Before I begin, I do understand how important it is to have a written agreeement in place before beginning an animation project.
Having said that, here is my situation:
I was asked to produce a series of three cartoon animations for a small, pre-revenue software company, which I shall refer to as "SOFTCO". It was explained that SOFTCO would use these animations in a PowerPoint-style presentation of their software product, which they would be pitching to big companies like Microsoft and Google, with the hopes that one of these larger entities would license or even acquire SOFTCO and/or its software product.
The only formal contract that was presented to me to sign was a Non-Disclosure Agreement. Other than that, the only other agreement was a proposed work and payment schedule sent in via an e-mail, to which SOFTCO replied to agree to the terms of payment.
Then, six weeks into the project, when it was mostly complete, SOFTCO expressed concern when they casually mentioned that they might sell the cartoons as part of their company assets to an acquiring entity, and I reacted by stating that I would be happy to negotiate terms if that situation ever came up.
SOFTCO explained that they assumed all the work I was doing was under "Work for Hire" terms, in which I would forego all rights to the work, and they would own everything, and they could use the cartoons in any media they choosed, whether it was for private demos, public exhibition, or television.
I told them that I thought the artist owned all the work unless it was specified in writing in the beginning. I also said that I believed there were different pricing structures depending on the final use of the animations, such that if they were to be used in marketing demos, that would be one price, but if they were going to appear as advertisements on the Internet on television, that would command a higher price. And, had I known that my animations would be used for something other than their originally described purpose, I would have asked for a bonus, or an agreement that granted me royalties.
Anyway, we both wanted to resolve this potential copyright conflict before it got out of hand. SOFTCO suggested that I maintain copyrights on the artwork and music, while they would acquire copyrights on the completed animation products. This sounded okay to me, but I would need more specific topics addressed before agreeing to anything.
Specifically, I asked if I could have my name appear in credits, or as "All illustrations and artwork © Bender", and if I could use the animation in my portfolio. I also asked if it would be possible to get a bonus if the cartoons happened to become a commodity, and one of the big companies wanted to buy them.
I am still waiting to hear back from them.
I would like to know:
1. Is it standard practice (whether it is against the law or not) that, if it is not specified in a written agreement (whether "Work for Hire" or not), a client may use an animated cartoon in any way they saw fit, if it was a commissioned piece of work created by an independent contractor for a specific purpose? For example, if the client tells the creator that the cartoon is going to be used on for trade shows, may the client also use it on their web site or in a television commercial without approval from the creator?
2. Does an e-mail that states a work and payment schedule constitute a formal agreement if the client replies to approve it?
3. Is it standard practice for an artist to receive additional compensation if his artwork, which was originally used as a marketing device, becomes a commodity itself, and its usage is "upgraded" from private to public media?
"Bite my shiny metal @ss!"
>I think it is. You've been paid for you work. They own it. If SOFTCO can use it for another purpose, why wouldn't they? Would you have charged more if you knew that your animation would be used for a power point presentation and a trade show? Myself also being a New York artist I've seen my stuff in some suprising places. Times Square being my favorite. But I charged my rate, got paid. What they do with it is there business. If they liked my work so much that they use it again and again then they'll hire me back. And then I charge a higher rate.
>Not being a lawyer I'm not 100% on this, but I would say yes.
>Only if it was in a contract that the artist would. Once SOFTCO or whatever company owns the work they can do with it what they want. I have never had, nor do I ever expect, anyone to contact me to give me more money for some animation I've done in the past.
It really comes down to this: Did you have an iron clad contract before the work began to cover all bases. You did not. Did they pay you? Sounds like it. Of course you can use the work for your portfolio, but as far as extra money is concerned: Good Luck.
DXV, thank you for your advice. I am beginning to learn more about standard practices in the animation industry, since I am new to it all.
By the way, you mentioned that you have seen your work in Times Square, so perhaps it is graphic designs and not animations? I am curious if animations with voiceovers and music can be recycled by a client in the same way your clients have recycled your work in Times Square.
Specifically, the animations I have produced will feature my voice and my friend's music. We recorded it all with private demos in mind. Is it common practice for the client to sell that work to another company, who may then air it on the Internet or television? Could they just sell it to a pornographic web site and showcase it there? And I would have no say in the matter, even though it was my voice being used for a purpose I did not authorize?
Incidentally, I have not been paid yet. They are a month late with payment, while I've been working in good faith. However, I suspect their tardiness with payment is because they are now afraid that I will try to screw them on copyrights to the materials I've produced. I plan to just give them whatever they want, since they have the upper hand with my check.
Oh well, I live and learn. Slowly.
"Bite my shiny metal @ss!"
Bender, if you go to the library you can find books about the laws which pertain to freelance artists and their work-usually they are with the graphics or illustration books. A big plus is that they are in "plain english," not filthy lawyer slime-speak. You should try to keep the rights to your work if you think you could resell it, but if its not that precious I wouldn't worry about it (there are several standard conditions on selling your work, try to know them all, especially if you are freelancing). Plus, you have a resume builder, which means a lot in the art business.
I did read the Graphic Artist Guild Pricing & Ethical Guidelines, 11th Edition, which explains all the rules and laws pertaining to independent contractors in the art world. The information is very clear and useful, and seems to indicate that, if I ever had to sue my client, I would probably win.
However, I am beginning to see a great rift between what is ethical, and what is practical. If every artist and client followed the ethical guidelines listed in these books, there probably wouldn't be as many starving artists. There also would be a lot less art, because clients would probably be reluctant to hire an artist who knew too much about his rights.
Such is the case with me. If I had never brought up the fact that my cartoons belonging to me by rule of the US Copyright Act, unless I had signed a "Work for Hire" agreement, my client wouldn't be freaking out right now. And they also wouldn't be scared to send me that check.
So, while the laws and ethical guidelines are pretty clear, I've resigned to the fact that the industry is not about ethics. It's more about learning to accept the general practice of giving up more than you would like. Even if an artist is 100% right and the client is a thief, it would cost more in legal fees and time to get your check than it is worth.
I am still curious to know, if I produce an animation for a client for the purpose of closed-circuit demonstrations, using my voice and my friend's music, and the client owns that animation, is it generally accepted that they can resell it to whomever they want, or air it on whatever medium they chose? For example, can they sell it to a pornographic (or Rebublican!) web site, or use it for some campaign which I do not approve?
"Bite my shiny metal @ss!"
copyrights are rights given to creative people to protect their works. it gives you the right to authorize any uses such as copying, selling or public performances. it also gives you the right to sell rent or lend out the copyright itself.
so if you do not sign away your copyrights to the company you still own it and they must pay you what you ask to do whatever they want to use it for. if you signed an agreement to let them show it on tv for a price they could do that, but if you do not authorize a use than they cannot use it like that.
i suggest you sell the copyright and all to them for a higher price or have some sort of royalty agreement. they probably wont be comfortable with you being able to reject their requests to use it for something or being able to ask outrageous prices for a use.
if a company does use it for something else you did not authorize you can sue, but unless it is a big use i wouldn't bother. if they used it on a commercial you didn't authorize you could sue them for whatever you want but you could only expect to win it all if it is market value.
say they use it on tv for a market value of $10,000 you can file a law suit for that much and expect to win, therefore it would pay lawyer fees and you would get your money or at least some.
i assume that if you mention this they will want to buy the copyright and have some kind of royalty agreement.
No, it was animation, a graphic lookng animation but an animation nonetheless. It didn't have sound though. I don't know of any Times Square display that has sound. But I could be wrong. I don't go there very often as there are a lot (A LOT!) of tourists