Contract Help For Commissioned Artwork(long)

[fwinst20]

(This is a loong post)

Hey ConceptArt.org,

My name is Ferguson Winston. I have some questions about writing a contract for work that Ive done for a client. In the post Ill include the email transactions we have had and a copy of the quick contract I wrote up so that you can know what the situation is. What I need to know is...

-Is the contract that I have written up acceptable?
-Does it cover all the bases for protecting me?
-Im not too sure about what rights I have and the rights I want to give to the client so if anyone can explain these concepts to me that would be great.
-The characters are my own original designs; however, they do have the names of the actual artists. What rights do I hold in this situation?
-For payment, what are reasonable prices for doing artwork? Also for the payment section, Im not sure of a reasonable royalty fee to request.
-For the artist credit, Im not sure of how that should be written
-Any other things that you want to add, suggest, recommend, whatever. I am open to any and all advice.

Im just looking for professional advise because I do not want to get taken advantage of. Im not saying that the client is trying to do that. The client and I both seem to be rather inexperienced when it comes to things like this and Im just trying to make sure I handle the situation professionally as well as fairly. I want to make sure that Im not cheating myself but I also dont want to scare away the client by being too pushy. I have been reading the newest edition of the Graphic Artist Guild's Handbook but any help or suggestions from you would be greatly appreciated.

Here are our emails, followed by the contract. In certain sections of the contract I have questions written in (parenthesis)...

---email transactions below--------


> Mr. (client),
>
> My name is Ferguson Winston. I have been designing characters for
> your ***** project. I was informed that you liked my designs, so
> I went ahead and did a character package for each character. I also
> went back and made revisions according to your requests. So, the
> characters are ready.
>
> However, when I started this project I was not aware of the deal that
> was struck between you and the (record company name) MC's. So finding this
> out after I was already done with the project has set me back a bit.
> So as I understand it, I will be charging my people for doing the
> artwork, in exchange for some music that you gave them.
>
> However, even if I charge (record company name), you may still end up having to
> pay a certain fee depending on how my particular designs are used.
> For example, I was under the impression that I was designing these
> characters for an animation that you and the artists were producing.
> I was thinking it was something like an animated music video or
> something of the sort. That's fine. However, if the plan is to use
> the designs for more than just that purpose, then there will have to be
> a charge or some sort of royalty fee that comes along with it.
>
> So basically, I have a few questions that will help me to better
> understand the situation...
>
> 1. What exactly are these designs for?
>
> 2. Will these designs be used for any other projects such as
> advertisements, animation, games, toys, logos, CD covers etc.
>
> 3. Do you plan on making money off of these character designs?
>
> 4. When do you need the completed designs?
>
> ...answers to these questions will help me to understand just what
> exactly is going on. And it will help me to start writing up a
> contract that will be fair and reasonable to all parties involved and
> prevent any misunderstandings. Thank you.
>
> Sincerely,
>
> -Ferguson Winston

-----------------------------------------------------------------

Hey man what's up! First of all let me say the sketches are some of the
best I've seen so far. I apologize for the miscommunication though. I
told **** that I was working on a project that I needed characters
designed for and if he could find someone in his crew to do that for me
then we would call it even on the production. To answer your
questions:

1. An idea that I've been working on for a few years but just haven't
had the time to develop. It is basically going to be an ongoing
collection of songs/episodes with a storyline. Sort of an album/comic
hybrid.

2. The designs would basically be the face of this project. I'm making
it up as I go along so I can't really tell you what I'd do in the future
but right now I'm trying to decide whether to do a comic with the cd or
do simple animation with something like Anime Studio.

3. Yes. But it will be the entire package as an idea that I'd be
selling. Depending on how it turns out, I do intend to submit it to a
couple of labels and, through a long shot connection, adult swim. If
any of those things were to pop I'd be more than happy to compensate
you. In fact, I'd most likely be trying to get you to do more stuff.

4. I told **** that I needed them as soon as possible. Since I'm doin
the entire thing myself I'd like to try and record songs and work the
art at the same time and I'm totally inexperienced with animation.

Again I apologize. I thought that **** was talking to a friend of
his to help him with a trade off. I really do like your character
designs and I actaully want to talk to you about doing some designs for
my group (*****), but this is a small time thing that I'm doing,
essentially meaning that I'm gonna be doing the whole thing myself.
Bottom line is if this becomes something that makes a substantial amount
of money I will not only be happy to break you off, I will most likely
want you to be more heavily involved. But right now its literally 1 guy
in his room with an idea.
Also, I'm curious as to what you'd charge for designs for my group.
Basically characters based on us that would most likely be mascott's for
the project.


Thanks!

(client)

[P.S.] Also, if you can let me know how much more you would need. I literally
have no budget but I will make some sort of attempt to cover the extra
charge if there is one


----------Contract---------

11/14/07
Commissioned by: Mr. (client)
Artist: Ferguson Winston
Third Party: (record company name: representative)
Job: **** Project Character Designs

This letter is to serve as a contractual agreement detailing the terms of use and payment procedures for commissioned artwork for the **** project.

Project Description
(client) has commissioned Ferguson Winston (artist) to produce character designs for his **** project. The Project calls for the design of four (4) characters, (character names) as promotional images to supplement (client's) musical career. The artist, Ferguson Winston, has completed fifteen (15) pages of artwork with his original designs of the characters. The character packets include character turnarounds, character breakdowns, facial expressions, and action poses. Copies of the artwork will be delivered to (client) upon receipt of payment.

Grant of Rights
The artist retains all rights on the character designs.
(Is this okay? I dont really understand the rights situation. What would you recommend in this case?)

Limitations of Use
I Ferguson Winston (artist), grant (client) the right to use the artwork completed for the **** Project, on the current (Im not sure if its an animation/comic/or what exactly) portion of the ****Project only. The designs may not be used for other projects unless the artist has been consulted first, and permission has been granted. None of these rights take affect until payment is received and finished artwork has been delivered.

Payment
A payment of $200 will be delivered to Ferguson Winston (artist) in the form of cash or check by third (3rd) party, (record company name: representative), according to a previous deal struck between (3rd party) and (client). If payment is in check format, the check will be mailed to the following address…

Ferguson Winston
********
******** ******

Upon receipt of payment I, Ferguson Winston (artist), will deliver copies of the finished artwork to (client) for use in the ***** Project. In addition, if the client’s, efforts with the project succeed, and the use of the designs branches off into other projects, usage, medium or multimedia, I, Ferguson Winston (artist), request a royalty fee of ___% of gross profit for the use of the design in that medium. I also ask for favorable mention and consideration for future projects. Designs will not be used in other projects other than the immediate ******project without first consulting and getting permission from the artist.

(Okay in this section. I wrote gross profit as opposed to net profit. Im not really sure which one I should actually write. Any ideas? Also what do you think of the request for royalties? And what of the idea of having to ask artist for each different use of artwork? Im not totally sure if the project is an animation, comic, album comic or what at the moment but, is this a safe request to agree upon?)

Credit
The artist shall be given name credit for the development of the characters in anything and any form that they appear in. The credit line should read as…

Characters © 2007 Ferguson Winston
or
Characters Created By: Ferguson Winston

(is this right? I mean, I did design the characters from scratch but, a few of them have the names of the actual music artists. Do I still own the copyright to the characters? Is the format correct?)

Artist retains the right to use artwork on website, resume, portfolio’s etc. and to display artwork for promotional purposes.




Sign__________________________ Date__________________

Sign__________________________ Date__________________

Sign__________________________ Date__________________

(do you think this contract in general will intimidate and scare off my client?)

Thankyou for any help that you can give.
-Ferguson Winston

[Grief]

dont worry about 'scaring him off'. if he's at all serious about getting designer help for his project, he should be expecting no less professionalism from his employee.

here's a generic template of things i make sure to cover when creating a Design Brief ('contract')

make sure you have multiple copies for both client and designer to keep record of.
..... ..... .....

DATE: MM/DD/YY
CLIENT: CLIENT NAME
PREPARED BY: YOUR NAME
ORGANIZATIONAL PROFILE
describe company/organization, their product/service, market position, core competencies and strengths.
OBJECTIVE
Client’s objectives in this project
TARGET AUDIENCE
Who will be receiving this?
STYLISTIC PREFERENCES
What are the client’s stylistic preferences? What about the audience?
MEASUREMENT OF SUCCESS
How will we be able to tell if the project was a success?
SCOPE OF SERVICES
Exactly what are the specifics of what you will be doing for the client?
DELIVERABLES
List specifics (i.e. size of final product, number of copies, support documents, etc.)
FEES
How many hours do you estimate? What is your hourly rate or project rate?
TENTATIVE SCHEDULE
· DATE: Contract signed by client, design brief approval
· DATE: Initial directions/ideas comps presented to client
· DATE: Client response to comps received
· DATE: Revised comps presented to client
· DATE: Client approval of design direction, sign-off
· DATE: First proofs of final design shown to client
· DATE: Client response to first page proofs received
· DATE: Second page-proofs shown to client
· DATE: Client response to second page-proofs received
· DATE: Final page-proofs shown to client
· DATE: Client sign-off of final page-proofs received, green light for printing/production
· DATE: Final delivery
CLIENT APPROVAL
Please read, sign, and return.
client________________________________title_______ _________________
signature_______________________________ date ____________________

[Flake]

What's the name of that book with lots of illustration contract templates for all occasions?

Not the Graphic Artists Guild book, it's more contract oriented, and while it could be handy for this chap I cannot remember the title of it at all..

Hopefully someone with a better memory than mine knows what I'm on about.

[emily g]

Is this (http://www.amazon.com/Business-Legal-Forms-Illustrators/dp/1581153643/) the book you're thinking of?

fwinst20, it looks like you are doing your research and have something very good written up. I do not think this will scare off your client, as he seems reasonable and willing.

To answer your questions:
-Is the contract that I have written up acceptable?
Yes, I think so.

-Does it cover all the bases for protecting me?
Well, you are limiting it to a specific project and making sure they come back to you for additional usage, so I think you've done a good job.

-Im not too sure about what rights I have and the rights I want to give to the client so if anyone can explain these concepts to me that would be great.
I think you have the concept correct in your contract. You own all of the rights, and the client is just purchasing a small subset of them. Some contracts further limit the rights by location (i.e. North America as opposed to International) or time (i.e. 1 year).

The "Grant of Rights" section in your contract is confusing because you are not actually granting any rights in that section. One of the contracts in the GAG book does it like this:

RIGHTS TRANSFERRED. BUYER PURCHASES THE FOLLOWING EXCLUSIVE RIGHTS FOR USAGE:
blah, blah, blah, rights listed here

Then underneath, it says, "Artist reserves any usage rights not expressly transferred. Any usage beyond that granted to buyer shall require the payment of a mutually agreed upon additional fee. Any transfer of rights is conditional upon receipt of full payment."

You can modify that second sentence to "royalty" or "royalty and/or fee" or just leave it out since you deal with it in another section.

"Artist retains the right to use artwork on website, resume, portfolio’s etc. and to display artwork for promotional purposes" could probably go in this section as well instead of at the bottom of the contract.

-The characters are my own original designs; however, they do have the names of the actual artists. What rights do I hold in this situation?
Not sure. You definitely own the rights to the artwork, but I don't know that you can own the "characters" if they are real people.

-For payment, what are reasonable prices for doing artwork? Also for the payment section, Im not sure of a reasonable royalty fee to request.
Whatever you and the client agree to. They royalty amount could differ based on the specific usage. I suggest you don't limit yourself to a royalty percentage, but instead negotiate each deal separately as/if it comes up. Maybe for one usage you would want a royalty, but for another you would want a flat fee (or maybe both...so you get a royalty if it sells well, but don't end up with nothing if it doesn't. Something like the advance they give on children's books). Also, royalty percentages can be based on the list price of the item sold or on net sales, depending.

-For the artist credit, Im not sure of how that should be written
If you are worried about the character thing, maybe you could write "Character Designs © 2007 Ferguson Winston" or "Character Designs Created by Ferguson Winston"

-Any other things that you want to add, suggest, recommend, whatever. I am open to any and all advice.
Perhaps give a time limit on when payment should be received by, i.e. 30 days. In the GAG book, 1 1/2% is the monthly service charge for late payments. If you don't want to add the service charge, just remember that he can't use the designs until you receive full payment anyway.

*Disclaimer: I am not a lawyer and this is not legal advice.

[fwinst20]

THankyou Grief, Flake, and emily g for your responses they helped me out alot. Especially emily g, thankyou for responding to each of my questions, it has really helped. Ive posted this on other forums and no one has really been as helpful. I have revised certain portions of the contract and made it so that the client has the rights to use the designs however he would like on just this particular promotion project that he is working on (it may include things like comics, animation, cd art etc.) as long as it is produced solely by the client, and if it goes off into other things where a label wants to pick him up, or license them out for other means then, a new agreement would have to be settled on for the new project.

In the contract I stated that the client retains the rights on the creation, concept, identity and persona of the characters. But I, the artist, retain the rights on my particular designs for the chatacters, and Im letting him use them for this particular project.

Im not quite sure if thats the right choice but, Im hoping to sort of give a favor in hopes of maybe receiving a favor later. I hope I didnt cheat myself. Im really new to all this stuff. But thanx again for your help.