Ninja Mountain episode 55 - Epic Self-Loathing

More questions from listeners will hit you where you're most vulnerable - your cold and atrophied heart! Also, learn what the Ninjas think about things like certain comic book artists, Shutter Island, and getting hit in the balls. Join us as Patrick, Socar, Drew and Jeremy pump up the art-volume to 11 million!!

http://www.megaflowgraphics.com/NinjaMountain/NinjaMountain055.mp3

Subscribe on iTunes for free or prepare to feel the pangs of self-hatred.

Show Notes:
Rob Liefeld

Nick Simmons

Let us not forget that we promised some answers to Steve Argyle's most excellent follow-up questions from the wonderful Linda Kattwinkel of Owen, Wickersham & Erickson ( www.owe.com ).
Linda is the author of the copyright law column, "Legalities"!

Here is the Q&A follow-up between Steve Argyle and Linda Kattwinkel.


Steve:
"Fan art." Paid, or for fun: Infringement in both cases, right? As the work may be original, but the characters portrayed are copyrighted.

Linda:
Fan art is technically infringement. But so long as the work is not being exploited commercially (e.g., the fans are not selling t-shirts), most copyright owners take the wise course of allowing it. Remember, it is always the copyright owner’s prerogative to grant permission to others to copy the work, on the copyright owner’s terms. Fan art can be allowed with the copyright owner’s explicit or implicit blessing.


Steve:
...But is there a line of fair-use somewhere in there? Most of us started out by submitting portfolios jammed full of craptastic Wolverine vs. Darth Vader drawings. And sites like Deviantart are 95% fan-art.

Linda:
Private portfolio pieces, in order to show prospective clients that you have the skill to illustrate famous characters, is probably fair use, IF you are clear about it, and especially if you are showing a prospective client renderings of its own characters. Where you could get into trouble is making such portfolio pieces public (e.g., on your website), especially if in context it looks like you actually did them as actual paid work for the owners of those characters (that would be misrepresentation and unfair competition).


Steve:
I imagine pros should just plain steer clear. I know I've turned down plenty of private commissions because the request was for copyrighted characters. Is there ever a non-satirical scenario where it's ok?

Linda:
If someone wants to commission you to create work based on copyrighted characters, I agree, it is wise to turn down the job. In that scenario, you are earning money for creating the copy, which puts you squarely in the infringement camp (along with your client). The only way to safely accept such a commission is to have a written contract in which the client warrants that it has permission to do this, and agrees to indemnify you against any infringement claims. Even then, you should make sure the client has the means to pay for defending you in a lawsuit if it happens, otherwise the indemnification may not help you.**

**You are right, the only exception is “fair use,” which generally requires your work to be a critique, comment or parody of the copyrighted character. Non-satirical copies won’t qualify.

Steve:
(I've actually tried to purchase licensing for creating artwork based on some of the big franchises. Even the ones I work for just sort of shrugged.)

And a contracts question:

Publishers all have "boiler-plate" contracts, and some of them can get downright draconian. Most artists are simply super-excited to be working, and barely read the contract, let alone understand that in some cases, they themselves are no longer allowed to use or display the work in any context.

Is there a "boiler-plate" contract outline that artists can purchase, perhaps from your firm, Linda, which an artist can use for various scenarios?

Linda:
There are some good resources for form contracts for illustrators to use in various scenarios. The GAG Handbook has several: http://www.graphicartistsguild.org/handbook/; and Allworth Press has many books full of sample contracts: http://www.allworth.com/Business_and_Law_Books_s/2.htm. These are good starting places, but I strongly recommend that you have an attorney review your proposed form before you start using it. There are always individual circumstances to consider, and they might be ill-served by the form.


Steve:
Lastly, I've had a number of this ghastly beast: "Surprise! We rewrote your contract!" Now, I realize that in many contracts, there is written provision for modification after signing, but what is the scope of what can be changed? I've had contracts rewritten to remove my rights to display the work and sell prints. I've had contracts that were rewritten from temporary license, to work-for-hire. I know that at least some of this isn't legal, but I'll be buggered if I know which parts, and what my rights are in this sort of situation.

Linda:
As a matter of contract law, once you have made an agreement, the only way to change it is by the mutual agreement of both parties. One side to an existing contract cannot just unilaterally change the terms. In order to change it, under contract law you essentially have to make a new agreement, which requires that each party provides “consideration” for the new terms. Consideration is something of value that each party gives the other in order to make the agreement legally enforceable. Generally, when you enter into the original contract, the consideration from your client is money, and the consideration from you is your illustration services and license for the client to use the art. Later, if the client wants to eliminate your rights to display the work and sell prints, giving up those rights would be a form of new consideration they are getting from you. What form of new consideration are you getting in return from them? If the answer is nothing, there is no enforceable change to the contract terms. If you are presented with such after-the-fact changes, you can just say no.

One caveat: if your client presents you with new terms that would apply only to future work you would do for them (rather than for work you have already created per your original contract), that may legally be considered an offer for a new contract, which you can either accept or reject. Their bargaining power comes in if they can say you won’t get any more future work unless you agree to the new terms. Unfortunately, this seems to be a common tactic.


Steve:
I've got more, but I'll stop now. Thanks so much for your time!

END