Album Artwork-- is there a "standard" deal?

[Jackie Treehorn]

So I have a approached a painter whose work I really, really admire and asked him to create something that I can use as an album cover. We haven't talked about money yet (he's waiting to hear my music), and I'm not sure what would be considered a fair price. This person makes a living through his art, though he is not famous or rich by any stretch. He's never been asked to do a CD before, so this is a "first" for him too.

Once I have the image, I'd like to use it without restriction (which might eventually include advertisements, posters, t-shirts, website). Right now my project is as "independent" as it gets (i.e. paying for this out of my pocket), so what I imagined would be fair would be to offer him a certain amount of money up front, then maybe offer him something more if the CD cells a certain number of units.

I'd like to hear from everyone what their experiences are in this area. Do graphic/visual artists ever get "points?" Would love if a lawyer or intellectual property expert could chime in.

Moderators, I know this is slightly off-topic, but I hope you'll let it stay on this (the busiest) board. It might even be a welcome break from discussing mic pres! Thanks to all in advance.

[travisbrown]

What the artist charges you is based on the market value of the artist. Getting David LaChappelle to shoot a cover for will be a lot more than your local wedding photog. doing a side gig. There is no standard rate for visual artists. For contract graphic artists, who charge by the hour, a middle of the road rate is $85 an hour.

As far as rights go, you will want to consult an IP lawyer do make sure you don't run into issues later on.

Commissioning artwork, in brief, works like this -

The artist owns his artwork. You pay him to do the work, but you don't own the artwork after. You can then license the work for various uses.

Doesn't matter if this is graphic design, web design, photography, or other media.

If you want unrestricted use, you have to negotiate it as part of a rights managed contract, or you can buy the rights outright. This means the artist retains no future claim to the work.

The fewer restrictions you want, the higher the price goes.

Your artist may have done this before and can walk you through it, but if the work is important to you, get a lawyer to negotiate it. You don't want to find out two years and 1500 t-shirts later that you have to pay unexpected royalties.

As far as offering a residual based on album sales, it generally has to be a pretty sweet deal for an artist to take a gamble like that. Generally cash in hand is better unless you have historical track record of strong sales where the artist is reasonably assured of return. It's like selling futures in your product. This gets complicated because you are essentially entering into a partnership with another party and potentially exposing your work should trouble arise with either the artist or a creditor of the artist.

[Jackie Treehorn]

Thanks for the reply.

I'm hoping to be able to buy unrestricted use of the images. It seems like more trouble than it's worth for an independent artist to keep track of how many posters have been sold, how many t-shirts, etc.

[CKK]

Only if you want to use some of his/her existing paintings, could there be a problem with royalties. If you order a painting to be made by your specifications and for your money - you should own all the rights for reproduction.

Check it out with a lawman firts though.

[Dirty Halo]

Originally Posted by travisbrown

The artist owns his artwork. You pay him to do the work, but you don't own the artwork after. You can then license the work for various uses.

Doesn't matter if this is graphic design, web design, photography, or other media.

.

Not true, actually.

Just like most creative works/industries, if it is a "work for hire," then the work that comes out of the comissioned and paid for project IS owned by the person who paid for it.

Happens ALL THE TIME in advertising, for example. A director shoots a Nike spot, Nike owns the footage, not the director. Same with most illustrators, graphic designers and so on (which is VERY different than an advertising liscening an already existing work).

Fine art can be different, but again, it's in "how" the work is created and paid for.

So, for you, it all depends on how you set it up with the artist.

-a

P.S. Context, this comes from working experience within both sides of advertising, CD cover work, its advertising and merchandise is considered the same unless otherwise specified.

[travisbrown]

Originally Posted by Dirty Halo

Not true, actually.

Just like most creative works/industries, if it is a "work for hire," then the work that comes out of the comissioned and paid for project IS owned by the person who paid for it.

Happens ALL THE TIME in advertising, for example. A director shoots a Nike spot, Nike owns the footage, not the director. Same with most illustrators, graphic designers and so on (which is VERY different than an advertising liscening an already existing work).

Fine art can be different, but again, it's in "how" the work is created and paid for.

So, for you, it all depends on how you set it up with the artist.

-a

P.S. Context, this comes from working experience within both sides of advertising, CD cover work, its advertising and merchandise is considered the same unless otherwise specified.

This is true. I don't think we are disagreeing, but you did pick up that I was being brief and general in my answer. This is why I said rights need to be negotiated and signed over. It is not defacto ownership; until it is signed over or unless priorly negotiated, the artist retains the creative rights. That's why you have signoff - signoff can be forward-looking, so Nike will have the director sign a "all work done is property of Nike" clause, but it is merely preemptive. I've signed lots of these with clients.

In my real life, I'm a partner in a creative firm. When we do work for a client, they pay a lot more if they want to have full rights to whatever we create. We do an ad or a logo or video production, we give them rendered files, but we keep the source files and retain all rights against "mutilation", unless the the client wants to pay more to release all rights. We are always "for-hire"; however, there are different degrees of what we are hired to do. Comes down to what you want to pay for.

It is very difficult and a detailed process to acquire all rights to any artistic work. Most of the time it goes on a Gentleman's Agreement.

To wit, according to the Berne Convention, Article 6bis

"(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."

[travisbrown]

I think it's the same with recording. You don't own the recording until the engineer releases it. The agreement may be tacit, but I believe that's technically how it works. I have a friend who fired his engineer during a project because of personality differences. He thought the multitracks were his, but he'd never negotiated the multitracks as part of the deal and consequently never "owned" them. The engineer would only accept money to finish and mix the project - despite my friend's attempts to pay him out. The engineer was under no obligation to turn over all work done. It was a rude lesson. Perhaps someone else could clarify.

Work for hire has to be identified as such in writing to be so - otherwise a case can be made for joint-authorship. It's all the same rules whether rights are signed off before or after, but work for hire implies automatic transfer - the artist is only creator by proxy.

[travisbrown]

Oh, you asked if there is a standard deal. Maybe not for price, but any half-decent IP lawyer, esp. one who works in entertainment law, will have a boilerplate contract. This makes it fairly quick and simple and inexpensive. Don't get a lawyer who is going to charge you to draw this up from scratch.

[travisbrown]

I didn't say it was standard practice, but that doesn't mean that the standard practice is legally diligent. I think that there is a general assumption of de facto ownership, when it might not be the case. This is why I said that most of the time things work on a gentleman's agreement or tacit understanding, both of which can lead to legal exposure.

There are specific mechanical and property rights for anyone capturing anything on any medium. Ownership always defaults to the creator of the recording - audio or visual. These need to be priorly identified and negotiated, as Dirty Halo pointed out with his Nike example.

For example, a wedding photographer. You pay them to shoot your wedding, but you do not own the photographs. You cannot go make copies, sell them, pass them off, without consent from the photographer. They own the film, they retain the sole right for duplication, and restrict usage. Ownership defaults to them. Of course they'd likely be happy to sell you the negatives, but it's not included in the price for simply shooting the wedding, even though the work is commissioned.

The person making the recording *should* at the least maintain initial mechanical rights unless priorly negotiated or specifically commissioned, as far as I can tell. I bet every record label that commissions a studio to record specifically details transfer of ownership of the recording medium. It's simply legal diligence.

So it's not so clear, despite "standard" practice. In Australia, for example, for a performer or other party to retain ownership of a recording, they must own the medium upon which it is recorded and/or commission the recording. Recording ownership defaults to the maker of the recording or a commissioner thereof.

So unless you own the tape or hard disks, don't assume the recordings are yours.

And who owns a mix is another issue. Again, creative ownership of the mix defaults to the mix engineer, likely as an artistic compilation under US copyright law, and probably similar to a musical arrangement, again, unless specified as work for hire. And again, a mix engineer could well argue the same the same rights as a visual artist against mutilation. An artist's creator rights are inalienable.

17USC Sec. 101. Definitions

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

[...]

and regarding work for hire (emphasis mine)

A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....