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.

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G R A P H I C A R T I S T S G U I L D

N a t i o n a l C o n t r a c t M o n i t o r

v o l . 3 , n o . 2

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July 2000 - COPYRIGHT FAQs
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Hello Contract Monitor Subscribers!
We hope that you're having a great summer. Your stalwart Contracteers
have been hard at work on the flurry of "take-it-or-leave-it"
contracts that so many multi-mega-conglomerate publishing empires
have been sending your way-- among them, the new New York Times &
Business Week blanket contracts for illustrators, and the Boston
Globe super-blanket contract for ALL freelance contributors (writers,
illustrators, designers, and photographers). We are making progress
on all fronts, and we will keep you updated as news breaks on each of
these important contract issues.
Something we are seeing more & more, whenever we get a new contract
to analyze, is the ever-increasing grab for rights that the client
may not need and may never use-- and for which they are often
unwilling to compensate the artist.
We believe that the best way you can combat this in your negotiation
with your client is for you, the artist, to be armed with an
understanding of the basic principles of copyright that underlie
every contract clause and grant of rights you face.
To that end, we'd like to give you some useful definitions and
examples. Read on, and refresh your knowledge of what *exactly* a
contract IS, what copyright is, and how to craft a grant of rights
that both meets your clients' real needs AND protects your rights in
your creative work.
The following is excerpted from 'The Warrior Queen's Guide to
Contracts" written by Claudia Karabaic Sargent.

___________________________________________________________

A contract is an agreement, which can be oral or written, that
creates legally enforceable obligations between two or more parties.
Contracts MUST:
· reflect an exchange of value for value between the parties
(i.e., clients' money/tearsheets/publicity/ your credit line in
exchange for rights to your artwork)
Contracts SHOULD:
· reflect a "meeting of the minds"
· be mutually beneficial
· be a win-win scenario for both parties
___________________________________________________________
What is copyright?
Copyright is a "bundle of rights", infinitely divisible, where each
separate right of reproduction (or usage) can be transferred
individually or collectively by the copyright owner to another
individual or entity.
The rights of copyright include:
(a)the right to reproduce or copy a physical object for intended
dissemination to the public.
(b)the right to create derivative works based on the original.
(c)the right to distribute the reproductions made from the
original.
(d)the right to publicly perform (such as a copyrighted piece of
music or choreography)
(e)the right to display works.
___________________________________________________________
When you say that "Copyright is a `bundle of rights',
infinitely divisible," what exactly does that mean?
The heart of any contract that any artist signs in the course of
their work consists of two things:
· the "grant of rights" the artist is giving to the client
· the "consideration" (usually money) that the artist receives
from the client in exchange for that grant of rights.
The key to getting the most out of every piece of artwork you create
is to craft your grants of rights as narrowly as you can, and to get
as much consideration for each of those grants as you can get.
For instance, would you knowingly grant a magazine publisher the
right to use your artwork on coffee mugs and tea cozies? If you sign
an agreement that grants the publisher "all rights" or "the right to
sublicense the work to third parties", without specifying that you
are to be paid extra for those uses, or reserving those rights to
yourself-- the publisher may be able to make whatever they like out
of your work.
___________________________________________________________
What are the ways to craft a grant of rights, so that the artist can
maximize the use and profitability of their images?
There are as many ways to craft a grant of rights as there are ways
to use artwork. Here are some of the criteria you can use:
EXCLUSIVITY VS. NON-EXCLUSIVITY:
When you grant an exclusive right to a client, that means no one else
can use the artwork the exact same way, under the limitations of the
grant.
A non-exclusive grant may be used by many different clients in
exactly the same way.
Exclusive grants of rights will cost the client more (because the
artist is restricted in their selling of that image to other parties
for the same use).
Exclusive grants must, by law, be made in writing; non-exclusive
grants need not be (but should be for your and your clients'
protection).
NOTE: A non-exclusive grant of rights that isn't limited in any
way (by time, geography, media, market, etc.) can damage your ability
to make exclusive grants of rights in the artwork.
CATEGORY OF USE:
Specify what kind of license you are granting-- advertising use;
editorial; publishing; corporate; TV; electronic; use on
wholesale/retail goods; etc. You can usually tell the category of use
that your work falls into by what your client's main business is.
If you're in doubt, ask!
MEDIUM OF USE:
Specify the media or item(s) in or on which the work will appear;
billboards, brochures, magazines, newspapers, hardcover trade book,
mass-market paperback, business-to-business communications,
television commercials, on-screen use for a movie or TV show, web
usage, greeting cards, giftwrap, apparel, housewares, mouse pads,
coffee mugs, doormats, house flags, decorative switchplates, etc.,
etc., etc.
REMEMBER:the more specific you are in delineating the media of use,
the narrower your grant of rights; that means there are more uses to
which you can put your work.
GEOGRAPHIC AREA (OR TERRITORY) OF USE:
This can be as specific as you make it. If you're working with a
magazine or newspaper that only distributes within your city, limit
their use to your city alone. If you're creating a greeting card
for a company that only sells cards in North America, grant them
North American rights only, and keep the other 6 continents for
yourself.
"World Rights" and "Rights Throughout The Universe Now Known Or
Heretofore To Be Discovered" should only be granted to companies who
can actually utilize them-- and they should pay you accordingly!
TIME PERIOD (OR TERM) OF USE:
Again, the shorter the term of use, the more times you can sell the
artwork.
In general, the longer the term that you are locking yourself into,
the higher your compensation (either flat fee or a
dvance-against-royalty) should be.
Avoid signing contracts that use words like "in perpetuity"-- current
law will permit you to terminate that grant of rights & revert it
back to yourself after 35 years, but it requires the artist to
actively pursue prescribed remedies with the Copyright Office in
order to do so.
THE NUMBER AND/OR ORDER OF USES:
You can specify how many times a piece is to be used; one-time use,
or several times (specify how many uses, OR the period of time over
which the piece can be used by the client-- i.e., 6 ad insertions
within a 6 month period).
You can also specify if you are granting the client the FIRST right
(or second, or subsequent) to use the artwork in a particular way.
NOTE: Keep in mind, that if you specify that a client has the FIRST
right to use the artwork and you do not limit the time within which
that right must be exercised by the client, you can find yourself
unable to re-use your artwork at all, if the original client never
publishes. It's best to write into your grant of rights an
automatic reversion to you of the first right to publish if the
client doesn't exercise their right within a specific period of
time-- 60 days, one year, 3 years-- whatever makes sense to you and
to your client.
___________________________________________________________
Here are some examples of grants of rights, and what they mean:
FIRST NORTH AMERICAN SERIAL RIGHTS --
the exclusive right to first publish in North America in a magazine
or newspaper.
("Serial" refers to any publication that is published on a regular,
numbered basis, i.e., in a series. If you look at a magazine or
newspaper masthead, you will see that each issue has a unique Volume
& Issue number.)
ALL GREETING CARD, NOTECARD, STATIONERY, GIFTWRAP, AND GIFTBAG RIGHTS
THROUGHOUT THE WORLD FOR A FIVE YEAR TERM, COMMENCING ON JANUARY 1ST,
2001--
The artwork can be used on any of the items specified, by this client
exclusively, anywhere in the world from January 1st, 2001 until
December 31st, 2005.
All these rights revert back to the artist on January 1st, 2006,
unless there is a provision for automatic renewal of the term
(sometimes called an "automatic rollover").
NON-EXCLUSIVE ONE-TIME USE ON-SCREEN FOR CABLE & BROADCAST
TRANSMISSION OF EPISODE 341 OF TELEVISION SERIES ENTITLED "FRIENDS"--
Non-exclusive means that you can craft another, separate grant of
rights so that your art can appear on "Frasier", too.
One-time means that the network must come back to you when they
re-broadcast or syndicate the series episode in which your art
appears, or cut it from the program.
Cable & broadcast covers the client's ability to transmit the
program with your artwork though both forms of transmission, but not
necessarily through satellite transmission.
Television only means no print, electronic, or other use.
Specifying the episode of "Friends" limits the client's use to
that episode alone, on that TV series alone.
ALL RIGHTS IN ALL MEDIA NOW KNOWN OR HERETOFORE TO BE INVENTED, IN
PERPETUITY--
You know what this means-- you have no more rights to grant!
___________________________________________________________
In conclusion-- the more specific you are in crafting your grant of
rights, the more rights you have left to grant; the more rights you
can grant, the more potential your work has to earn you more money.
It is possible to have your cake and eat it, too, when you divvy up
the Copyright Cake in a knowledgeable way.
___________________________________________________________
**ALERT****ALERT****ALERT****ALERT****ALERT****ALERT**
THE COPYRIGHT OFFICE IN WASHINGTON, D.C. NEEDS YOUR HELP!!!
The federal budget axe is poised to fall on the Copyright Office's
budget for the upcoming fiscal year. As creators, we rely heavily on
the Copyright Office's ability to promptly respond to our need to
protect our most precious commodity-- our intellectual property.
YOU CAN HELP.
HERE'S HOW:
Take a few minutes of your time and go to the Guild's Web Board (you
may need to register before using it-- it's free, easy, and open to
the entire community, Guild member or not).
Here's the link to the message:
http://www.gag.org:8080/read?2920,25
Write a letter to each of your 2 Senators, and to your Representative
in Congress.
Send your letter to both their Washington, D.C. office & their office
in your community (copies are fine, but make sure each letter has a
live, not photocopied, signature).
Keep it short.
Tell them why the Copyright Office is vital to you and your business.
Remind your Senators & Representative that YOU VOTE (better yet, that
you voted or will vote for them).
DO IT TODAY. A responsive democracy is YOUR responsibility!
**ALERT****ALERT****ALERT****ALERT****ALERT****ALERT**
___________________________________________________________
Well, that's it for now. Watch for CMN Updates on the Business Week,
Boston Globe, & NY Times contracts in the weeks upcoming.
Enjoy yourselves!
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Remember: Without you, we're nothing. We encourage you to participate
with us. If you have comments on companies and contracts featured in
the Monitor, send them to us. When you are given a new contract to
sign, alert us to any terms you think might be unfair. And send us
any contracts you think we would be interested in seeing.
LEGIBLE hard copies of contracts should be MAILED (not faxed) to:
Contracts
Graphic Artists Guild
90 John Street, Suite 403
New York, NY 10038
Until next issue....
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The Graphic Artists Guild National Contract Monitor is an
intermittent e-mail service published by the Graphic Artists
Guild (http://www.gag.org), a not-for-profit organization
headquartered in the
State of New York. Information provided in the Contract
Monitor is accurate to the best of our knowledge.
The Graphic Artists Guild provides this
information to members to help them make informed choices.
The Guild encourages reproduction and distribution of this
document for the benefit of free-lance artists and designers.
Please credit the Graphic Artists Guild, and do not alter
contents.
Back issues of the National Contract Monitor are posted at
http://www.gag.org/contracts/contracts.html. The web site also
contains
a glossary of legalese and other useful features.
The Graphic Artists Guild promotes and protects the
economic interests of its members. It is committed
to improving conditions for all creators of graphic
art, and to raising standards for the entire industry.
The Guild is a union that embraces creators at all
levels of skill and expertise who produce graphic art
ntended for presentation as originals or reproductions.
(c) 2000 Graphic Artists Guild

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