Signing your copyright of a portrait, to your commissioning client

[Marcus Lim]

Hi everyone,
I recently met a client who's interested in commissioning a portrait for her family. The thing was, when it came to the part about contract agreements, it came to her that just as my copyrights as an original creator of the would-be portrait, prevent her from making any commercial sale out of the commissioned portrait, she had also wanted to ensure that the portrait wasn't to be used for any other commercial ventures from me.

So she offered to buy my rights to my portrait. What does "buying of my rights" really mean, and what does it entail? What are the possible implications from this selling of my rights from the portrait?

I hope to hear your views on this, and we can all learn from this experience.
Thanks everyone!

[Cindy Procious]

Marcus, according to the Graphic Artists Guild's Handbook for Ethical Pricing Guidelines, selling all rights to an illustration work should be 500% of the original price.

I don't know how this translates to a fine artist - but, the fee should be considerable. Your rights to your work are what gives your work its inherent monetary value (aside from the actual value of the one piece). You have the right to create prints of your work, and sell those - you also have the right to recreate the work and sell that.

Honestly, though, the biggest implication for you (and your heirs and assigns) would be if you became a very famous, very sought after artist. Then the client whom you sold all rights to would own a very valuable piece of art, that they could license and sell prints of all day long, and you wouldn't receive anything from it.

Flooding the market with said prints could also potentially devalue your originals.

Hypothetically speaking, of course.

[Chris Saper]

Marcus,

I like the 500% idea! However, should you decide to sell the copyright,, you can choose any aspect you'd like - for example - the use for a certain length of time; a certain number of copies; a specific use ( for example t- ****s, totebags, etc.) But I would not suggest signing over everything - you will want to retain the right to use the image for marketing, educational purposed, publication etc.

That being said, you might have a red- flag client in hand, who wouldn't give you permission to use the image of the subject, regardless. I have had two clients over the years who did not want to sign model release/image permission forms, and I am very comfortable respecting their wishes for privacy.

You'll have to decide whether it makes sense to push the issue with her, and risk losing the job. And if you take the job, be sure your contract is clear. You might want to add a clause that says if the painting is not accepted by the client, you retain ownership and all copyrights.

[Michele Rushworth]

Copyright law varies greatly in different areas. United States copyright law is probably very different from what you're dealing with in Singapore. Here, there's an organization called "Volunteer Lawyers for the Arts" to help artists with issues like this, at no charge. There might be a similar organization there.

Whichever path you take, you should be sure to have everything you agreed on spelled out very clearly in writing before beginning the job.

Certain portrait images that have universal appeal can bring the artist a lot of money in the "after market". Some images, however, really have no potential appeal other than to the family commissioning the portrait. You'll need to have an idea which category this project falls into before you start.

[Cindy Procious]

Excellent point, Michele. If the portrait really has no marketing potential beyond its initial sale to the client, then it isn't as important to retain the copyright. In that case - you could say something like - an additional 50% of the original fee to purchase all rights - but the artist retains the right to display images of the artwork for portfolio/presentation purposes.

Chris is exactly right - you can sell whatever portion or duration of the copyright you wish to.

(Except that this is only what I know of US copyright law.)

[Marcus Lim]

Originally Posted by Chris Saper

....That being said, you might have a red- flag client in hand, who wouldn't give you permission to use the image of the subject, regardless. I have had two clients over the years who did not want to sign model release/image permission forms, and I am very comfortable respecting their wishes for privacy.

You'll have to decide whether it makes sense to push the issue with her, and risk losing the job. And if you take the job, be sure your contract is clear. You might want to add a clause that says if the painting is not accepted by the client, you retain ownership and all copyrights.

Thanks everyone for all your wonderful contributions so far...I can see that I'm not alone in all this legal debacle. I certainly like the idea of the 500% price tag for my rights, though i'm not sure they're ready to swallow it. And at this point, I'm still feeling a little uncomfortable at the idea of selling my rights - though i must say your contributions here provide some comfort to my frazzled mind.

Chris: I doubt they'd be printing their commissioned portrait to be printed on commercial gifts at any time, but on the contrary the commissioner wanted to prevent that from happening in future, and thus the reason for buying my rights. But your point with the use of model /image release form certainly gives me an alternative to this whole episode.

Michelle: Copyright laws for art, are still at its infancy here and to us professionals here, it's a cowboy town. I believe i'm the only artist in Singapore who holds a bigger gun, using contracts, laws and stuff like that. The last lawyer i called, wanted $8000 just to revamp my existing contracts, so i don't think there are any volunteer legal groups out there who would help...after all, Singapore is a city where everything's about money...

[Marcus Lim]

Latest update on this episode (nonrelevant to the US context):
It seems like this 500% rights idea won't take place after all. Apparently in Singapore, the rights of the commissioned portrait goes to the portrait commissioners, NOT to the portrait artists. The Intellectual Property Office of Singapore mandates this in term copyright clauses found on their website here.

http://www.ipos.gov.sg/leftNav/cop/O...and+Rights.htm

My client has reverted with her lawyer's revamped clauses, and hopes that i'd include it in the contract. For now i can only submit suggestions for provisions in the interpretations of the laws at hand...

[Leslie Ficcaglia]

Marcus, in the link you provided the use of the terms "commissioner" and "commissioned party" is very unclear. It looks to me as though the meanings may be the opposite from your interpretation, based on the context of some of the usage. It says "where a portrait is commissioned by another party" and then goes on to establish the categories of "commissioner" and "commissioned party." Because the term "party" is initially utilized to refer to the client, it seems to me that "commissioned party" also refers to the client and not to the artist.

Furthermore, in all other respects it appears that Singapore copyright law and custom are parallel to that which exists here in the U.S., so it also does not make sense that in the case of commissioned works, and in that case alone. the law should be exactly the opposite. Is there anyone you can check with about this wording?

I would not voluntarily give up the copyright to a work for any reason. But my understanding is that unless a release is signed I cannot utilize the image in any public manner, even on my own website. I also can't sell copies to others, even with a release, unless that use is stipulated or at least implied in the text of the release that's signed.

Leslie

[Michele Rushworth]

There are two laws involved, at least in the United States. The first relates to who owns the copyright. Under current law, the artist owns the copyright on images they create, unless other arrangements are made.

The second law relates to "privacy" or the right of the person depicted to control the use of any images in which they are recognizable. In most cases, an individual owns all rights to the use of anything depicting them, unless otherwise stipulated.

If you include language in your contract that allows you to use images of your portraits in your marketing materials, then you can do that. I don't think it would extend to an artist selling copies of an image.

There was a famous case a few years ago involving an artist who photographed Tiger Woods at a tournament, made a painting and then sold lots of prints of that painting. Tiger Woods sued the artist and won.

[Leslie Ficcaglia]

Michele, I'm aware of the copyright vs. privacy issue, but from some things I've read it looked as though you could include language in your release which would permit use of the image for general trade purposes. Otherwise you couldn't sell any figurative painting of a recognizable person either in its original form or as a copy. The language I use is this, in part. Note that this isn't a contract, it's a release.

I grant permission for the Artist to use reproductions of the Work in promotional material or brochures, for entrance in competitions, and for advertising, trade, or any other lawful purposes, without violation of my rights of privacy or any other personal or proprietary rights I may possess in connection with reproduction of the Work. I have read this release and am fully familiar with its contents.

Above that paragraph the release notes that while the client has physical possession and ownership of the work, all rights of reproduction belong to the artist and neither the original work nor any reproductions can be altered in any way. I think the wording comes from one of the books on legal contracts for artists.

Leslie