If you own a painting, do you own the right to reproduce it?
This issue came up in a sort-of sideways manner for me just now while dealing with cover art issues. Another party to the discussion was a little hazy on the issues involved. No shame in that, as it is a specialized area.
Rather than just writing an explanation for the person with whom the issue came up, I thought I might as well write a quick little essay for all and sundry to see. And, as usual, a disclaimer that I am NOT a lawyer or an authority on intellectual property, and I am dealing in general principles, not giving legal advice. Laws vary from here to there, etc. You’re on your own — but here’s a broad sketch of the basic rules of the game.
Broadly speaking, the person who creates a piece of intellectual property owns it, and has the right to possess it, sell it, or grant other persons the right to use that property. This applies to a book manuscript, a song, a photograph, a piece of art, or whatever.
This has just about nothing to do with ownership of the physical object that holds the intellectual property. In theory, if I broke into your house, and stole your laptop, and used it to write the Great Armenian Novel, and the cops tracked me down, caught me, and returned the laptop to you, then I would of course have committed a crime — theft. If you then found my novel on your laptop, you might decide the manuscript belonged to you because it was on your laptop. If you then went ahead and published it, you’d be committing the crime of intellectual property theft.
Similar issues popped up when the author of The Girl with the Dragon Tattoo died, leaving behind a laptop computer that contained unpublished works. His girlfriend had possession of the laptop with the unpublished work on it, but under Swedish law she didn’t have any right of inheritance of that work. Search on “Stieg Larsson laptop” and you can dive down that particular rabbit hole.
If you were hired by the Acme Greeting Card Company to draw art for their cards, and/or write poems for said cards, you would almost certainly be called upon to sign an agreement granting them rights to ownership of the intellectual property you created as their employee. If you sat in their offices and used company-owned computers, papers, pens, brushes, artboard, paints, etc. etc. etc. to create that intellectual property (let’s call it IP from now on to save typing) and the physical object that held that intellectual property, then the company would of course still own the physical manifestation of the IP — the paper the poem was printed on, the artboard and ink and paint that formed the painting, etc.
If you did contract work (as opposed to working as a full-time employee) for Acme Greeting, you might still sign a contract granting them ownership of your work product — the IP — in exchange for whatever compensation was agreed. If so, the physical manifestations of the IP — the papers and paintings — would still remain your property. Unless, of course, your original agreement included language to the contrary, or you sold them as part of some other transaction.
If Acme failed to pay you for your greeting card poem, it would be a fairly close analog to someone agreeing to buy regular physical property from you, and then not paying. In both cases, the transaction would not be complete, and possession would not have been transferred, until compensation was received (unless you made some amazingly thick-skulled agreement that said otherwise).
What happens to the IP if you’re a regular employee who has signed an agreement ceding ownership of IP to Acme and they fail to pay your salary, or go bust before you’re paid? I have no idea. Read your contract. Talk to a lawyer. It gets damned complicated really fast. Basically, that sort of thing is covered in the contract. Or should be.
When I sign a publishing contract with an author, or a cover-art contract with an artist, that contract not only includes a clear description of what intellectual rights I am purchasing, it spells out what happens to the physical manuscript or the physical painting after I have made use of them to create the book. Typically, the contract specifies that the paper manuscript and physical painting are to be returned, in good condition. (Except that I don’t think I have ever used a physical painting. Artists these days do their own scans of their images and just send the image file, retaining the original. Likewise, authors send me computer files, not original manuscripts.)
Let’s focus on the cover art. Let’s say I have commissioned cover art from Fred Zilch. I have received a CD-ROM disk that contains a high-resolution version of the image. Fred might have painted a painting on canvas, or created a computer image with Photoshop, or photographed a model (and let’s not get into model contracts and releases!). Doesn’t matter, but for this example, let’s say it’s a painting. I have the image in the format I need. I pay for it. Here the boilerplate language I use in my cover art contract (omitting the verbiage that covers what happens if I go bankrupt or he defrauds me, etc.):
- In consideration of the payment of US$XXX(dollar value written out in words) by FoxAcre Press to the Artist, the Artist hereby grants to FoxAcre Press the right to use the image “Cover Image In Question” by Artist Name, hereinafter the Image, on the cover and/or as an interior illustration of any and all FoxAcre Press print and electronic book (hereinafter “ebook”) editions of The Work by Author Name entitled Title of Book, hereinafter the Work. FoxAcre Press shall have the right to use this image, and reproductions of the book cover incorporating this image, in all print and electronic forms, for purposes of promoting the Work and FoxAcre Press. The Artist agrees not to grant competitive rights to any other individual or organization.
- All other rights to the artwork, and the original artwork itself, remain the property of the artist, unless such rights and artwork are purchased in a separate agreement.
- The Artist asserts that the Image is original to himself, and that he owns all rights to the Image herein conveyed to FoxAcre Press, and assumes all liability for any copyright infringement caused by use of the image.
At this point, “ownership” of the image has been sliced and diced. Here’s who has what:
- Fred owns the CD-ROM, at least in principal. In practice, no one gives a damn.
- I own the right to reproduce the image as a book cover illustration, and to use the image of the cover itself, and the image of the book itself, in order to promote the book. Probably it would be prudent to include language allowing me to retouch or adjust or crop the image as used on the cover. In practice, everyone knows and expects that the image’s proportions will have to be cropped to fit the shape of the cover, that I can retouch the bits of dust off the image and pop up the contrast, or airbrush out the oddly Freudian bit of imagery that no one notices until someone points it out and then everyone notices is (yeah, it happened).
- Fred has also, in effect, granted me the right to prevent him from using the image on any other book, so you could say I own that right of prevention.
- Fred still owns the right to use the image in ways that don’t compete with the book I am publishing. He could, in theory, sell it for use on a music album cover, or a tee-shirt, or a poster, so long as that didn’t compete or interfere with selling the book. He might include the image on his website to show his work off to other publishers. He could sell prints of the image. (This is all based on the above boilerplate language. A contract might well include language that specifically precluded, say, tee-shirt sales. If there was some specific purpose that Fred intended to retain, he might request language specifically permitting something — art print sales, say — just to be on the safe side. But, since the contract language has the very broad statement that he owns “all other rights” he might not bother. Or he might decide he didn’t want to bring that use to my attention, as I might decide that if Fred wants tee-shirt rights that much, they must have value, and I’d better bully him into granting me those rights as well. Thus the game is played.)
- Fred still owns the painting. He can sell the painting to the noted and gullible collector Ned Nertz. When Ned drops dead, and his nephew Ted Blank inherits it, then Ted owns it. If Ted gives the painting to his girlfriend Nurleen Yoinks, then Nurleen owns it. It is a piece of physical property subject to ordinary rules and laws of ownership.
If Fred sells prints of the painting, these too are pieces of ordinary physical property. If Nurleen Yoinks wanders into a print shop and sees the prints for sale, or if she goes into a bookstore and sees a book that uses Fred’s art on the cover, she might think she can sue and get filthy rich, but she can’t. She owns the physical painting, not the intellectual property rights. It is an exact analogy to someone imagining they own the intellectual rights to Gone With the Wind because someone gave them a copy of the book — or the original manuscript of the book.
I was at a con once wherein a newly successful author who (a) shall remain nameless (b) should have known better and (c) didn’t, set up a big old booth in the dealer’s room. He was selling copies of his books (fine) and using blow-up images of the book covers as posters (possibly some sort of technical violation of rights, but what the hell) and also selling such items as coffee mugs, tee-shirts, and mouse pads (I don’t recall the precise merchandise, but you get the idea). All these items bore the image of his book’s cover — and therefore, the cover artist’s art. This was not fine. The author even had a little booth set up where you could dress up like a character from the book and have your picture taken in a backdrop based on the book cover — for a small fee. Even more not fine, on account of being a really lame idea. Probably the total outlay for all this enterprising activity came to being a large percentage of the author’s advance on one of his books. It might even have cost more than that. Advances aren’t usually very big.
Unfortunately for the author, no one was buying any of the merch, and no one was getting pictures taken. Even more unfortunately for the author, the cover artist for the book series was at the same convention, and took a rather dim view of the author appropriating the cover art, putting it on coffee mugs, and selling it without permission — and without the artist getting a cut. Apparently the artist, being a decent sort, and also understanding that no one in his or her right mind would buy the stuff anyway, simply took the author over to one side and told him to knock it off. The artist would have been in his rights to take all sorts of legal action, but doubtless understood that the cost and hassle of legal action were likely to be much higher than what he could hope to win in a settlement.
Clear enough? I hope so, because that’s all there is.
All best,
