Copyright and Commissioned Art

What to know before you take your next commission.

For many artists, commissioned works is the lifeblood of their business. It’s not only sometimes their biggest paydays, but it’s often a more reliable source of income in an often unreliable business.

However, commissioned pieces can easily create strains between the buyer and the artist that’s making the work. Both sides are often very confused as to what exactly is being sold and what they can do with the work.

The truth is that commissioned art arrangements come in a very wide variety from informal requests made by private collectors that just want something to hang on a wall to much more formal ones from commercial clients with very specific uses in mind. All of these arrangements have different consequences for artist and commissioner alike and need to be understood separately.

After all, whether you’re the buyer or the artists, it’s important to know what your rights are and what exactly is being sold. It might be very different from what you think.

Copyright, Work-for-Hire and Commissioned Works

One of the most common misconceptions that buyers have when commissioning a work is that, since they commissioned the work, that they own the copyright to it. In the United States and the EU, that is usually not the case.

Copyright, by default, goes to the original creator of a particular work. If you write a poem, create a drawing or record a song, you are the owner of its copyright. However, there is one broad exception to that rule in the United StatesL Works-made-for-hire.

There are two ways that a work can be considered a work-for-hire. The first is for it to be performed as part of a person’s employment and the other is it be created under a work-for-hire agreement.

Though it delves more into employment than copyright law, hiring an artist to create a painting (or any other one-off work) doesn’t usually make them an employee. As such, the copyright doesn’t automatically flow to the bury, as it would with a traditional employer/employee relationship.

That leaves a work-for-hire agreement but that often doesn’t apply in cases of commissioned art. First off, work-made-for-hire requires a written agreement be signed by both parties . However, even with that agreement, it may still not apply as it only applies to work commissioned for these uses:

  1. As a contribution to a collective work
  2. As a part of a motion picture or other audiovisual work
  3. As a translation
  4. As a supplementary work
  5. As a compilation
  6. As an instructional text,
  7. As a test,
  8. As answer material for a test
  9. As an atlas

While some of these conditions can certainly apply to a commissioned piece of artwork, many commissioned pieces don’t fit under one of these nine categories. As such, this leaves only one other tool: A copyright transfer.

A copyright, ultimately, is like any other piece of property and it can be bought, sold, rented, leased, etc. just like any other thing you own. However, a copyright transfer also requires a written agreement as well and artists are generally reluctant to provide these transfers as they allow the buyer to do almost whatever they want with the work.

While there may be certain rights that a buyer will have under an implied license. The general rule of thumb is, if you don’t have a written agreement and it was not done by a true employee, the copyright remains with the artist and they have the rights to display, copy, license and even sell other copies of the work they create.

In short, without a written agreement, the buyer obtains the physical work but not the copyrights that back it. While that seems straightforward, it can still cause a great deal of trouble for artists and buyers alike.

Where This Can Cause Trouble

To this end, there are are two common types of commissioned works for artists: Individuals commissioning works for their homes, offices or other personal use, and commercial entities commissioning works for various specific uses.

In private cases, it’s rare for the artist to sign any kind of agreement at all and it’s also rare for the buyer to have any plans for the work that the artist might object to. Other than posting it to social media (hopefully with attribution), it’s unlikely that the work will be used in any public or commercial way.

The more common grievances come from what the artist does. Artists, since they typically hold the copyright in theses cases, are free to post the work online, make prints of it for sale and even create a new work based on the original. For a buyer that paid what they saw as extra money for a unique work, this can seem like a bit of a slap in the face.

In commercial cases, such entities usually work with agreements and the issues stem from either the artist not understanding the rights that they signed away or the buyer overstepping the bounds of their license, as with a recent case involving Clorox and their advertising agency.

However, all of these disagreements come from one things: One side misunderstanding what the agreement actually permits. That’s why the simplest way to prevent these problems isn’t for everyone to suddenly become wise about the ins and outs of copyright law, but to put their desires and intents in writing and for both sides to read that agreement carefully.

The Importance of a Contract

Many times, commissioning a new piece is a very informal affair. A buyer approaches an artist, often online, and pays them X amount of dollars to create a new work for them based on certain specifications.

However, if a disagreement arises between the two parties, the courts have to look at the intent both of them had when they entered into the agreement and decide what is fair. This is known as an implied license.

For example, if you commission a painting to display on your business, you have a clear implied license to publicly display it within those walls. But what about on your website as part of a photograph? What about using it in promotional material? What happens if the painting becomes synonymous with your brand?

Without a clear contract, these issues can be unclear and the court can be left to sort it out looking at the various communications the two sides had in the run up to the deal.

This is where a real contract steps in. A real agreement eliminates those ambiguities and does two simple things:

  1. Provides clarity between the buyer and seller, reducing the chances of a misunderstanding happen.
  2. Giving the courts (and the parties) a clear statement of intent should a dispute arise.

This is why such contracts are a good idea before taking on any commissioned works. It lets both parties know exactly what their rights and expectations are in advance and protects everyone involved when done well.

Ideally, you should have a lawyer draft a contract that you can use with your clients (or at lest have one vet and approve of a stock one you plan on relying upon). Such a service is typically very easy to get at a reasonable price and can save significant headaches down the road.

It’s an area where an ounce of prevention is worth far more than a pound of cure down the road.

Bottom Line

Commissioned works are often a great deal for an artist and it’s easy to see why they’re tempted to forgo contracts in a bid to make the sale go smoothly and quickly. After all, no one wants to have a disagreement over copyright or licensing be the reason a sale falls through.

However, it’s better for a sale to fall through than for it to become a lawsuit later. Though, in the absence of an agreement the artist has the advantage and almost always retains the copyright, a legal headache that can be avoided is time, money and energy saved.

Also, it isn’t just about preventing lawsuits. Misunderstandings can result in bitter feelings, negative reviews and a harmed reputation. In 2019, a lawsuit is just one way a disgruntled customer can harm you.

Though laying out expectations in a formal contract may seem crass and formal for what is so often an informal transaction, it clearly beats the alternatives.

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