I get a lot of this kind of work ,except that most people could care less about copyright and most of it is not reproduced. 
#4 - March 22, 2013, 01:11 PM

I would use a contract in the future. I've known freelancers to get burned so badly because they didn't have one.
#5 - March 22, 2013, 01:14 PM

Anyway, at face value it sounds like he owns the copyright absent any other agreement. I am not a lawyer, just working from the language in the handout from the copyright office. But maybe you can come to an agreement.
#6 - March 22, 2013, 01:15 PM

SmallDairy77

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Does the piece count as "work-for-hire" if it has nothing to do with his business and is intended to be used for volunteer work?  (I have an appointment and need to sign off, but i will check in tomorrow- thanks so much for helping me figure this out! :)  )
#7 - March 22, 2013, 01:28 PM

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I agree with Kurtis here. You say you were commissioned (whether for his business, non-profit, volunteer, or other personal use), and the art is based on years of his research, etc,... so it sounds like the oral agreement is essentially a work-for-hire,... not an agreement to be business partners with a 50/50 split on copyright of this project.

In this case, I think it sounds more appropriate for you to ask this person if you could print out your artwork and sell it (if this is what you want to do) because it doesn't sound like you would own the copyright. You shouldn't assume you can do whatever you want with your artwork simply because you created it... particularly if you were paid to do it.

If I had invented something, researched it heavily and hired an engineer to build it based on my research and parameters, this engineer would not hold copyright to my invention (unless a contract stated the engineer contributed enough to the invention that the copyright would have to be shared, or some other clause). If this engineer went off to build my invention and sold it without my permission, I would feel it's a breach of contract... though of course, I wouldn't have just an oral agreement for a case like this.

Good luck and I hope you are both in agreement with the future of this project. Perhaps he might not care at all what you want to do with it, or profit from it.

#8 - March 22, 2013, 01:39 PM

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What they said times ten. Do a written contract every time, before starting any work, from here on out; it'll save some grief.

In this particular instance, hopefully you can work out something with him so that you can sell prints and make money from them... but if he says no, and he has paid you anything for the work, you don't have a leg to stand on.
#9 - March 22, 2013, 01:47 PM
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No. It's the opposite. If you didn't explicitly sign over copyright, as in a work-for-hire agreement, you retain the copyright to the illustration. You didn't do that. You DO need to nail down with this guy how you are going to handle this situation, but you have NOT signed away anything.
#10 - March 22, 2013, 07:44 PM
Harold Underdown

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Doh! Reading further in the document I myself links to clarifies Harold's point rather clearly. Which means my earlier link is good but my summary of it is wrong (and lazy).
#11 - March 22, 2013, 08:37 PM

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I would definitely get in touch with an attorney who specializes in contracts and this type, in particular.
#12 - March 23, 2013, 12:22 AM
Being Frank (Flashlight Press)
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Good point, Donna. I'm certainly not qualified to give legal advice--I'm just explaining what I do know about copyright and how it works in a publishing context.
#13 - March 23, 2013, 08:06 AM
Harold Underdown

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What Harold said.

It's not work-for-hire unless that's specifically stated upfront. Whatever the end agreement ends up as, get it in writing, and good luck!
#14 - March 23, 2013, 08:32 AM
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I completely agree with your advice, Harold. I just have a friend who had a "verbal" agreement about co-authorship... and got burned VERY badly. So yeah, get those contracts and make sure it works for both of you.
#15 - March 23, 2013, 11:04 AM
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Oh wow. What do I know. I guess I'm so used to having the contracts and therefore working in situations where the presumption is WFH that I didn't realize the law actually falls on the side of the creator in the absence of the contract!
#16 - March 23, 2013, 11:16 AM
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Joni, you made a key point--get a written contract. Everything else is secondary, IMO.
#17 - March 23, 2013, 02:08 PM
Harold Underdown

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SmallDairy77

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Finally made it back to the board!  Well, based on what y'all said, I had better get drafting a contract that works for both of us.  The person I'm working with is quite agreeable so I don't think we'll have much trouble working something out, its just that its a first-time-situation for both of us and we don't want to be unfair to each other simply out of ignorance.  I don't want to invent an illegal contract- is that possible? 
(Harold your book is most useful!  It has advanced my picturebook development much!  Someday, it'll be in print, but in the meantime I do these commissions to advance my name)  (Hi Donna!  Hope Write2Ignite was as awesome as it was when I was privelaged to go a couple years ago!) 
This is SUCH a good board- thanks all for being patient with newbies like me! 
#18 - March 24, 2013, 10:05 AM

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Illustrators--wasn't there a thread a few months ago that had a link to things always to include in a Memo of Understanding/Contract, etc? I'm not an illustrator so I didn't bookmark it, but bet one of you did.
#19 - March 24, 2013, 10:48 AM

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Is this what you were thinking of, Anne?

http://www.verlakay.com/boards/index.php?topic=65417.0
#20 - March 24, 2013, 11:42 AM
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I do Graphic Design work and I always try to establish upfront what the terms of the work will be. If there is no contract I would personally say your art is up for grabs. lets say a tattoo artist who puts their art online. Anyone can look at that tattoo of a tiger or whatever it is, download it and then tattoo it on another person. What I would do is talk to this person and try to work out a system where you both benefit from sales of your work. The truth in the matter here is that this person was the creative concept and you were able to bring their concept to life. Conceptional thinking plays a major part in this process so you both did this art piece. Remember these are copies and not the original. You got paid already for the commissioned piece. You did what you were paid for.
#21 - March 26, 2013, 06:09 PM

SmallDairy77

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Is this what you were thinking of, Anne?

http://www.verlakay.com/boards/index.php?topic=65417.0

That's a valuable read.  I wish my college would've included more business stuff in their curriculum.  Maybe by now they do.  I minored in business to try to help myself, but experience seems to be the best teacher.  I usually don't understand until I'm actually part of a situation.     

Another question:  Do both of us have to sign each print? 
#22 - March 27, 2013, 06:39 PM

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You should both sign each copy of the contract, if that's what you mean, so that you can both have a fully signed copy of the contract for your records.
#23 - March 27, 2013, 07:21 PM
Harold Underdown

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Just an FYI about signing contracts, just in case -- you can both do so digitally, and is what I've done with recent publishing contracts because artists and writers and the publisher were all over the US. :)
We used Adobe EchoSign in the last instance.

- t
#24 - March 28, 2013, 07:39 AM

SmallDairy77

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I meant, do we both sign the prints of the artwork?    but its good to know how to handle signing the contracts too, cuz that will be happening- thanks. 
#25 - March 28, 2013, 12:06 PM

Markdf

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If you are producing artwork professionally, I strongly recommend you consult with an attorney about the various contracts you might use (note: do NOT use an attorney who does not work in intellectual property. A real estate attorney who is a friend will not be familiar with the nuances of these matters. When I drew up a will, frex, I told the attorney that I needed to address the rights to my books. Despite knowing I was a published writer, he was baffled why I felt the need to specifically bequeath my library).

Joint copyrights can be messy. Honestly, it sounds like until this project, you've been working under the assumption you were doing work for hire. I strongly recommend you and your client bone up on what copyrights are, what you both thought was happening before the work commenced and where you both stand now. Then Write It Up. It sounds like things are cordial, so if costs are an issue, maybe you can work out some kind of financial split. It shouldn't cost too much. Google artist agreements for samples of the issues involved.

Good luck!
#26 - March 28, 2013, 03:32 PM

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It's your art. I don't see why your client would need to sign it.
#27 - March 29, 2013, 04:33 PM
Harold Underdown

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I know this is late in the discussion- but I just asked my husband, who is an attorney, about this scenario- and he said even without a legal contract on paper- you can " have a verbal contract that is binding through context- the mutual understanding of the relationship and correspondence- any emails or notes about the assignment."
He really hates when I try to be a lawyer- but  hope you guys have an agreement already- cause it really comes down to how "cooperative" your client is- cause he does have a legal leg to stand on- learned the hard way too- get a contract!!
Of course as I write this- a piece is coming out in a children's magazine next month and have I returned the contract to them signed yet?....... nope- really should do that when I get home from church!!
#28 - April 21, 2013, 09:07 AM

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