Thursday, November 3, 2011

The importance of registering images for copyright...but when and how?

How important is it to register images while they are still being formed into collections and manipulated into a variety of product designs and formats?  This question came up during a discussion in one of my groups and it seemed like a great topic to explore and repost.

While in theory, it is good practice to register art before sending it to anyone to review, I find that to be virtually impossible with so much of these “hurry-up-we-need-it-tomorrow” requests being made more regularly than not. I race to get something completed and am then sent spinning in another direction by another similar request. The only way to get things registered in a hurry as an unpublished work would be then to just throw everything together in a group and call it a "collection".

But is that truly going to protect you against a submission being used as "inspiration", derivative or a downright ripoff?
When an artist registers groups of work as collections, it is disadvantageous to just glob a bunch of unrelated artwork together to register an unpublished “collection”….especially if the next registration contains additional related images or derivatives that are part of a collection. For example, you don’t want to register Easter rabbits, snowmen and Seashore/Nautical in one registration as a “collection” of unpublished work. If you ever have to use that registration in court, a judge may not see that registration as a true collection and damage may be significantly reduced.

So if I’m just starting to work on a snowman collection, I will wait until I get the collection into a more complete state before finalizing the online registration pages. I may be sending individual snowmen to one manufacturer for mugs, ornaments or floormats first but I try to wait until the grouping at least looks like a cohesive collection. Otherwise, I’ll be sending off designs as soon as I get them completed....then using the same basic images in surface design format or as giftbags and have to include those images in another registration just a couple weeks or a month later. And, since EVERYTHING is always “hurry up and wait”, if 6-8 weeks later the first company I send off to asks for changes or decides they want snowmen with birds… now I have to create the birds, add them to the snowmen and do yet another registration. That’s impossible to keep track of. Or, at least it is for me.

However, one suggestion is to always include preliminary sketches and ALL versions/variations/derivatives of your work, from individual images/icons to complex scenes and surface design....and include them with your unpublished collection when you register. That “trail” shows that the designs originate with the creator instead of just kind of “appearing” as finished images on a product. I can almost guarantee that anyone who steals art (or uses it as obvious inspiration) isn’t going to do that prior to their rush to get product manufactured and shipped....especially since they won't have created  early sketches and concepts.  And, even if the artist had initially sent them sketches, they won’t think of it PLUS they won’t want to spend the $ registering each published image once it is on a product and shipped to be sold…IF they even know (or bother) to register the designs at all.

The best way to ensure your work is being submitted to reliable sources is to request that party sign a non-disclosure or confidentiality agreement.  Or, if that seems too off-putting, make sure you at least always follow up all verbal conversations with a written summary that is sent to the other party via email, fax or written letter.  Then, in case of a problem later on, you will have a time stamp on your submission along with the statement that the work you are submitting is your property and is being submitted for consideration in good faith. 

Disclaimer: This information is not intended to be considered legal advice.  Consult with an intellectual properties (IP) attorney for more information on copyright and/or help or if you discover an infringement.

Thursday, August 11, 2011

Protecting art when submitting to companies

A recent question was asked on one of my online groups regading how an artist can protect themselves from companies that request that all art being submitted not be preveiously registered with the US Copyright office.

From my own experience, there's only one way to protect yourself. Don't submit to to any company that would make such a request...and make sure you register your art before it is displayed on websites,  marketing materials or submitted digitally to any company--unless it is with a company that you know respects your rights as copyright owner. 

By law, art is copyrighted automatically by the creator the minute it is drawn on paper. Registering it with the U.S. Copyright office creates a timeline that can be proven if the rights are ever contested. And since those rights CAN still be transferred to another party after the formal registration is made, the terms mentioned by the person who posted this concern were uneccesary and nreasonable. In my opinion, it sounds like the company  making that request wants artists to submit art for them to either purchase outright (so they own all rights and can register the art under their own name) or else for them to use as "inspiration"...and they don't want a formal registration to hinder them from their goal.

Understand, however, if their goal is to own ALL rights and register copyright under their name, they would also own the right to create derivatives of that work AND to license that work to other companies. If YOUR goal, however, is to license your art to multiple companies and/or create a signature style and brand, it is probably not in your best interest submit anything to this company. However, if an artist has already sent this type of company any samples to pique their interest, make sure to save a copy of the cover letter and list of the images sent or viewed, ALL correspondence, documentation of phone conversations, meeting, or anything else that will prove a timeline in case it becomes necessary to prove ownership in a court of law at a future date.

Now, if a company that specifically requests art not be registered with the US Copyright Office contacted YOU and requested your submissions, ask them to first sign a nondisclsure agreement and see what their reaction is. My guess is they will refuse. However, if they do sign it, that will help protect your rights if you ever discover they have used your art without your permission later on.  And, a company that is willing to sign a nondisclosure agreement usually does not have undesireable motives to begin with.

Unfortunately, it is only too common in this tough economy for artists to submit art to companies who are basically "fishing" for ideas and/or inspiration so their inhouse (or other) design staff can get instant info on trends, color palettes or styles by offering submission "contests".  Unless you already have a signed nondisclosure or an existing working relationship, this is never in the interest of artists who are creating a unique brand and look and who spend many hours, weeks and sometimes years creating a large portfolio of art collections for licensing.  Artists can even  find themselves in a position of looking like they copied someone else's style or look if art being offered for consideration isn't copyright registered prior to or concurrently with those submissions. 

In the case of the artist who initially asked the question, by registering her art PRIOR to submitting it to this company AND keeping copies of all submissions, communication, etc, she would have the leverage to file a suit if she ever discovered that this company had indeed taken her art and used it without her permission.  Even if you deal with a company that may be totally above board and have integrity, you cannot control the actions of third parties or employees who may leave that company.   So the basic mantra in protecting one's copyright is to (1) know who you are submitting to, (2) register your art regularly and (3) save all correspondence. 

Wednesday, May 18, 2011

Licensing Art: Is it the Right Thing for You?

That is a difficult question to answer without first knowing exactly what an artist will need to do. So, what exactly IS involved in licensing art?

The answer depends on which side of the licensing spectrum you are on. For the artist or copyright owner, licensing involves many skills. If you are thinking the most important skill is being a fantastic artist, you’re only partially correct. While creativity and artistic ability are important, licensing art also requires other equally demanding skills, including all of the following:

Patience. Waiting. Lots of hard work. A thick skin and an ego that is not easily bruised. Endurance. Hope. Another source of income while you are waiting and creating a large portfolio…PLUS enough money to register copyright and perform all the necessary legal and practical business functions. Some of these functions may include skills an artist will not have and will need to hire other people to perform,such as preparing taxes, forming a corporation, creating and maintaining a website, exhibiting at trade shows, making presentations to potential Licensors, negotiating and creating contracts or writing promotional material and other forms of business communication. Creating a large portfolio of art in formats suitable for a wide variety of manufacturing production specifications, trend-on and trend-forward color palettes, subject matter that is being sought at the correct time and with a “look” that will appeal to the end user—the consumer. Filling a specific and real need in the marketplace. Being willing to work long hours—including weekends, evenings and holidays. And, did I mention….patience?

Licensing art is hard work with a great deal of risk. Licensing also involves a lot more than being creative and creating art. Licensing art is a business with all kinds of time-consuming (and potentially unpleasant) business activities like bookkeeping, marketing, and contracts. That’s the reality of what is involved in licensing. And it involves much more than creating art.

If you are now more discouraged than intrigued, then licensing probably isn’t for you. However, if you are intrigued by the potential of creating an income stream and aren’t daunted by high learning curves, putting in mega hours, and creating work “on-spec” with no certainty it will ever be licensed, then continue reading…and learning.

Licensing seems complicated because it is! Most artists and manufacturers lack the understanding of how licensing really works when done properly. But when both parties DO understand and work together fairly, licensing art is an incredible and satisfying way for both to maximize the potential of a single artistic effort.

In licensing art, the artist, creator or owner of a piece of art (or an entire collection) allows another party to use their art for a specific purpose--while still maintaining ownership to the rest of the rights. This not only allows the artist the ability to license a single image or collection to multiple parties, for multiple purposes, licensing art can also create a revenue stream from each artistic effort. Instead of cranking out a dozen paintings and receiving a single fee for each painting sold, the artist can instead generate a dozen royalty arrangements or flat fees from a single painting. In addition to maximizing effort--especially if each painting takes a tremendous amount of time to create--licensing also allows for quick and effective market recognition to grow a brand. Familiar examples include Thomas Kinkade and Mary Engelbreit. Their work is highly recognizable and in great demand. And while each of these artists generates an impressive and steady stream of revenue through multiple licensing deals, they both continue to develop additional art which, in turn, has the potential to generate additional revenue in a seemingly endless pattern.

And that is the goal. Licensing art creates a steady income stream based on efforts done months or even years prior to receiving royalty checks. And, because the artist does not give up his rights of ownership, licensing also allows the artist the ability to continue seeking new avenues of income through a single piece of art.

My next post will explore what artists need to know when creating portfolios for licensing.

Meanwhile, Surtex 2011 is still underway. If you are attending, my licensing agent Julie Ager (Artistic Designs Group) will be representing me at Surtex in booths 603 & 605. If you are unable to attend, please visit  to preview examples of my art for licensing.

Wednesday, May 11, 2011

A Look at Licensing

    What initially began as an extension of my love for rubber stamping eventually turned into licensing my illustrations on a wide variety of retail products in multiple markets. My art has appeared on products throughout the craft/hobby industry including rubber stamps, rub-on transfers, scrapbook products and needlearts kits to products in other markets—gift bags, gift wrap, partygoods, veterinary scrubs, children’s coloring products and much, much more. Most of these products have been sold in large national chains such as Michaels, Joanns, PETCO, PetSmart, Hobby Lobby, Archivers and all partygoods stores, as well as through various independent retail channels.

    Many artists and designers are interested in learning about licensing but don’t know where to start. I’ve been licensing my art for about 15 years and I’m still learning. Licensing is a straightforward concept but it is actually very complex. Here’s a short summary of what Art Licensing is all about….

    When an individual creates a piece of art—whether a simple line drawing or a complex painting—that individual automatically owns that art by law. This means that the moment an image is in tangible form, the creator owns what is called the “copyright” to that image. The exception to this rule is if that individual is an employee or has been hired as a temporary employee/contract worker. In that case, the employer owns the art. But, for the sake of explanation to artists and designers that are reading this blog, this summary will refer to art being owned by the individual who created it.

    The primary different in licensing art versus selling art outright is that the artist maintains copyright ownership. But…what does that actually mean? And, how would licensing be an advantage for the artist?

    Licensing art is like renting an apartment or other property. In property rental there is a landlord who owns the property and a person or group that pays for the right to occupy that property. What the renter is allowed to do with that property depends on the type of property is being rented—a business space, single family home, garage or an apartment within an entire building with multiple apartments—as well as the terms agreed on and signed in a mutual rental contract. Both landlord and renter must also follow the law. But, throughout the rental period, one thing remains the same. The landlord OWNS the property and the renter does not. The landlord can change, alter, or sell that property as long as those actions do not adversely affect the renter or prevent the renter from using the rented property. The landlord can also choose to rent additional properties (such as additional apartments within the same building) to other renters.

    In licensing, there is also a property owner (Licensor) and an individual or entity (Licensee) that “rents” certain rights for that property. The copyright owner (Licensor) controls what is done with the art, how it is done (quality control), who can use the art, what they get to use it for, where they get to market products and for how long. The manufacturer (Licensee) will have specific rights to that property as explained in an Agreement (Licensing Contract) but can can only use that property according to that Agreement. There are also negotiations, contracts, legal terms and lawyers involved with licensing. That’s a lot to keep track of.
Licensing includes a steep learning curve for both artist and manufacturer. Manufacturers need to have a clear vision of the products they will be producing and selling. Artists can spend months, or even years, just developing a portfolio of art to license before they even have the potential of earning any income from licensing their art. Legal terms are difficult to grasp and the significance or specific terms such as “exclusive” verses “non-exclusive” and “first rights refusal” can be daunting to either party. But, when done correctly, licensing art is like a well choreographed dance—with everyone working together to create magic.
Some of the confusion about licensing lies in the perception of what licensing is about. Yes, it is about commercial use, royalties and financial gain. But, at the core, licensing is about copyright ownership.

Tomorrow’s blog will expand further on this very relevant topic.

My licensing agent Julie Ager (Artistic Designs Group) will be representing me at Surtex in booths 603 & 605.

For more information on art licensing and consultation, please contact me directly.