Tired of being pushed around?

Do you have the sneaking suspicion that perhaps the contract presented to you by the huge multinational corporation might not have your best interests at heart? When you attempt to read that contract, do you feel overwhelmed? Does the kryptonite-like mass of clauses, sub clauses and riders, dense with arcane language, drain the very life force from you, so you weaken and sign?

You are not alone. A lot of illustrators and photographers have a hard time with the whole contract thing. Many of us are guilty of blindly signing anything - operating as if we were still in the bygone days of gentlemen's agreements. In fact, I know personally illustrators who would rather chew off their drawing hand than read a contract. Those who do read them feel powerless to change anything.

There are many great resources out there for those who want help or want to educate themselves about contracts and contract negotiation. However, a right brain person who can barely make it through a two page contract without coming down with a case of the vapors is not likely to read a book on the subject, no matter how good it is.

The good news is that contract basics - ad having them work for you - and how you can make it work for you are fairly simple.

The first thing you need to know is no contract is carved in stone! Every contract is a starting point. The client is just trying to do what you should be trying to do - get as much as they can. Many companies will first present you with what I like to call the IQ test contract. This is the one that asks for as much as they think that they can get away with - and sometimes that's the ability to use your image throughout the universe forever. However - there are always things that can be changed, and often they have a whole other contract that they send if you balk at the first one. More about negotiating contracts later.

The second thing you need to keep in mind is that asking for changes does not make you a bad person. Clients they may try the age-old trick of saying 'Why, you know, you're the first person who's ever had a problem with this contract!'. Don't believe it.

The third thing is to set a standard, professional studio practice. Establish some general guidelines for yourself - a range of fees you are willing to work for, what rights you are willing to give away - and try to stick to them. Write them down if you need to. Update them as needed. It's also helpful to have some rules about how you handle the paperwork - keep notes during conversations with clients, save emails, file contracts by year, etc. Doing these things will make you look and feel more professional, and they just makes the whole process easier.

What IS a Contract

Anything, written or verbal, that describes what you are going to provide, and what the client is going to pay is a contract. However, a good contract should have most or all of the following information. If you are drawing up your own contract, make sure you include this information. If your client supplies the contract, make sure you add any specifics that they leave out.

Project Description. The description of what they need you to do. Make sure you have a pretty complete description in there, so if additional work is added later you can renegotiate your fee.

Medium or Product. This is where the image will be used - in a print magazine, online, on a t-shirt, etc. The contract should be specific.

Category of Use. Advertising, retail, corporate, magazine, book, etc. For instance, you might be doing an image for a magazine, but the magazine could be a regular newsstand mag, a mag that a corporation sends out to clients or employees, or a magazine that's advertising something. The fees for different categories can vary quite a bit.

Area of Use. United States, North America, worldwide, etc. Wider use should mean a larger fee.

Duration of Use. How long they plan to use it. For newsstand magazines, for instance it is usually, but not always, 3 months.

Reuse. They may want to reuse the image in possible future projects - anthologies, ads, etc. Any fees for such reuse should be spelled out.

Licensing Third Parties. There may be language in the contract that allows the client to sell your image to other entities. Again - you want to get paid for this, and the fees should be in the contract.

Exclusivity. If you retain the rights to use your image elsewhere (and you should unless you are being paid a big whack of cash) the client will often request that they have exclusive use of the image in whatever medium they are purchasing rights for, for the duration of use. These two things should be spelled out.

Kill Fees. If, for whatever reason, the job is killed after you have begun work, you should be paid for the work done so far. For illustration, the industry standard is 50% of the fee if the job is killed at sketch stage, 100% at final art stage. Most magazines use these figures, but some will try to get away with paying you 25% if the job is killed at final art stage.

Ownership of Art Copyright. If it doesn't specifically say otherwise, you retain ownership of the physical art - so look for any clauses that let the client keep your art. Either strike it out, or negotiate a separate fee.

All-Rights Terms. Look out for clauses with phrases like 'all rights' or 'all rights and title'. It means the client can use the image anywhere they want without paying you more money. Which is bad, unless they paid you an embarrassingly huge fee upfront.

Work For Hire. If you see this phrase, run as fast as your little legs can carry you, unless your client is paying you truckloads of dough. Basically this means that they own the image, the sketches, the concept, any outtakes, everything. They own it throughout the universe, forever - no joke. The guys who created Superman signed work for hire contracts. They died nearly penniless. 'Nuff said.

Main Types of Contracts

Oral Agreement. When an art director phones you up and asks you to do a job, you have an oral agreement. However, since it's his word against yours if anything goes wrong, an oral agreement is not worth the paper it's written on. So while the client is blabbing, take notes about the job, fee, date, delivery dates, etc., and save them. I like to use a phone log. You can buy them at an office supply store. You write the notes on the top sheet, and they are transferred to a second sheet. You can tear out the top copy and put in the job file. The second sheet stays in the phone log. When you fill up the whole book, toss it in a filing cabinet. If you need to refer to something weeks months or years down the line, you have dated notes. If you ever need to take a client to court, those phone logs are gold!

Letter of Agreement. These days, that's likely to be an email from a client stating what the job is, when they need it, what the fee is, etc. Some clients will email a separate assignment letter. This isn't a perfect contract because it often doesn't lay out any information about what rights they are buying, but it's at least a piece of paper with some information about the job on it - better than nothing. Slightly.

Estimate. This is a form or letter that you send the client describing the job, the fee, and the usage or rights that they are buying. You don't usually do this for smaller magazine jobs - more for corporate or advertising jobs. It's a great way to establish upfront what you are doing and for how much, and it lets you set the terms. As with all this stuff, talk to other illustrators, designers and/or photographers about what they do.

Purchase Order. This is something that you get from the client, usually from corporate or advertising clients. It's a good idea to ask if they use purchase orders and to ask to see it before you get started since there are often funky clauses you won't like. Like the dreaded work-for-hire. The other thing is the front of the purchase order will have the basic description of the job, fee, etc, and the back might have this horrible contract printed in light grey 2 point type.

Working Contract. This is the usual type of contract that you would get from a client. Again, this should be considered a working document, and you should change it if necessary.

Boilerplate. This is a more general version of the working contract. It's usually got a lot of big general all-inclusive clauses in it to cover a lot of different situations, and often needs to be narrowed down to cover the specific job at hand. Another kind of boilerplate contract is a contract that you draft yourself to use as your standard studio contract. It's a good idea to have one of these on hand for situations where the client doesn't have one, or to offer as an alternative to theirs. You can have a standard contract to cover everything, and adapt it to specific jobs as needed.

Post Project Contract. This might be terms that you put on your invoice that you send the client, or a tiny contract that appears on the back of the check they send you. This last one is rare, and has been successfully fought in court, but you still see them occasionally. Just cross it out.

Retainer. If you have a regular gig - for instance, supplying an image every month for a certain column in a magazine, or have agreed to work on a project for a given time, you might get (or might want to provide your own) retainer contract, which outlines the amount of work, payments, duration, etc.

Okay - that's the basics of what a contract is and what kinds of contracts you are likely to encounter. In the next article, I'll show some specific examples of contracts, good and bad, and discuss how to negotiate a better deal.

If you have been able to read this far without any blood running out of your ears, then you really should check out some of those resources I mentioned earlier, which do a far better job of explaining these things than I can.

  • Graphic Artists Guild, Pricing and Ethical Guidelines
    This is the bible. You need this book - buy the latest edition, and always get the latest one. Don't feel you have to read it cover to cover, but refer to it often as you need it. Do read the Standard Contracts and Business Tools chapter. In fact, tattoo it on your arm.

  • Business and Legal Forms for Illustrators
    Tad Crawford
    One of a series - there's one for graphic designers, photographers, etc. A font of information, they should also be part of your reference library. They include cd-roms with all the contracts on them, which you can customize.

  • Legal Guide for the Visual Artist
    Tad Crawford
    Another bible - get one.