Selling a painting--who gets the image rights?

"Canyon Sunset (Study)", Oil on Panel, 8x10 inches
Jerry Lebo, 2007

I received an email the other day from one of my readers asking what appears to be a straightforward question. A local business wanted to commission a painting, but also wanted to use an image of the painting in their promotional material. Furthermore, they wanted to be able to manipulate the image for various uses—in this case, they wanted to change the colors to fit with a boy or girl theme. My reader said that there wasn’t much information on the internet about this issue—and wanted my thoughts. I did a bit of searching on the internet and found there was some information—the problem was that most of it was wrong. So, I thought I would do a post on this issue, so others might benefit.

The first thing you need to know is that when an artist sells a painting, they are not selling the rights to use the image in other forms, such as on web-sites, promotional material, business cards, etc. An artist retains all rights to the image when they sell the painting. Under US copyright law, using an image of an artist's painting requires written permission from the artist until 70 years after his/her death.

You should also understand that rights to the image have value that are separate from the painting itself. For example, if you own the rights to an image, you can make prints and sell them. In other words, if you were to sign over your rights to the image, the person who purchases these rights could, in theory, go down to the local art fair (or in their store) and sell framed prints of the image for whatever they think they can get--and you could not stop them. If they have full ownership to the image rights, the can even sell those image rights to someone else—or even more than one buyer! If the image gets popular—the rights could be worth more than the painting.

So what if you put your paintings in a gallery? Galleries will often require you to allow them to retain the image rights during the period they are selling the painting so they can advertise it on their web-site or in print. This would be spelled out in the contract you would sign with the gallery--since these rights are not the same as owning the painting. Usually, once a painting is sold, the rights to the image revert to the artist--unless it was agreed the gallery would retain them.

What about commissions? I saw a lot of advice out there on the Internet that said that if the work is a “commission”, the buyer of the commission has the rights to the image. This is not always true—and in most cases where an artist takes a studio commission—it is not the case. Under US copyright law there is a clause that relates to what is call "work for hire". The “work for hire” clause applies when you are working as a freelance artist and supplying work to an employer—in which case the employer gets both the work you create and the rights to the image. Your employment contract would probably have a clause to this effect in any case. Some artists interpret this as "if it is commission, the image rights go with the painting." This is not true—unless you actually agree to this in the commission contract. Here is a link that explains when a painting is a “work for hire” and when it is not:

http://www.copylaw.com/new_articles/wfh.html

Okay, so what does this mean for an artist who has a client that wants to buy the painting and also use the image? First, you have to judge the situation and decide what is important to you--and think about the risks of granting the rights to use an image. Minimally, you should have a written contract with the person using the image covering the limits of the use of the image. There are sample contracts out there—typically in books which provide sample legal forms for artists. The language of these contracts can be quite daunting—when they talk about “moral rights” “resale royalties”. But there are some good web-sites out there that can help with understanding terminology. You can also always make up your own contract—if you feel comfortable with the issues. Here is a link to a book of sample contract documents—but there are numerous others out there—and I am not recommending this one over any other:

http://www.greatideagear.com/business.fine.artists.html

So, I guess the bottom line for an artist, who has a buyer who wants to use the image as well, is that you need to negotiate the terms and put them in writing. This can be part of the commission contract—or a separate agreement. You can grant the image rights for free, charge a lump-sum fee, or have a royalty--that is fee per use. If the person only wants to put it on their brochure--the contract might give the rights for one year for that specific purpose--this is like renting the image for specific use.

In terms of price you should charge, it is up to the market. If you think that $100 is fair for one year use--then charge that. If you want publicity for your work—you might want to make it free--but sign the painting clearly so everyone will see your name when the painting is reproduce. You can specify in the contract that a citation must be given under the painting every time it appears in print (even specify what it should say, for example, "Jerry Lebo, 2008"--or better yet require them to put your web-site under the image. As I said above, you can put a sunset clause in the contract that after one year (or five years?) the rights would revert back to you--so they have to at least come back to you and discuss continued use of the image. The right to reproduce a popular image a single time--might cost $200-$300 dollars (or more) out on the market depending on its use. If you want to know what people are charging go look at the stock image web-sites--where businesses go to buy images for promotional purposes. Here is one--where they give you their prices.

http://www.worldofstock.com/

I did a test on what it would cost to use one of their stock photos (not even a very good photo) in a brochure at half page size for a maximum of 1000 prints--and the price was $250. You get the picture, so to speak. The image rights have value--even if limited.

The last issue raised by my reader really bothered me. That was the idea that you would grant the rights to manipulation of the image when you sold the painting. This would be very hard to monitor--and the buyer could easily make you look bad by manipulating the painting in a negative way. So you would really have two choices here--either allow it, but require that you have prior approval of every manipulation. Or, you could propose that you provide a discount if they would buy two paintings (in this case, one with a girl theme and one boy). That eliminates the manipulation risks—and gives you a second sale. You can then rent the rights to use both images under the above terms without manipulation. To sweeten the deal, you can tell the buyer--if they buy two paintings instead of wanting to be able to manipulate one image, you will grant the use of both images in promotion for free for 1-2 years (or for a number of brochures)—but no manipulation allowed.

Anyway, each situation will be unique, and all elements of image rights should be considered and negotiated. I cannot cover them all here—so I have tried to lay out the basic principles. Just remember, the image has value separate from the painting itself—so be careful how you grant these rights. You don’t want to see an image of one of your paintings used improperly; it can impact your career as an artist.

All the best, sixtyminuteartist

Post Script: If you are looking for more information on copyright law and pricing of image rights, several of my readers have noted the Graphic Artists Guild, which produces a publication titled "Pricing and Ethical Guidelines". This publication provides sample contracts, pricing guidelines, and further information on copyright and business practices for creative artists.