Have you ever heard that saying about politicians—that the reason we’re in such a mess is that those best suited for leadership are the ones that would never seek leadership for themselves?
Creative artists sometimes experience a converse paradox: an artist is not by definition a businessperson, and artists may have no desire to learn about legal business practice and intellectual property—but because of this, it’s extremely important for them to learn a little about their rights to their work so that those rights are not abused.
This post discusses four important tools a creative artist can use to leverage exactly what aspects of his or her work to maintain control of—and what other people may legally do with it:
- Model Release Form
- Work for Hire Agreement
- Copyright Assignment Form
- Copyright License Agreement
Let’s take a closer look at each of these tools that can help you manage your intellectual property and allow others to use it in a way that you see fit.
Model Release Form
Especially suited to photographers, a model release form is used at the time of the photo shoot. It is used for any human subjects to agree that the resulting intellectual property is that of the photographer, and that the model will not claim any ownership in the material.
It’s typically a good idea to have all your bases covered and ask all your models, regardless of your current intention for the photographs, to sign a release form from the very beginning. This way, you can settle any ownership issues before they even arise and avoid any messy legal entanglements.
More information is available in the “Model Release Form” article on Hubpages.
Work for Hire Agreement
A work for hire agreement is common for independent creative artists of all types; photographers, writers, designers, and other independent artists may already be familiar with them.
Generally, copyright law states that during the course of an employment (“employment” meaning the employee has work hours set, taxes withheld, benefits provided, vacation days, and so on), anything created by the employee as a standard part of that employment is considered the intellectual property of the employer.
However, this does not apply to independent contractors, who typically make their own hours, provide their own equipment, and do not have taxes withheld from their payment (more information on this distinction at the IRS’s article, “Independent Contractor or Employee?“). An independent contractor is not bound by copyright laws dictating a standard employment structure, and without a work for hire agreement, generally, a work created by the independent contractor legally belongs to that contractor.
This can be a problem in any number of cases—if a business hires a designer to create its website, does it make sense for the designer to keep the rights to the website? Unless ownership is specified in a work for hire or other agreement, that’s what happens, and this can cause issues further down the line when your business grows.
To settle the question of ownership, a work for hire agreement can be used at the time of the commission (before the work has been created). Ivan Hoffman has some excellent information about when this is and is not the appropriate agreement in his article, “Work Made For Hire Agreements.”
Copyright Assignment Form
If you forgot to sign a work for hire agreement before the work was finished, there’s always the copyright assignment form—this is used to transfer ownership from one party to another, and this can be done after the work is already completed.There are any number of situations in which a copyright assignment form is the best choice. Consider the following scenario:A band creates an album, but one member amicably quits the band, settles down, gets married, decides to forget about the music scene altogether. (Boo.) But the rest of the band decides to carry on and push the album through extensive touring, radio spots, and hard work. Licensing is an option, but since the ex-member is no longer putting forth any effort to promote the album and drive up sales, everyone agrees to a copyright assignment form, effectively shifting all stake in the album to the remaining members.
I take a picture for personal reasons and I keep the copyright. A local business sees it and contacts me to use the picture for their website, sign, and all promotional materials. They essentially want the picture to become a part of their brand. It makes sense for me to sell all rights to the image to the business so that it’s theirs to use exclusively for as long as they like, and I ask them to cut me a check for handing it over. Everybody wins!
For more information on copyright assignment forms, take a look at what copyright law has to say about copyright ownership and transfer.
Copyright License Agreement
In the second scenario above, what if I don’t want the business to have exclusive rights to my photograph? What if I want to let them use it on their website, but I don’t want it on any other material? A copyright license agreement can outline those restrictions, allowing me to maintain the copyright over my photograph and allowing the business to use it in a specified way, for a specified amount of time, for a specified fee.
There are many different types of license agreements, not all involving fees. For instance, some licenses (common in software) allow users to download the material for free, provided that they use the work in its entirely (rather than strip out bits of code and repurposing it for other uses) and credit the creator. Regardless of the fact that no money changes hands here, these usage copyright licenses are consistently upheld by the courts.
[For more information on copyright licensing and other usage issues, take a look at Click and Copyright’s in-depth publication, “Your Copyright Questions—Answered!” or check out their individual intellectual property forms for download.]