Cover Art: How to Not Get Ripped Off (or Sued) - Part 1
A little while ago, a designer friend posted to a private Facebook group I’m a part of with an image of a cover painting recently commissioned by an indie author. The painting bore a striking resemblance to another painting done years ago by a rather well-known artist–in fact, once the “new commission” was laid atop the original with the transparency turned down, there were enough identical details that it became obvious that this was not just a similar painting… it was the same one, traced and painted over with new colors by the newly commissioned artist.
For those of you without a passing grasp of copyright law, this is theft. It would be roughly the equivalent of an author lifting a chapter from Harry Potter and the Philosopher’s Stone, changing the names and some of the details, and dropping it wholesale into your novel.
The discovery was devastating for the author, who believed she had commissioned an original work. Although she paid a (to me, shockingly) low fee for the custom work, she had invested over a thousand dollars in having copies of the book printed for an upcoming convention. Copies that now had stolen artwork on the cover, which would make her legally liable, should the original artist decide to pursue it.
The illustrator she had commissioned, predictably, had disappeared.
Unfortunately, this is not the first time I’ve seen something like this happen–and it wasn’t the last. What was almost as upsetting as the theft itself was the outpouring of abject ignorance on the part of this author’s fellow writers. It became clear to me that a large number of authors go into the business without a basic understanding of copyright. Some of them aren’t aware of how it even applies to their own work, much less the realm of visual arts.
If you don’t have a basic grasp of the rules, there’s no way to protect yourself from getting taken for a ride–or for inadvertently doing the same to someone else, and opening yourself up to serious legal trouble.
Here are a few things every writer needs to know about copyright.
A caveat. I am not a lawyer, and nothing I say here should be a substitute for legitimate legal advice. I am also based in the US, and while most of the developed world treats copyright in a similar manner, there will of course be variations depending on where you live. Nothing will protect you like a solid understanding of the copyright laws in your country, and in the countries you do business.
Let me start with the first and most obvious one, which I’m hoping most of you are already aware of:
If you didn't create it, you can't use it for commercial purposes (unless...)
This means using it on the cover of your book. This means using it to market your book. This means using it on your website or blog.
It doesn’t matter if the image was “freely available” for you to take off the internet. Google does not legally distribute images for your use. The primary use of the internet and the search engines (like Google) that allow you access to it is informational. Plucking an image out of the image search does not give you the rights to use it.
Without this permission, you are open to a lawsuit from the original creator–and “I didn’t know” is not a recognized legal defense.
Copyright does not need to be registered to be recognized as valid.
According to The Copyright Society of the USA: “The copyright in a work of authorship immediately becomes the property of the author who created it at the moment it is put into fixed form.”
That means the moment an author types out a paragraph, or an artist paints an image, all rights to its use are automatically theirs. In most cases, it’s fairly simple to prove who initially created a single-creator work, based on things like digital file metadata and supporting evidence such as outlines, rough drafts, sketches, reference images, email records, stock licenses, receipts, witness statements, etc. A property that is stolen in its final form rarely has any of the above supporting evidence.
Paying for artwork doesn't give you all rights.
In fact, without written agreement (such as a design contract), payment doesn’t give you any rights. You’ve simply donated money to an artist–so generous of you!
Many authors are under the impression that since they’ve paid for the artwork, they can do whatever they want with it… and that’s just not how copyright law works. If this were the case, you could commission artwork and not only use it as a book cover, you could claim it was your own artwork. This is how the ghostwriting industry works–a writer signs a contract yielding their right of attribution to another party, who can then legally claim to be the creator of the work.
But it was based on my idea!
You can’t copyright an idea–only the expression of that idea. So, you can claim copyright over the words you wrote to describe your idea… but not the same idea translated by someone else into a visual medium. Unless, of course, the artist licenses you those rights, or there are valid, enforceable trademarks involved.
But what about ‘work-for-hire’?
‘Works made for hire’ are automatically the sole property of an employer, or in certain specific instances, to the party who commissioned the work. Here are the instances in which a work is considered ‘made for hire’, according to the CSUSA:
A “work for-hire” is either (1) a work prepared by an employee as part of her work, in which case the employer owns the copyright in the work, or (2) a work specially commissioned or ordered as a contribution to a Collective Work or Compilation, in which case the person or company commissioning or ordering the work owns the copyright in the work.
CSUSA further defines a Collective Work as “a work, such as an encyclopedia or anthology, that includes a number of separate smaller works” and a Compilation as “a work formed by collecting preexisting material or facts and selecting or arranging them in an original way. A Collective Work is a type of compilation.”
In almost every case, the cover art made for your novel does not fit any of these definitions. Your designer cannot be considered your employee unless you have direct control over how, where, and when they carry out their work, and are providing a significant portion of their total income. Savvy authors build their careers by retaining control over as many rights to their own work as possible, and the same applies to artists. Do not assume rights–make sure they’re spelled out in your agreement.
To protect yourself, your written agreement should state exactly what rights you have licensed, and whether there are any conditions on those rights–for instance, an agreement may state that it is okay for you to use the artwork as a book cover, but not printed on merchandise, or in the development or marketing of a feature film.
All rights have an associated cost.
At this point, most authors will simply state that they refuse to do business with any designer or artist that will not grant them full rights. Before you get your heels dug in, understand that very few artists will outright refuse to sell you any rights you want. What an artist may do is refuse to give them to you for free. That’s not how the business works.
Very few artists will outright refuse to sell you any rights you want. What an artist may do is refuse to give them to you for free. That's not how the business works.
This can be a point of confusion for artists or authors who are only familiar with the business practices of large design agencies, who generally provide all or most rights, as well as any relevant source files (drafts, sketches, concepts, vectors, layered PSD files, etc) as part of their base contract. However, these contracts are usually for projects in the $1,000+ range, and I promise you, the accounting department included the cost for all rights and source files in that fee.
You will not receive the same inclusion of rights in a $125 project, nor is it reasonable for you to expect that from a professional designer. The full assignment of rights, free of additional charge, is not standard in any part of the industry.
Some authors feel understandably frustrated because the non-professional, part-time, freelance art-school student they hired for a project six years ago happily signed over all rights, in return for cost of supplies and the thrilling chance to have their artwork on a book cover. However, working with an non-professional who doesn’t have a solid knowledge of copyright law–and perhaps doesn’t conform to industry standards–will almost always be less expensive in the short term, but that opens you up to a whole host of other risks that aren’t ideal for an author who takes their business seriously.
In almost every case I have seen where an author has been defrauded by their artist, or has ended up with a product they are unsatisfied with, the author attempted to purchase their cover art from a non- or semi-professional at a rate far below market standard. It seemed cheap at the beginning, but I assure you that it didn’t end up that way for the authors involved.
Don’t expect to pay Walmart prices for a Gucci handbag, and get a genuine article.
Don't expect to pay Walmart prices for a Gucci handbag, and get a genuine article.
When dealing with a professional artist, is is perfectly reasonable for you, the author, to expect to be able to obtain all desired rights to the artwork you have commissioned–but you must also expect to pay for these rights.
And for the love of all that’s holy, please have this conversation before work begins.
Now, before you decide this is all just a cash grab where the artist can just hold you hostage, artists have a very good reason for wanting to hang onto their rights, aside from money. To use my own illustration services as an example, modification rights (the rights to change a work after it has been completed) are not included in my base illustration package. They can be purchased, but it more than doubles the price for the simple reason that it devalues my right of attribution.
I have on occasion seen my own work changed to the point that I don’t want my name associated with the final product, because it would reflect poorly on me as an artist. This is absolutely a sacrifice I’m willing to make if it’s important to the client, but it comes at a cost to both of us. For me, the cost is the risk to my reputation or any added value the work may have provided in bringing more clients to my business, should I choose not to claim credit for it. For the author, the cost is how hard the project will hit their wallet.
Obtaining source files.
Speaking of modification rights… one thing that can be very convenient for authors is to receive the layered source file for their cover art, with each element on a seperate layer. This, along with the modification rights–without which the source files are useless–would allow them to change the text on the cover at will, without having to go through the original designer. They can also modify the artwork later if necessary, or use all or part of the artwork in various other applications–for marketing graphics, merchandise, etc.
However, it can sometimes be tricky to get an artist to part with their source files and the attendant rights of modification. One of the reasons an artist may hesitate to allow you access to a source file is because they have used resources in the creation of the artwork–such as fonts and stock photos, etc–to which they themselves only have limited rights, and they are unable to legally redistribute them except as part of the final work. Additionally, the limited rights might allow the artist to create a book cover, but not to create a tshirt with the same resources. Generally, stock companies have one license for things like marketing images, book covers, etc… and another, more costly license (usually called an “extended license”) for things like mugs, tshirts, etc.
In these cases, transferring the layered artwork to you would make the artist legally liable, especially if you went on to misuse the artwork against the terms of the original resource licenses. Most artists are unwilling to accept this kind of legal liability.
Fortunately, there’s a solution–if your cover artist has used third-party resources such as stock images, licensed fonts, etc, you should be able to request a list of the resources used, which you can then yourself license (at the appropriate level, depending on how you intend to use them). This would then remove any legal liability on the part of the artist, and allow a transfer of the original layered source files.
There may still be an additional cost due to the artist in order to obtain the source file, for the reason I cited above–the possible damage to the artist’s reputation if you make a mess of the cover.
Rights are not free.
I’m coming back to this because it seems to be such a point of division and confusion. If you are having trouble getting your artist to part with a right that you want, it is probably because you have not hit on the correct dollar amount.
If you are having trouble getting your artist to part with a right that you want, it is probably because you have not hit on the correct dollar amount.
I promise you, every artist has one.
Stolen artwork will cost you.
If your artist has not been above-board in the production of your cover–for instance, if they have traced and painted over another artist’s work without permission, or have included unlicensed artwork or photography–you’re the one on the hook, not them.
For instance, once upon a time, an unscrupulous designer sold an unsuspecting author a cover that was simply a promo image for The Vampire Diaries tv show. If the author used the cover for their book, and Warner Brothers decided to sue… they would sue the author, not the designer. It would be then up to you to recoup your losses from the designer, if that’s even possible. Therefore, it is your responsibility to be sure you are working with reputable professionals who can offer you assurance of the legitimacy of their work.