Ownership, Licensing and Creative Control
Legend has it that Pablo Picasso was sketching in the park when a bold woman approached him.
“It’s you, Picasso, the great artist! Oh, you must sketch my portrait! I insist.”
So Picasso agreed to sketch her. After studying her for a moment, he used a single pencil stroke to create her portrait. He handed the woman his work of art.
“It’s perfect!” she gushed. “You managed to capture my essence with one stroke, in one moment. Thank you! How much do I owe you?”
“Five thousand dollars*” the artist replied.
“B-b-but, what?” the woman sputtered. “How could you want so much money for this picture? It only took you a second to draw it!”
Picasso responded, “Madame, it took me my entire life.”**
I’m not quite sure where I first heard this – nor am I sure if this incident actually ever occurred – but as a parable it serves an important purpose to illustrate a few key points about commissioning creative content, whether dealing with artists, writers, actors, or musicians. As an illustrator, I will not profess to speak for other professions in which I am not qualified, but this tale indicates that the fee for a commission should reflect its value, and this is not solely based on the working time of a project. In this blog entry, I will discuss intellectual property and licensing, as these are often subjects I have to tackle with first-time commissioners or people who are unaware of the position of an artist.
It is not uncommon for me to receive inquiries from strangers, many of whom often have little experience in commissioning and come bearing certain preconceptions that can prove contrary to professional practice. Dispelling these assertions can be time-consuming and energy-sapping; the realities of which can sometimes prove counter-productive in regards to actually securing a new brief. The process of accepting terms is never straightforward and will vary from project to project depending on key factors including fees, ownership, duration, and application, all of which have a bearing on the others.
One of the most common assumptions is that ownership of any creative output is automatically surrendered to the client as part of general practice. ‘I paid you to draw a picture, so that is mine to use however I wish’ is a sentiment I occasionally hear when initially discussing the subject with a novice art buyer.
This general misconception assumes that as a freelancer I am providing a simple work-for-hire service without any creative or intellectual input – purely a skilled pair of hands to mechanically facilitate the client’s will – but this is far from the reality of what the job requires.
As alluded to in the tale of Picasso in the park, the cultivation of one’s visual vernacular is a continuing exercise for any artist and can take years to define. The technical skills required to express one’s work is part of this continuing development, but there is also a cognitive element that often gets overlooked, and one that actually makes a lot of difference when it comes to the laws of ownership.
Give any ten illustrators the same brief and you would not expect any two of them to produce the same piece. This is because each individual’s contribution is based on his or her skill, thought processes and experiences that will inform the individual’s eventual output. So it is understandable for any artist to cherish its work as unique to its process, and value the intellectual property as an asset.
Be it a piece of music, writing, image, or as is often the case with my line of work – character design – intellectual property applies.
This law of ownership not only provides the artist with copyright for his or her ideas and creative content, but also helps to retain control of how this is used. The same way that a client may value the freedom to employ a commissioned piece of work without restriction, an artist would not wish his or her work to be used without authorisation, as this could possibly lead to ethical or financial conflicts.
… Imagine how Bono would feel if his music were used without consent to promote a cause to which he had moral objections …
Therefore ownership is obviously of high value to both the client and the artist. It is thus perhaps quite surprising that people so regularly assume that intellectual property passes to the client by default – in complete contradiction to how copyright laws exist in reality.
Relinquishing this legal right is never considered lightly and it can often be unnecessary for the client to obtain for the intended purposes of a project. We should therefore consider other ways of agreeing amenable terms.
By clearly setting out the parameters of use, licensing agreements grant the authority to use creative content for a specific application over a pre-agreed period of time. This is standard practice in the creative industries and is a system that can be mutually beneficial for both parties. Ownership is not completely surrendered by the artist, and the client gets exactly what it requires from the outset without excess expense or obligation.
Licensing agreements form a legal framework that offers protection for both parties and can be tailored to a wide range of requirements from project to project. In the editorial industry, it is common for an art director to commission work to supplement its content. This may require use of an illustration for print over a short period of time and in a limited geographic region for circulation. This means that obtaining global ownership rights indefinitely would make little business sense and be financially inappropriate. Should the need-of-use change at any time, it is often possible to renegotiate terms with mutual consent to allow flexibility for changing circumstances that reflect the value of the asset more accurately, as this may change over time.
But it’s not always as easy to define how an asset will be applied from the outset, nor is it practical to re-negotiate an agreement as the requirements change over time. This can often be the case when dealing with branding resources, as a company’s strategy may be in continuous development. Large companies may have the resources to simply purchase ownership outright and balance the financial risk of obtaining the intellectual property against the practical positives of introducing this asset into their portfolio. This can often involve large sums taking into account the potential future value of the asset to the business – as is true for branding characters and logos.
Just think of the value McDonald’s places on Ronald McDonald or the Golden Arches; the size of a client will have a direct correlation with the value of the asset.
So how does licensing benefit those commissioning on a smaller scale? With a set period of use for a moderate fee based on the early value of a brand asset, the client benefits from a drastically reduced fee that can offset any unmanageable numbers. Quality is raised as it is in the interest of both parties that the asset should help the brand to grow and thus increase in value. This protects the client from the risk of overspending on an asset, and provides greater freedom in its branding strategy while ensuring that the artist receives the value of his or her creative content as it changes over time and is used differently.
This makes practical sense and pushes up professional standards by establishing a balance between artist and client.
So if we rejoin Picasso in the Park sketching away, we can now appreciate that his creative endeavours are informed by his skill and experiences – and so hold a value beyond that of the materials or his working time. But this value is only true if both parties involved agree terms. Should the lady in question turn on her heels and walk away, leaving the sketch in Pablo’s lap, then there would be little he could do beyond chasing her through the undergrowth with no prior agreement in place – though that is a parable for a different subject.
I humbly acknowledge that there are some incongruities with this story and the practicalities of commercial commissioning, but it quite eloquently demonstrates the main point of highlighting the unseen work of continued development for a creative and the importance of his or her cognitive contribution.
For many artists, the fees are not the primary motivation and serve little function beyond maintaining one’s own survival. Retaining intellectual property rights means maintaining control of creative content and that can be integral to preserving a level of professional respect for one’s own work – and hopefully others will follow suit.
How things are owned may vary from project to project, but for commercial commissioning of creative content, licensing is a practical system for balancing cost and risk by leasing out use rather than surrendering high value assets cheaply.This helps to push up quality by ensuring both parties have a stake in the asset. Assigning copyright not only devalues the work of the artist, but also undermines the illustration industry as a whole.
Though it may initially seem uncomfortable when first dealing with the subject, it does make sense in terms of copyright law and ownership. Intellectual property is a big deal and so should not be overlooked lightly.
* Picasso largely worked in France (especially after attaining notoriety and fame) so I assume this sum would actually be in French Francs as the currency at the time, but I have retained this figure from the online reference for continuity if not accuracy.