| Contract Monitor Interview | |
An interesting contract came our way recently, interesting in that the client wanted to license the rights to some artwork, and not pay the artist any money. And the artist agreed! What's up with that? Adobe Systems, Inc., makers of Adobe Illustrator, includes with the program something they call the Digital Art Show. The Digital Art Show is a collection of images created by various artists using Adobe Illustrator. Adobe uses it to demonstrate the kind of work that can be done with the product. Adobe contacted an artist we know and asked if he would like to have some of his work included in the Digital Art Show that was being packaged along with the next release of Illustrator. The artist was interested, and Adobe sent him a contract. The contract from Adobe was standard in many ways, with clauses covering the deadline, the rights Adobe was seeking, a warranty from the artist, etc. What set this contract apart was that Adobe was not offering to pay for the rights to the artwork. Since the Monitor is constantly haranguing its readers not to give up rights to artwork without fair compensation, we wanted to know why such a contract, which pays the artist nothing, should be considered, so we asked the artist.
MONITOR: Let's get this straight. You gave away some of your artwork.
ARTIST: Not at all. What I did was to license Adobe to use some of my work in a very specific, very limited way.
MONITOR: But you received no money, right?
ARTIST: Right. But I did get some things in return. First, the images of mine that are in the Digital Art Show will be seen by a lot of people, which is great promotion for me. Second, my name and contact information appears with my work. And third, I didn't create anything new for Adobe. All the images I licensed to them were from previous jobs. Oh, yeah, and they gave me a copy of the new release of Illustrator.
MONITOR: So how much is all that publicity worth?
ARTIST: Hard to say. But I've already gotten a couple of phone calls from people who have seen the Slide Show, so it's certainly effective as a promotion.
MONITOR: Did you negotiate at all with Adobe? Was the contract acceptable to you without changes?
ARTIST: I asked for some changes. Actually, working with Adobe was easy. There were two parts of the contract that concerned me. One was that Adobe wanted the right to use my artwork not only for the Digital Art Show, but for advertising and packaging. To me, that goes beyond what I'm willing to license for free, so I wanted to restrict my art to just the Art Show.
MONITOR: Did Adobe agree?
ARTIST: They did. The other clause that bothered me was called a Disclaimer, where Adobe refused liability for damages in case a third party or end user made use of my artwork. On that issue, Adobe refused to budge.
MONITOR: But you still signed the contract?
ARTIST: Yes I did. They were really willing to negotiate on everything else. Adobe gave me a lot of what I wanted, in terms of rewording the contract. If Adobe had been unwilling to change other parts of the contract, I wouldn't have signed. But they really worked to accommodate me where they could, and I felt I could make this concession.
MONITOR: So both you and Adobe made some concessions?
ARTIST: Yes, and we were both happy with the result.
MONITOR: Did the fact that you weren't being paid change your negotiating strategy at all?
ARTIST: No. It makes no difference. You still have to understand what your client wants, and understand how licensing rights work.
MONITOR: Are there any other circumstances where you'd consider licensing your artwork without being paid a fee?
ARTIST: Well, yeah, for a charity or cause I believed in. But I'd still make sure the contract stated exactly how my work was going to be used, and that my rights were protected.
MONITOR: I want to go back to one thing you said earlier. You said that you didn't create any new work for this project. Does that mean that the artwork you licensed to Adobe, you had previously licensed to someone else?
ARTIST: Right. And that's why you have to be really careful about what rights you sign away. I made sure that with every piece I sent to Adobe, I had retained the right to use the piece again. If I had signed some exclusive-use contract for any of those pieces, I couldn't have let Adobe use them. Or, even worse, if I had done them as work-for-hire, I'd have no right to ever use them again. Tell your readers: Know your rights!
MONITOR: I think you just did! Thanks. (The contract from Adobe is reviewed here.)