Sunday Mailbag: Copyrights on Commissions?

Q: If you are doing a commission like your James Bond commission, which copyrights does your customer get? Does the customer, who gets the James Bond original also get all copyrights? In this case he could use your art for instance as a book cover or scan it and use it on his homepage etc.. And what about the original MAD art you are also selling: I think you wrote on your blog, that MAD has all copyrights but does not bother about the originals so you can sell them. But doesn’t the owner of the original art also get all copyrights?

A: The answers to your questions above are not debatable: None, no and no.

This is an all too commonly misunderstood issue with respect to buying original art and owning the copyright to that original art. Those are two completely different animals, and buying one does not get you the other.

An original piece of art is just that, one original piece of art. When you buy a piece of original art you are only buying the actual, physical piece of art. You now own the paper, board or canvas it’s created on and the paint, ink, pencil or whatever medium that was applied to that surface. You have the right to decide who gets to look at it, where you hang it up (if at all) and to sell it to another party at any time you want. That self-contained piece of art now belongs to you, but that’s all you own.

Copyright is the right to make copies of a piece of art (or any intellectual property), and is a separate thing from the original. Like original art, copyright is something that can be sold or granted to an individual or organization. Unlike selling an original, copyrights can be sold to many people on any manner of limited basis. You can sell the rights to reproduce a piece of art on T-Shirts or apparel to one company, the rights to make posters of it to another, and the rights to use it as a magazine cover to another. You can limit the length of time someone has the copyrights to something, or if they make a product from it how many pieces of that product is allowed. You can limit the areas of the world the copyrights apply to. You can also sell full rights to a work away forever, so you have no rights left to it at all. You can do all those things and still keep or sell to another party the original artwork the rights apply to.

Many people get confused by this. After all, if they bought an original, they should be able to make copies of it, or put it on a T-shirt, or use it as a book cover like in your example, right? They cannot, not legally. The copyrights to any creative work is automatically owned by the creator of that work, and cannot be claimed by another without that creator having legally signed away those rights. Copyright is protected automatically with the creation of a work. It does not require registration (but can benefit from official registration in terms of monetary damages if infringed upon) nor a legal document saying it exists. So, when someone buys an original piece of art they don’t get the copyrights to it without a legal agreement granting those copyrights, even though they own the original. In fact, despite having sold the original, the artist STILL OWNS the copyrights and can, in fact, still sell those copyrights to another party. You could, in theory, buy an original painting from an artist only to later find that same image plastered on billboards all over the country as an ad for Rolaids or something, and you could do nothing about it.

Live caricaturists run into this sort of thing all the time. They sometimes find themselves the cheap source of freelance illustration by cheapskates who are at best ignorant or at worst nefarious thieves. Realtors are the worst offenders, as this story will attest. I hated to draw realtors when their theme request was to be standing next to a house holding a “SOLD” sign. You knew that was going to be used on ads forever without proper compensation to the artist. When faced with that situation I would sabotage the drawing’s commercial value by either making the house they were standing by so dilapidated they looked like a crook having sold it, or put a button that said “Trust Me” under a very conniving-looking, grinning face. During the drawing I’d educate them on the difference between original art and copyright. That usually worked. Some printing places really protect themselves against this kind of thing. At least two or three times a year I will get a call from someone who bought a caricature at one of my theme park operations to tell me they went to make personal copies at a copy shop and were refused because they needed permission from the copyright owner. I have a standard form I fax over granting personal copy permission for them. Technically the individual artist that drew it owns the copyright, but I get a verbal ok from them first or have them sign the release. It’s a hassle, but it is protecting the rights of the creator and for that a little hassle is not a problem.

The flip side to that also sometimes occurs. I’ll do a job for some company’s ad or product, and then they are surprised when they find out the original art is not part of the copyright deal. Usually this only happens with smaller clients, but sometimes with bigger ones as well. The first year I did the team poster for the Minnesota Twins, which was a physical watercolor painting, they were surprised when I asked when I’d be getting the original back from the color separator. They assumed the original was theirs to keep. We eventually agreed on a price for the original and in subsequent years I include the original as part of the deal, but for a higher overall fee.

As regards MAD, all the work I do for them is work-for-hire, so they own the copyrights to everything and, technically, the original art as well. They let their artists keep and sell the originals, but MAD retains the copyrights to all that work. So, anyone buying one of my MAD pages owns the original, but not the copyrights. The difference with that being if the owners of one of my MAD originals decided to ignore copyright law and sell prints of the art, for example, they would not be infringing on my copyright, but the copyrights of TIME WARNER INC. I understand they have a few lawyers on retainer, so that would not be a very wise thing to do.

Thanks to Dominik Zeillinger¬¨‚Ć for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!