Creative Contracts for Dummies

When it comes to creative contracts, what this usually translates to is fairly simple: You're offering rights to a work you created or the license to use that work, generally in exchange for either money or the notoriety of having your work seen and attributed to you. Courts don't generally decide on what is fair consideration - caveat emptor and all - and the definition at law is pretty broad as long as whatever you're trading is legal to trade.

"Most creative contracts have consideration, as artwork is generally bartered for money or sexual favors. However, the latter may not be enforceable due to anti-prostitution statutes." - haldron 

By making the agreement explicit, you and the other party can both file lawsuits to seek remedies for non-performance, like refunds or injunctions, if the contract isn't followed properly. A well-written contract allows the artist to collect payment if the other party is being difficult, and allows the other party to make you turn over the work if you're being difficult. Plus lots of other protections on both sides, depending on the specific terms you agree on. It also outlines the exact rights the artist is assigning or waiving, including things like whether they want to have the work attributed to them, whether to let the other party use it in derivative works (like using a logo in a business card), or whether the other party has a one-time right to use the work or an unlimited right to use it. Now we're going to go into some specifics topics, about things like rights and money. Woo!

BUT FIRST:

Here's some actual advice though: Don't sign anything without reading it. Don't sign anything you don't understand. Don't sign anything you don't agree with. Don't sign anything that has errors in it. Don't sign anything unless you're sure about it, basically. You can always consult a lawyer if you don't understand your contract or have concerns about it.

Next order of business:

Intellectual Property Rights

Okay, so let's say you just made a bad-ass logo for Company X. You're going to give it to them and they want to buy it from you, and you've not done a contract yet. Do you want to just outright give it to them - so they can use it however they want and do to it whatever they want, for a one-time fee? Or do you want to license it to them to use specifically on their website and business cards, but most certainly never on an envelope? And do you want to be given credit for it, or do you want to use it in your portfolio to sell your own skills to future customers? These are the questions you've got to figure out in your contract - because at law, you might have an unfair advantage or a total disadvantage over the company if there's nothing written.


If you work for the company as an employee (or if, as a freelancer, you elect to treat a job as work-for-hire) the default is that you have no rights, period, to the work.

"People often throw around the work-for-hire doctrine. If you're taking commissions on the internet, that doesn't fucking cut it." - haldron 

Your employer is the legal creator and has the copyright. But some employment contracts will specify otherwise - allowing you to retain some rights, like attribution for blog posts or the permission to use work from that company in your portfolio. This might be a concern if you're on staff for a corporate blog that gets a book deal, or design a million ad campaigns in-house for an agency and later go freelance. The good thing, though? Other people at the company probably have had the same experience, so the contract of employment's probably already got those bases covered in your favour. Read it. Ask your lawyer if it confuses you. You can always turn down a job offer if the contract's not agreeable. There are some specific terms to determine if a position is work-for-hire that have to do with relationships of agency:

1. Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer's location, and provides equipment or other means to create work)
2. Control by employer over the employee (e.g., the employer controls the employee's schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee's assistants)
3. Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

But short of being a lawyer, accountant or HR consultant you'd probably be a bit confused by that so let's sum it up with this gif:


So you're probably thinking, "Hey I guess I'll just freelance forever then and keep all the rights woo", right? No. No, because you're being a dick if you retain too many rights. 

"Don't be a dick." - haldron 

See, think of it this way: If you are a freelancer who's made a jingle for a commercial or a stock photo or something else you could reasonably get rich off rehashing later, it might be useful for you to keep the rights. That's fairly okay - but you're still going to want to give the company pretty broad rights, so they're not too limited in how they can use it. But if you're making a logo, I want you right now to look at it and ask yourself, "Self, what in the actual hell is the use of the copyright to this logo to me?"


Fact is? There's no use. You've made the piece for them. Give it to them. Sell them the copyright (which you can charge more for than a license!), and either assign or waive the moral rights if they exist and can be assigned/waived in your jurisdiction. That way they can do with it what they will. Adding a clause about how they can't edit it to make it terrible is a-okay, but asking for attribution every time they use it or having a license on a logo that's one-time use and non-assignable? The company's going to take one look and go "... We can't use this logo with these terms, at least not in day-to-day business." And then you're going to lose the sale, versus making cash money on the sale if you'd just sell the damn copyright in the first place.