I am negotiating presently with the city regarding a large "Welcome to Port Angeles" mural. They provided my with a contract to sign...but upon reading the terms of this agreement, I find that they want to keep all the "artwork" along with the finished product. The project is being paid for by Lodging Tax Monies (meaning that everyone that stays in a hotel, motel, or B&B pays a "heads and Beds" tax. This money is then used to further the art of the city, designed to specifically bring more tourism to our community.
Here is what they say: Artists final design and all other work product (including the final artwork itself) under this contract shall become the property of the City, without restriction on future use. Upon excution of this contract, and at no additional charge to the city, artist grants the city Perpetual, irrovacable right to graphically depict, copy, reproduce, use and display the final Artwork for any non-commercial purpose whatsoever.
Now...the defination of artwork according to Webster is :Illustrative work prepared for reproduction that may consist of drawings, handlettering, painting, photographs-anything that is not typeset as only text.
I am certain I don't want to relinqish ANY of my original artwork to the city. The Federal Copyright law of 1978 stipulates that the originator of artwork automatically holds the copyright to that material, and retains the right unless it is transfered to another person through some form a contractual agreement.
I have consulted two attornies regarding this and they both state that I should change the word "Artwork" to "finished Art piece" and that the city should not ask for any of my original artwork created by me to create the finished art piece.
What say you? Has anyone ever run into this before? Now...I realize you are not copyright attorneys...but I hope you can shed some light on this.
Thanks....
Jackson
-------------------- Jackson Smart Jackson's Signs Port Angeles, WA ...."The Straits of Juan De Fuca in my front yard and Olympic National Park in my backyard...
"Living on Earth is expensive...but it does include a free trip around the Sun" Posts: 1000 | From: Port Angeles, Washington | Registered: Jan 1999
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posted
I say move on and let them THINK they have their way. I did notice on your writing that the word copyright does not exist as far as they see it. I will assume that you have or will copyright legitimately the art yourself. Own the money and let them own their bullsh!t. It's time make sure the money part of the contract works in your favor. You will always have the intellectual property, period.
Just my 2 bits Jackson,...
Jack Wills
-------------------- Jack Wills Studio Design Works 1465 E.Hidalgo Circle Nye Beach / Newport, OR Posts: 2914 | From: Rocklin, CA. USA | Registered: Dec 1998
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posted
Like you said We're Not attorneys but I think that would fall under the copyright clause of "Work for Hire".. I think they put that clause in there as since they are a government and it is being paid for with public funds it would fall under public domain.
..."designed to specifically bring more tourism to our community."
"...and at no additional charge to the city, artist grants the city Perpetual, irrevocable right to graphically depict, copy, reproduce, use and display the final Artwork for any non-commercial purpose whatsoever."
It's creation is targeted SPECIFICALLY for commercial use in the form of promotion. It's pretty clear that they are looking for a full release of the design/artwork to be used in other forms of promoting the local businesses. Example may include photographing and reproducing it for brochures, local cable ads, newsprint, etc.
They want it, they pay for what they are getting. If you're going to be producing a design for those purposes, you should be paid accordingly. It's a logo...bill them for one. If they complain, point out that they, in their own definition of how they are intending to use it to promote local businesses, have justified it as such.
Also, tell them to use a spell checker next time they make a contract using the word "irrovacable". Rapid
-------------------- Ray Rheaume Rapidfire Design 543 Brushwood Road North Haverhill, NH 03774 rapidfiredesign@hotmail.com 603-787-6803
I like my paint shaken, not stirred. Posts: 5648 | From: North Haverhill, New Hampshire | Registered: Apr 2003
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posted
Has the price been agreed to yet? If not, add the rights transfer cost into it. If it has been agreed to, then tell them that the quote will need revised due to not having the terms of the contract at your disposal at the time of quoting. You can't price something without all of the information.
-------------------- Dana Blair Blair Signs Wooster, OH www.blairsigns.com
If sign makers go on strike, is there anything written on their picket signs? Posts: 835 | From: Wooster, OH, USA | Registered: Jul 1999
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posted
We've done well over 100 historical murals for cities all across the USA and Canada.
Each time I've happily signed contracts which have similar clauses and I'll continue to happily do the same each time its offered. They want the rights so they can legally promote the mural, use it in their advertising and perhaps guides to the city etc.
I assume you've charged them a good fee to design and do the wall. Let them have the rights to it to... no problem!!!!
I would add one small stipulation to the contract, however... and that is that everytime they use it in the manner they want they also have state that YOU did the mural. Let them promote the mural... but make them work for you while they do it... no charge!!!
-grampa dan
-------------------- Dan Sawatzky Imagination Corporation Yarrow, British Columbia dan@imaginationcorporation.com http://www.imaginationcorporation.com
Being a grampa is one of the the most wonderful things in the world!!! Posts: 8738 | From: Yarrow, B.C. Canada | Registered: Nov 1998
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Grampa Dan, that's the most logical solution to this problem I've seen yet. it's exactly what I was thinking as I was reading down. Of course, get paid for the project well. Give them their rights to the art (for promotional reasons or whatever they want it for) And put in the contract that your name be mentioned as being the artist.
posted
You should charge more to give certain rights away, but allowing them to promote your artwork is a good thing, but there is at least one right you should not give up. That is your rights of promotion. You should not fully give up your copyrights regarding showing off your work in a portfolio.
Another one you may also consider is not allowing them to turn that image into a product without some compensation. Say they want to turn it into a t-shirt or poster, that should have some form of compensation attached to that. You were commissioned to design and paint a mural, that is the "scope of work" anything beyond that scope of work gives the artwork more value and you should be compensated for that, otherwise allow them free access to promote the mural and artwork as they see fit (with some credit to you as the artist)
This situation is not a "WORK FOR HIRE" arrangement. "WORK FOR HIRE" is an employee/employer relationship and can sometimes be a freelance situation
-------------------- Rick Chavez Hemet, CA Posts: 1538 | From: Hemet,CA U.S.A. | Registered: Jun 2001
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posted
My initial thoughts were the same as Rays, that it would be much the same as a logo. Design it, charge accordingly, what further use would it be to you?
"Upon excution of this contract, and at no additional charge to the city, artist grants the city Perpetual, irrovacable right to graphically depict, copy, reproduce, use and display the final Artwork for any non-commercial purpose whatsoever."
The non-commercial part seems like they can't use the artwork to make money with.
I would go with what Dan says, he has a ton of experience in that area. Along those lines, I have always been impressed with the mural work in Paducah, KY. You can find all sorts of references to that work on the internet. ALL of those references will point out that artist Robert Dafford did the murals. The advertising is priceless!!!
-------------------- George Perkins Millington,TN. goatwell@bigriver.net
"I started out with nothing and still have most of it left"
posted
Please read the second paragraph if you read nothing else . . .
Why not just figure the price of the art into the entire finish price thereby selling them the art. You don't have to necessarily make it a separate line item. Obviously the city wants the art to use as indentity in brochures and other city stuff tourism etc. It's highly unlikely they will pay you royalties from any 'profit' the city makes from your art, and also highly impractical. Most brochures are free. Pins, postcards, etc, are purchased for all kinds of reasons other than the art alone, and in unumerable locations around the city.
You should be able to stipulate the right to your own personal sales of the signed art prints alone(without city info type)if you believe the tourism value is now strong enough, or will be stron enough in the future to create a profit from the art. Be sure to arrange the stipulation to include heirs should you die before the peice becomes popular.
You know, I always tell people to hang on to even my napkin art because it will be worth millions . . . when I'm dead.
posted
In many of the murals I've done the future owners saw all kinds of things which would be possible... mugs, magnets, books, postcards, and a hundred other ideas. I encouraged their dreams and sold the rights with the mural, included in the price of designing and painting it.
The very last thing I would want is to get a small royalty on the stuff produced afterwards... imagine the bookwork and haggling... if lawyers were involved only they would make any money.
The time to negotiate the price is BEFORE the mural is done. Then do the mural and get paid what you were agreed. Exceed the client's expectations in the process. Wish the people well, turn the page and move on.
Many times I even included a signed limited edition print of the artwork if my clients wished (produced at their expense) which in some cases was sold off and more than covered the cost of the mural and the print. I had no problem with them making money on my art if they got their act together. I spoke at their public gatherings and fundraisers - all in the support of the mural projects... and included in my mural fee without extra charge.
In the process I became widely known and recommended as a muralist. THAT'S how I got to do more than a hundred murals accross Canada and the USA... and that's also why I got the fee I wanted to do my murals.
In all this I became their ally and friend. I was on their team working with them to rpomote the mural(s). They happily included my name in all their publicity. On many occasions I recieved multiple commissions and was recommended to other cities and clients.
Occasionally the group I worked for did not have their act together or was not motivated to promote the murals. Then I just painted the mural, got paid and moved on.
Life's too short to worry about things done yesterday. Only keep the good stuff as fond memories.
-grampa dan
-------------------- Dan Sawatzky Imagination Corporation Yarrow, British Columbia dan@imaginationcorporation.com http://www.imaginationcorporation.com
Being a grampa is one of the the most wonderful things in the world!!! Posts: 8738 | From: Yarrow, B.C. Canada | Registered: Nov 1998
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posted
I'm not really sure I fully understand the origional concern.
I wouldn't have it any other way if it were ME purchasing a mural/logo/design. I'd want full rights to do what I wish with my new image. That's what I'm paying for. I want an image and I want to use it. What's the price in order to do so? That would also be in my decision on whether to purchase or not from that particular company.
posted
I would definitely go with Gramp's experienced advice on this one....
I'm also with Donna on this. I think their request is very reasonable. If I commissioned someone to make a piece of artwork, I want to be able to do whatever I want with it. Sorry, ain't spending 3 weeks of haggling over royalties before I make 10 T-shirts. Give me a price that takes this into consideration. Then if I can afford it, I'll use you... if not, I'll find someone who is not so proud of their work.
Another thought... if you are using a collage of your original artwork that was NOT designed specifically for them, and you don't want to lose the rights to it..... maybe you should come up with a new original piece, just for them.
-------------------- Jon Jantz Snappysign.com jjantz21@gmail.com http://www.allcw.com Posts: 3395 | From: Atmore, AL | Registered: Nov 2005
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I think the problem for me was two fold. Firstly, I included in the price the cost to me for painting the mural. As you know it involves a lot more than that. It took me two years of constant marketing to get it this far. I am happy with the price I charged...they are happy with the price also....and willing to pay it. The community is totally behind the project....they knew we need another welcome sign greeting our visitors coming by ferry from Victoria, BC. This one is number two. One more to go on the west side.
Secondly....I think the confusion seems to be the definition of the word "ARTWORK". Now in my little world here....I always referred to the preliminary drawing, maquettes, models, sketches, etc as artwork. They seem to be referring to the finished product as artwork. I think that needs to become clear to both parties.
Now that I have heard the excellent advice from all of you here....and went back and re-read the contract for the tenth time.....I seem to see the pattern of thier thought. I have NO problem letting the City use or promote the mural and use my name as the artist. But I got a little nervous when they wanted all my artwork ...I seem to want to hold on to that. The other project that I have with them...paid for not from the city coffers, but thru the "heads and beds tax" is 6 baked enamel metal signs for the waterfront. This is the second go around with these....I already did the artwork ten years ago and am using the artwork again for this project. The last time they were paid for by ARCO oil company and the Rotary. They didn't ask for anything. I kept all the artwork because I knew that someday I would be able to use it again....since the first project was vandalized within a couple of years, I wanted to re-do them, but with a better product. Now, if I give up that artwork to the city...there goes any future work in regards to this project.
Dan....I hear what you are saying and I agree with you. You have certainly been down this road before. This was a shock to my system when they wanted...after the fact...to take all the artwork and stash it somewhere in the bowels of city hall....without compensation to me. I had to ask why. This seemed to be the logical place to ask since a lot of you had gone thru this before. I have been doing this for 25 years and have only signed maybe 15 contracts....most of my work is a handshake and a deposit. I have been burnt only once for $65.00. Lucky? maybe. Each time something like this comes up....we all become a little more informed...if we aren't afraid to ask the people in the industry....and all of you willing to help out. I am going in tomorrow to sit with the team of city attornys and hash this out. I know that I need to stand up for my rights....and I do have certain rights. If anyone is interested past this point I can post a follow-up to let you know how it all turns out.
Now.....all the fun begins with the actual work. This is what I live for.
Jackson
-------------------- Jackson Smart Jackson's Signs Port Angeles, WA ...."The Straits of Juan De Fuca in my front yard and Olympic National Park in my backyard...
"Living on Earth is expensive...but it does include a free trip around the Sun" Posts: 1000 | From: Port Angeles, Washington | Registered: Jan 1999
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posted
I agree that it's way easier to let the client do what they want with the artwork once the job is done if you are getting paid enough... get paid enough to sell your rights, but keep your rights of promotion.
Quite a few who are not used to getting paid enough will struggle with this. Come up with a number that is fair. Do it, then move on.
I have done work where I can not publicly show my mural work in a portfolio for certain global theme parks. Our portfolio is our sales tool so it should be beneficial for both parties...
It's great when things are warm and fuzzy but when the client sets up the legal jargon, you need to respond with an educated fair response that allows the client to get what they want, and you keep what you need. (that would be the negotiating part) My client relationships are fine and I get work too and I know how to watch my butt and do it in a very nice professional way. Do it before the job starts, let it go after the job is done.
-------------------- Rick Chavez Hemet, CA Posts: 1538 | From: Hemet,CA U.S.A. | Registered: Jun 2001
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