by Maria Brophy
ONLINE INFRINGEMENT
There are people out there who will steal your images and sell them without your permission through third party websites. If this happens to you, don’t despair. A DMCA take down notice will stop most infringers. DMCA stands for “The Digital Millennium Copyright Act” and was enacted to protect intellectual property owners from online infringement.
We regularly check on Amazon.com for Drew Brophy knock offs. It’s amazing that all I have to do is a search of “Drew Brophy” and the knock offs will actually have his name in the description! I have shut down many people selling Drew’s stolen art printed on t-shirts and cell phone covers.
If you find your work has been stolen and is being sold on eBay, Etsy.com, Amazon, or any other third party site, you’ll need to file a DMCA take down notice.
It’s easier than it sounds. All you have to do is go to the site and make a claim that someone infringed on your copyrights. They will put a stop to the infringer, and often will cancel their account.
Follow these steps:
Take screen shots of the infringement so you can keep a record of it
Submit a DMCA takedown notice, either through the website or by letter.
Check the website where the infringing artwork is being displayed and see if they have a form that you can fill out to report copyright infringement. Many sites do, such as Etsy and Amazon. If so, complete their form and follow their instructions.
If the website does not have a form to fill out, then you’ll have to send a DMCA Take Down Letter to the hosting company of the website. Some websites are self-hosting, like Facebook. In that case, you would send the letter directly to the website. Other websites are not self-hosting, and so you will have to find out who hosts the website. To do this, you can go to a website such as www.domainsigma.com and do a search to find out who the hosting company is.
Below is a sample letter you can use as a guide. Be sure to include all of your contact information and the information shown in the letter, and send it signed, either with a wet signature or digital signature, as these items are required.
Sample DMCA Take Down Letter:
To Whom it May Concern,
My name is __________ , owner of _____________ (company Name here). A website that your company hosts is infringing on copyrights that are owned by me.
I am the copyright owner of the artwork being infringed at this URL: __________________________.
A screenshot of the artwork being infringed is attached.
This letter is official notification under Section 512 (c) of the Digital Millennium Copyright Act (“DMCA”), and I am asking for the removal of the aforementioned infringing material from your servers.
I am asking that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.
Please also be advised that law requires you, as a service provider, to quickly remove or disable access to the infringing materials upon receiving this notice. Noncompliance may result in a loss of immunity for liability under the DMCA.
I have good faith belief that use of the image is not authorized by me, the copyright holder, and that my rights are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved.
Please send me a response to this notice indicating the actions you have taken to resolve this matter.
Thank you for your assistance. Sincerely,
ARTIST NAME
Address
City, State Zip
Phone
E-mail
Keep in mind, laws and their details change often. I am not an attorney, and the information in this section is not meant to give you legal advice. I’m simply sharing what has worked for me. For legal assistance, please contact an attorney in your region that specializes in working with artists. You can also find more up to date information online on DMCA take down notices, as this is a printed book and will not reflect changes in the law that happen after it’s printed.
29
READ THE FINE PRINT
When working with corporate clients, galleries or small businesses, you’ll often have to put your agreement in writing. Many times, your client will provide you with the written agreement. In the following sections, I’ll address several issues to be aware of.
UNDERSTAND AND AGREE WITH IT
BEFORE YOU SIGN
Beware of signing any agreement without reading it or understanding it first. You might get locked into something that you either don’t want to be locked into, or you might be giving far more than you intended to.
Never sign an agreement that has inaccurate information. If a written agreement does not reflect that which you verbally agreed to, make sure your client corrects it before you sign it. I don’t care how great your relationship is with a client, the only thing that matters when things go wrong, is what’s written down. Sometimes the person you had a great relationship with leaves the company, and then all you have is what’s in writing. Sometimes the company is bought by a bigger company, and all that they go on is what’s in writing. The written agreement trumps relationships every time.
One year we had a deal with Sesame Street to have Drew create surf-related Sesame Street characters. In our meetings with them, we agreed to have Drew create the illustrations and license them for printing on apparel and other merchandise. We verbally agreed to an initial $5,000 advance payment up front and royalties on the back end. But, when they sent the contract to me, it stated that we would be paid $5,000 total. No royalties. I called my contact and said that we needed to correct it. I red-lined the contract and made all the corrections. She kept calling, wanting to know why Drew didn’t start on the sketches yet. I told her we needed the contract and advance first, and urged her to hurry and send the corrections. Then she asked me to do the unthinkable; sign the contract that’s wrong, and we will correct it later. This is something that you should never, ever do. Especially when dealing with a large company. The only thing that matters is the language in the contract, not what they told you. When they refused to correct the contract, the deal died. We were disappointed, but sometimes you just can’t work things out.
BEWARE OF SNEAKY TRANSFER
OF RIGHTS LANGUAGE
Beware of sneaky language that can trick you into losing all rights to your artwork. Some companies will ask you to sign an agreement, and hidden in the language is wording that transfers all copyright ownership to them. Sometimes it’s referred to as “work for hire” and other times it’s phrased as “transfer of all rights” or “copyright transfer” or “complete buyout” or some another indication of all rights transferred from the artist to the client.
A “transfer of rights” is different from a “grant of rights”. In a transfer, your client becomes the new owner of the artwork and can do anything they want with it.
A temporary grant of rights is a form of licensing. It’s a temporary right for the client to use the art and is usually defined in specifics, such as how long the company can use the image (2 years), and for what usage (t-shirts) and where (the U.S. and its territories).
Once you transfer your copyright ownership, you cannot get it back, even if the company goes out of business. When you no longer own your copyrights, you no longer have permission to use the artwork in any way whatsoever, not even for a portfolio or that coffee table book you plan to print in the future.
Many years ago Drew and I experienced the most blatant example ever of a company trying to trick us into giving Drew’s art away for a campaign we didn’t agree to.
We got a call from one of the largest beer companies in the United States. They asked Drew to paint a surfboard for a give-away they were doing at a surfing event. We were very excited to work with such a large company. They offered $2,500 for Drew
to paint their surfboard. We agreed right away.
Then, I received an email from their legal department with a message “attached is a contract, please sign it so we can cut you a check.”
I read the contract, and basically it said that the painting that Drew was doing on the surfboard would be considered a “work for hire,” which is code for “transferring all copyrights” to the client.
This “work for hire” language was a red flag. Why would they need to own the copyrights? All Drew was doing was painting a surfboard that they planned to give away at a surfing event, or so they claimed.
We set up a conference call with their marketing guy, someone from their legal department, a person from their events department, and myself and Drew. Drew was on our office land-line phone sitting in his back room office, while I was on the other land-line phone at my desk in the front room office. And the call went like this:
Me: “Why do you want to own the artwork? All you’re doing is giving the painting away to a winner.”
Them: “Oh, we also plan to duplicate the art onto fifty surfboards for charity give-aways.”
Me: “That’s okay, we will agree to that. I’ll write up an agreement that allows for fifty duplicate surfboards. No problem.”
Them: “Well.... we also want to use it for in-store point of purchase displays and merchandise for a National marketing campaign.”
Now we were talking about an entirely different deal. One little surfboard painting versus an entire advertising, marketing and in-store POP campaign. This type of deal is what can earn you in the six figures easily.
Me: “So, that’s an entire marketing campaign using the art. We will agree to that, but, the price will go up quite a bit. Licensing art for such a campaign is an entirely different deal than just painting a surfboard.”
Them: “We can’t pay more. We don’t have a budget.”
Then we all heard a loud CLICK on the phone. One of them asked “What was that?”
I said “Drew just hung up.”
As you probably guessed, this deal did not go through. About six months later, I called the marketing guy and asked how their campaign went. He said it was a disaster; the artist they ended up hiring to do it didn’t understand how to create art for what they needed, and so it didn’t translate to advertising. This is a common story, and one I hear again and again.
The moral of this story is this: Always read the fine print when presented with a contract or legal agreement. Trust your instincts, and if something doesn’t seem right, it probably isn’t. Ask a lot of questions. Make sure you understand it completely and agree to it entirely, before signing it.
In the case of the beer company, they told me one thing but they secretly planned to do another. The contract they sent me was all-telling. The red flag was a warning.
Now, you might be wondering, after reading these two stories of lost deals, if you should stick to your guns on keeping your copyrights and being paid properly. If not, you’ll lose deals, right? Well, these stories are not the norm. They are cautionary tales. For every deal that goes bad, we have many good ones that run smoothly.
30
PUT IT IN WRITING
“People still think of me as a cartoonist,
but the only thing I lift a pen or pencil for these
days is to sign a contract, a check, or an autograph.”
—Walt Disney
There are two mistakes that artists make when it comes to the business end of selling their art:
They aren’t putting their agreements with clients in writing, and
They sign onerous agreements that can harm their career and earning potential
In this chapter, I will address each one of those issues.
Written agreements seem like extra work, and for an artist, just creating the art is time-consuming enough. But written agreements are important. They help to avoid misunderstandings by clarifying each person’s responsibility.
Clarifying is necessary to keep a good relationship with your clients and the friends that you do business with. I use written agreements with everyone, friends included.
Not all agreements have to be in a formal document. Writing up your agreement in a friendly email works for most things.
Three compelling reasons to put your agreements in writing are:
To ensure that both parties are agreeing to the same thing. Verbal agreement is where misunderstandings and assumptions happen. Written words provide clarity. During the process of drawing up the agreement, you will work out details with your client that you otherwise may not consider.
To hold each party accountable for what they’ve agreed to. Over time, you’ll forget exactly what you’ve agreed to. A written agreement will refresh your memory.
To cover your butt. This comes in handy if ever accused of not holding up your end of a deal. You can refer to the agreement and point out that you are. Or you might read it and say, “oh yeah, you’re right, I agreed to that!”
When we did a deal with Seven Films to create Drew’s instructional DVD titled Paint Pen Techniques with Drew Brophy, I asked one of our partners if he wanted to draw up the contract on his end. He said “We don’t need a contract. We’re good friends.” To which I replied “Yes, and if we want to remain friends, we’ll need a contract!”
It’s a good thing I insisted, because we later discovered inconsistencies in our thinking. I drew up the contract myself, thanks to a very good template that I found online. I made changes to it and outlined the various points that we had all agreed to in our meetings.
When I presented the contract to our partners for review, they shook their heads no. “What?” I asked, confused. They pointed out a few items that they hadn’t agreed to. I had misunderstood certain details from our conversations. We discussed it then and there, came to an understanding, and I revised the contract accordingly.
Had we not had a written contract, and that issue came up later, we would have been on opposite ends, arguing about it, and it could have been a problem, which probably would have ended up in losing the friendship as well as the business deal.
For artists, it’s especially important to have a written agreement for the following situations:
Licensing your artwork for products or advertising campaigns
Consignment of your work through a gallery, charity or retail store
An event where the artist is hired to attend/perform at
Any form of partnership where there is a royalty or shared profit
Representation by an agent
Animation of your art or use of it in movie or TV productions
Any partnership of any kind
For the larger deals, I recommend finding an attorney that specializes in the art business. Don’t go to a general attorney, as they won’t be knowledgeable in the art world. Don’t hesitate to pay an attorney to help you with the big stuff; consider it an investment in your business. The smartest business minds know that you have to pay professionals, such as attorneys, to help your business remain healthy and to grow.
You don’t have to hire an attorney for everything. For the simpler, smaller deals, you can find licensing and consignment agreement templates online. There are many contracts which you can download and adjust according to your own situation. I also offer many templates that you can access on my website at www.mariabrophy.com.
The good news is that dealing with contracts gets easier and easier. Once you have your templates, you can reuse them over and over again, making minor adjustments to fit each deal.
WHEN A SIMPLE AGREEMENT WILL WORK (INSTEAD OF A FORMAL CONTRACT)
I have witnessed many situations where two people had a verbal agreement and all was going well, until one person thought one thing and the other thought something else. They believed they agreed to the same thing, but they didn’t. And there wasn’t a paper trail to refer back to.
Not everything needs to be in a formal contract. For most of your deals, an understanding written in
an email or proposal will be enough.
When you send your client an offer by email, and they send you an installment payment or an email agreeing with you, it is a signal of their acceptance of your offer.
A simple agreement by email or written proposal can be used for the following situations:
Commissioned artwork
Small mural project
A simple illustration or photography or graphic arts project
Order for reproduced artwork
A one-time use license of your work where there is a flat fee payment
Any simple, uncomplicated agreement between you and your client
The exception to the above list would be if there is a very large sum of money involved and complicated details or if you have much to lose if the other party doesn’t hold up their end of the deal. If you aren’t sure, get advice from an attorney.
A simple email agreement can be written in the body of the email, or you could take it a professional notch further and write it up in a separate document that is attached in your email.
The agreement can either be in the form of a proposal for the client to accept, or a write up of what you and your client already agreed to. All details should be spelled out, including the basics, such as:
Scope of work (Description or Deliverables)
Size, medium and materials used
Price and payment schedule, including installment payment requirement
Who the payment will be made out to or how it will be made
What rights are included / what is not included
A “kill fee” if applicable (i.e. kill fee of 75% is due in full within five business days, should client cancel the project.)
Projected timeline
Copyright ownership
Expectations of either party, if applicable
Next steps (i.e. “the next step is for you to show acceptance of this proposal by sending the installment payment”)
Not every project requires a contract, but every project requires a written account of what each party is responsible for, and when.
