Welcome to the Contract Monitor Newsletter!

On a cold, snowy winter's day what would make a creative most happy? A cozy fire, a glass of Shiraz, someone to shovel that two feet of snow and a great contract to pay for a Caribbean vacation. With dreams of a sunny beach and margaritas, you check all the fine print before signing on the dotted line, and then you spy the Warranty/ Indemnification clause.

"You (the artist) warrants that all Commissioned Material delivered hereunder will be new and original, free from plagiarized, defamatory, copyright infringing or otherwise unlawful matter or matter volatile of the rights of third parties and you agreed to indemnify the publisher from all loss, liability, damage and expenses arising out of the breach of or ALLEGED BREACH of any of said warranties."

Wait a minute! The plane is taking off, but you aren't sure you want to take this trip. What is this with ALLEGED BREACH? You hope it has nothing to do with Bush and his Iraq policy. The above contract clause warrants (assures that a fact is true) and indemnifies (agrees to compensate for any losses or damages if the warranty is violated or supposedly violated). The clause states, that you, the artist warrants-assures that the artwork is original, and does not violate copyright law... The indemnity is that you also agree to compensate the publisher against any losses, liability, damages and expenses for the breach or alleged breach of the warranty-the assurance that the work is original and does not violate anyone's copyright. In other words, you are financially responsible if someone brings a lawsuit against the publisher for copyright infringement, whether or not you are shown to have actually infringed on that person's copyrights.

Your alleged infringement of someone's copyright would enable the publisher to set off the trigger for the indemnity, the compensation for the copyright infringement. You are considered guilty and you haven't even been tried yet. This type of indemnity is benefits the publisher because almost all lawsuits settle out of court. Bringing a lawsuit to court for a trial entails thousands of dollars for a defense attorney as well as loss of revenue and unneeded publicity. The publisher's incentive is to settle. And why not, when the publisher could force the artist to pick up the tab for the suit- $5,000 -$10,000 or even more. Strike out "alleged breach" to avoid the possibility of a financial nightmare.

A warranty/Indemnification clause is not always detrimental to the artist. Remember, the publisher wants a guarantee that the work you created will not violate the copyright of another person. It is customary that mention of legal fees that will be covered by the artist in case of copyright infringement be included. It is the subtle differences in phrasing that can make a warranty/indemnity clause beneficial or disastrous.

You can improve upon a warranty of non infringement by adding that your artwork does not infringe on anyone's copyright "to the best of your knowledge and belief." This means that if you don't know about a similar work, you are not liable for the similarity. If possible, do not sign an indemnity clause, that requires you to hold the client harmless. You could wind up being the responsible party and paying the attorney's fees and damages even if you do not have any input into the defense of any copyright in-fringement lawsuit brought against you and the publisher for the artwork you created for the publisher. Do NOT sign the clause if it covers "all actions arising from the art-work," since frivolous lawsuits can still bankrupt you. If the clause instead says "all judgments arising from the artwork," you are limited to actual lost cases. Try to limit your liability to copyright infringement; avoid inclusion of trade dress.

When you have the opportunity to write up the contract for a client, the inclusion of a Warranty of Originality clause assures the client that the artwork that you created does not violate the copyright of any party to the best your knowledge. An example of wording for such a clause can be in the Graphic Artists Guild's Pricing & Ethical Guidelines:

Warranty of Originality

"The illustrator /designer warrants and represents that, to the best of his/her knowl-edge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that the illustrator has full authority to make this agreement; and that the work prepared by the illustrator/designer does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of the illustrator's/designer's product that may infringe on the rights of others. Client expressly agrees that it will hold the illustrator/designer harmless for all liability caused by the Client's use of the illustrator's/designer's product to the extent such use infringes on the right of others."

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Copyright Awareness Week March 9 -15 2003

The Copyright Society of the U.S.A (CSUSA).is a not-for-profit, non-political organi-zation that aims to educate the public about U.S. copyright law. With this goal in mind, CSUSA (www.csusa.org) again leads the initiative of Copyright Awareness Week - fostering greater understanding and appreciation of copyright. Two CSUSA initiative are F.A.C.E. (Friends of Active Copyright Education) and Copyright Kids. Both haveWeb sites to educate the public about copyright.

F.A.C.E (www.face-copyright.org) has information on copyright for moving and still images, the internet, words, music, and international usage. The site also contains a link to the U.S. Copyright Office for additional information and registration instructions.

The Copyright Kids site (www.copyrightkids.org teaches Middle School kids about copyright in a fun and interactive environment. In a short movie, The Yearbook Club, "Copyright Cat" introduces the students to the concept of copyright and copyright law. The web site also includes sample Permission Letters and a link to register your own copyright via the US Copyright Office as well as a resource page and curriculum materials for teachers and parents. Quiz whizzes are sure to enjoy the site's Copyright Challenge.

"As the country's second largest export industry, copyright is not an issue for the few but for all of us". Copyright Society of the U.S.A.

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Graphic Artists Guild

Being a member of the Graphic Artists Guild is a way of getting respect for your work. We promote and protect the economic interest of our members. We are committed to improving conditions for all creators of graphic arts and raising standards for the entire industry.

Join the Graphic Artists Guild Ð become a member of a community where your voice can be heard, your questions answered and where you come first.

www.gag.org/join/index.php

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Without you, we're nothing! The Contract Monitor needs you to make it work and we encourage you to participate with us. We welcome contracts for review and possible inclusion in future issues of the Monitor. We are looking for contracts that encompass all aspects of graphic design - retainer contracts, temporary work agreements, web design contracts and teaching/course development contracts as well as illustrator/publisher. The contracts, however must not have any non-disclosure agreements. We follow the rule of strict confidentially.

You can e-mail us at contractmonitor@gag.org with your questions and comments.

The Contract Monitor is a bi-monthly email newsletter geared towards the creative visual media community. Information provided in the Contract Monitor is accurate to the best of our knowledge as of the date shown above. The Guild proves this information to members to help them make better business decisions.

The Guild encourages reproduction and distribution of this document for the benefit of freelance artists, illustrators and designers.

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Graphic Artists Guild
Contract Monitor
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Disclaimer: This information is true and accurate as of the dates specified, to the best of our knowledge and belief, and is provided by the Graphic Artists Guild to help artists make informed choices.