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Is a paid-up-front illustrator entitled to royalties?

If I hire an illustrator for artwork, and I pay up front on a per-illustration basis, what copyright gotchas should I be aware of? Does the artist own the copyright on the illustrations - or do I, since it was a work-for-hire? Can I make unlimited copies of my book without owing the artist another cent? Even if we don't agree on royalties, can she sue for them later? Should I have her sign a contract, and if so, what kind of contract? Can you point me at an example contract?

Also... can I re-release my material in a different edition or format, and re-release the illustrations too, without having to sign a new contract with the artist? Let's say I print a book of poems with illustrations. Then, I produce a new anthology of poems, with selections from the first book. Could I re-use some of the artwork in my new book without running afoul of copyright restrictions, or even contacting the artist?

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2 Answers 2

If you want to obtain the copyright for any artwork, you must put it in writing. Otherwise, the artist will retain copyright, while you will merely have a license to use the artwork in the book for which they were created, and the artist may bar you from using the artwork in other books, or even other editions of the same book.

Your contract should specifically state:

This is a work made for hire.

and

(The artist) will assign all rights in the artwork to (you).

And as a backup, add:

in the event that copyright assignment fails as a matter of law, (the artist) grants (you) an exclusive, irrevocable, fully paid up universe-wide license to use the artwork in any work, any form and on any media currently in existence or invented in the future.

This should cover you, but please keep in mind, I am not a lawyer. When in doubt, you should always seek professional advice.

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Thank you for the advice. How did you come up with this language? Is this what you use... is this what a lawyer advised you to use? –  yetimoner Oct 16 '11 at 18:23

Here's how it shook out with regard to my own project.

My illustrator wanted to retain the copyright, and grant me a limited-use license in conjunction with my creative work. When pressed, she gave me a second, higher price for relinquishing the copyright. I took the first option.

Here is the language we settled on:

The Artist grants the Client exclusive reproduction rights, excepting that the Artist retains the right to use the Artwork for self-promotion, in the Artist's portfolio, for the production and sale of prints, cards, calendars and similar products, and for inclusion in collections of the Artist's work, provided that the Artist does not use the Artwork in connection with a literary or cinematic work of any kind. The Client's right to reproduce the Artwork is unlimited provided that such use is in connection with or to promote the Client's product.

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