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.

Learning to See Values

"Monument (Merrick Butte)", Oil on Panel, 8x8 inches
Jerry Lebo, 2007

Some of you are probably wondering what happened to me--having not posted to my blog for several weeks. No, I did not stop painting or have some terrible accident. Family is fine, thanks for asking. I am very much alive and kicking--but just decided to take a total break from my blog over the holidays--and then added a few more days for good measure. So I hope everyone had a good break, but it is now back to work and back to the studio!

The good news is that the holiday break gave me a chance to work through some issues in my own painting, as well as develop some new ideas and painting exercises. The painting exercises are thanks to my students, who continue to challenge me as I try to impart my ideas to them in new and innovative ways.

One of the questions that kept coming up for me during the holiday break was the rather basic question, "How does one learn to paint?" For a long time, I have heard from others who say that the only way to learn how to paint is to "do it". And, while this may be partly true, you can paint badly for a long time and not learn anything. My current students are quick learners and thirsty for new ideas on how to improve--so I have been challenged to come up with exercises to assist their process. Some of these have proven useful in my own work. And, I am now convinced, more that ever, that the key to improving is...are you ready...learning to see.

No surprise, right? So what do I mean by “learning to see”? To put it simply, what I mean is increasing your ability to distinguish between colors, values, and their interactions—and use this knowledge in your art. To use a similar analogy from music (i.e., “learning to hear”), this would be the ability to hear the difference to between notes, pairs of notes (chords), and learn how they interact when played together—and to use that knowledge to make music.

Unfortunately, it appears there is a difference between music and art. That is, while everyone seems to take for granted that you need to practice for a long time before you go onstage—in painting people seem to think that you can write music the first day you pick up a brush. I mean everyone has two eyes, and it is simply copying what you see—isn’t it? Even artists have this bias in the back of their own minds--wondering why when they are not painting like a master after a decade or two. Would you expect to be able to write the equivalent of a Beethoven symphony after a decade of piano lessons—or, as most painters equivalently are doing, a decade or two of twiddling at the keys?

Okay, so how does one “learn to see” in practical terms. Let me give you an example. One thing that I have noticed about my students is that they are struggling translate what they see in their minds onto canvas. For example, it is very easy for me to say, "do you see that green…okay, mix the same color and value and put it on the canvas". But there are a lot of steps in the process. You need to be able to mix a color that is at least close to what you want (and in the right value), pick it up with the brush so that it is not too thin or thick, and make the right stroke on the canvas. There is a lot of room for error in this simple process.

Let me give you a more concrete example. One of the problems that my students have been struggling with is how to get the right "value" onto the canvas. Not the value they see in their mind, but the actual value required. What surprises me is that when I show them a value that is very dark--say slightly above black—they will mix and put something down one or two value steps lighter? Can’t they see? It is frustrating for them when this happens, and frustrating for me to watch. But, it reminds me of what Josef Albers says in "Interaction of Color", where he says that even in his advanced painting class, only 40% of the students when shown two different colors could correctly pick the one that was darker than the other. And, these were his advanced students! So, it is not as easy as it sounds "to see".

Let me give you a more personal example. I tried an exercise the other day where I took a simple photograph that was in color and tried to guess how many equivalent grayscale values were in the photograph (one of the silly things I do in my free time). I guessed six. Then I printed the photo out as a black and white print--and I looked at it again—and could see there were in fact around eight. Then I did something I used to do as an exercise years ago, I went down in the studio and tried to match by direct comparison every tone in the picture by directly mixing the actual value (using ivory black and titanium white) and putting it down where I saw it on the printout. Guess what, I discovered by direct comparison that there were at least 10-12 values in the picture (although some were very close). This shows you how hard it is to see values in black and white photo—let alone color.

The funny thing was, after I did this exercise, I decided to start painting. And, guess what? My painting process felt a lot smoother, and I felt like I was in control of my values during the process. The exercise of simply looking for, and then actually mixing a set of subtle values, heightened my ability to see for hours after I did the exercise—maybe for longer.

So, there you go. This is what I mean by “learning to see”. Taking the time to do something that physically forces you to struggle with seeing a value, color, or interaction between values or color. This is the best thing you can do for your painting—right now, today. Let me say that again in another way. If you want to be a better painter—don’t waste your time painting—do something that forces you to look harder and see something that you don’t normally see. The results will stay with you—and improve you work much more quickly than an hour spent painting badly.

Now, I know many of you won’t believe me—and will not take the time to do these types of simple seeing exercises. They are tedious—and not as fun as painting. But, believe me, this is what is needed to paint better. This is how you learn how to paint—challenge yourself to look and see—and you paintings will get better. It can work with composition, color, values, color interactions—all aspects of painting get better by physically doing an exercise that stretches you ability to see that thing you did not see before (not thinking or reading about it, but physically doing it).

Okay, so what exercises can you do? Of course, there are thousands. But, here is one exercise I know works—and you might want to do before you next painting session. Take a simple photograph, maybe of a still life or simple landscape—and print it out in black and white on an inkjet or laser printer. If you are working from photographs in the studio, you can use the same subject you are planning to paint. But, this is not a study you are doing, it is an exercise. You are not trying to make something that you will use—it is something that you are going to throw away.

Start by putting some ivory black and white on the palette—and try to mix one of the values you see in the reference print—and then put it down right where you see it in the photo. You should compare the value before you commit to it. So, take a small dab of the mixture you have mixed on your palette and put it directly on the printout when you think it is. It will visually "disappear" on the printout if the value matches. Take the time to remix and remix until it is right. Don’t settle for “close”, get the value exactly right. When you have a match, take a blank sheet of paper and record it with a little patch of paint. Then, move to the next value. See how many different values you find in your photo at the end. Here is a picture of the results of this exercise when I did it this morning.

Here is the startup—with my printout and bit a clean paper to record values.



Here is about midway.



And, here is the printout when it is covered. Keep in mind, this is not the same as making a painting. It is not even a value study. It is simply a piece of paper covered in paint—the benefit is in the process—not the product.



If you do this exercise until you have covered to whole photograph—I am convinced you will have learned something. You may not feel it, or be able to talk about it—but your eyes will be learning when you are doing this exercise. Try doing it everyday for a week for 30 minutes—and you will see an improvement in your work—I promise.

Okay, that is it for now. In my next post, I will teach you how to take this exercise a bit further into a formal study—or even into a painting. But, the process I described is a good exercise in and of itself—and worth doing even it you plan to throw away the finished product. The process will subconsciously teach your eyes to see values in a way you can never learn from a book or from looking at paintings. I am convinced, "learning to see" requires a physical/active engagement--there is no other way.

So, that is what I learned over the holidays, how about you?

All the best, sixtyminutearist.