Oct/094
The Orphan Works Bill
I wanted to take a minute to address a big issue facing artists that surprisingly few people know about.
In 2006, a bill was introduced to the U.S. House of Representatives called the Orphan Works Bill. It was later withdrawn, then reintroduced in 2008, and made it on to Congress at that time.
An orphan work is a copyright work where it is difficult or impossible to contact the copyright holder. When do you own a copyright? Under current law, as soon as you make your work. Your copyright lasts until the day you die, plus 70 years in the U.S., sometimes longer depending on various factors.
The Orphan Works Bill calls for the creation of a database of all Pictorial, Graphic and Sculptural Works (Section 3). It also allows people to use potentially copyrighted material so long as they do a “reasonable” search for the owner. If they cannot find the copyright owner, the work becomes public domain.
The underlying purpose here is that you will have to PAY to register your work on this mysterious database or people will be allowed to use it, claiming a reasonable search. Under current law, you do not have to register a copyright to benefit from protection, but you can, and if you can you can seek statutory damages if your copyright is infringed.
You can see why so many artists are opposed to this bill. For people who only produce a few or a dozen works per year, registering them might not be too costly, but imagine the cost for photographers, who might produce hundreds of pictures on a weekly basis.
So what can you do?
View the bill.
Read the proposed amendments.
Join a group in support of stopping or amending the bill.
Spread the word among your artist friends. The more people that know about this, the better.
Call you legislator and tell them why this would negatively impact you.
We cannot afford to be in the dark on this one, so I hope everyone will take a personal interest and get involved in this.
Oct/090
The Work is Done, So Where’s the Dough?
aka Contract Breaches and Demand Letters
This is the age-old question that has plagued countless artists in the past and will doubtless plague countless artists in the future.
You’ve been hired by Company ABC to do some illustrations for them. You’re smart and you work out a good contract, which entitles you to payment within x number of days.
You did the work on time and turned it in with no problems. But the unthinkable happens and x number of days has passed and you are without money. Now you’re hungry and have no electricity because Company ABC didn’t meet their legal obligation to you. But, hiring an attorney or arbitrator, if that is what your contract provisions, is expensive at worst and time consuming at best. You just want your rightfully due money!
Well, don’t call your lawyer quite yet. There is one more thing you can do.
It’s called a Notice of Breach of Contract or a Demand Letter. And it goes a little something like this:
By Registered Mail
Recipient’s Name
Recipient’s Address
Date
Dear Recipient’s Name:
Re: Contract between Recipient’s Name and Your Name dated Date of Contract (the “Contract”).
You are hereby notified that you are in breach of Specify Provision in Contract which Specify How Breached (ie. you are in breach of Section 3 of the contract which requires you to pay within 30 days of acceptance of the work).
The said breach results from Specify Action which resulted in breach (ie. your failure to pay within 30 days of July 20th, 2009, when the work was formally accepted).
You are hereby notified that unless the said breach is remedied within Specify Applicable Cure Period (ie 10 days) of the date of this letter, then we reserve the right to exercise any and all remedies available to us under the terms of the Contract or in law.
You are hereby notified that we require State the Nature of the Demand (ie immediate payment of the contractually agreed amount of $1000.oo), failing which we reserve the right to exercise any and all remedies available to us under the terms of the Contract or in law.
Yours truly,
Your Name
You may want to include printed evidence that you have of your claim, such as emails saying the work was accepted, etc, depending on what the terms of your contract are.
I simply copied this format from the internet, and you can simply write it in plain English, if that suits your preference better.
Make sure you send the letter via the post. Don’t send an email demand letter. Note the day and time you sent the letter, make sure the date on your letter is accurate.
The hope is that the company will see this, go “Oh yes, paying them is a good idea for us” and just pay you. If they still don’t, you may have to take it to the next step. This may seem harsh or make you nervous, but it is really nothing but fair. You deserve to be paid for your work, on time, and without a lot of runaround- it’s just that simple!
Aug/094
Commission Contracts
When you take a professional job, you of course want to make sure you are going to be compensated for it, just as anyone hiring you wants to make sure that you’re going to deliver a product that they are happy with. To enforce this agreement, the company can issue a contract, which is a legally binding agreement. Alternatively, you can also issue a contract, and should do so when you take on a new client or job! Without a contract you have no way to enforce the agreement and to guarantee you will be paid for your work. But you need to be careful, because even with a contract you can be burned, so you have to read the fine print.
Most contracts cover a few basic points:
- Who, Why, When, What- Who are the parties involved, Why is Party A hiring Party B, When is the agreement taking place, and What compensation is being given to Party B.
- Scope of the project and specifics or details. This includes payment details which are of utmost importance.
- Responsibilities of each party. The artist agrees to certain revisions and progress reports, the client agrees not to intentionally destroy the work, etc.
- Contract termination. What happens if the artist cannot produce the work as specified or the client changes their mind.
- Legal issues and liabilities. Who owns the work, who pays attorney fees if things go sour, licensing agreement, etc.
I’ve created a contract for example and also available for use. It’s an amalgamation of many contracts that I’ve found free on the web (google: art contracts) and what I consider to be the best parts of each. It’s under Creative Commons so you can feel free to use and edit it to suit your purposes. I explain the contract in more detail after the jump.
For now, you can find the sample contract here.
You Are Your Own Best Advocate
Contracts don’t have to be written in legal-ese. You can easily write your own contract to suit your style, as this web developer does. Just be sure you cover the finer points so you’re covered.
Things to watch out for:
Your work, your rights. Do NOT just give the rights to your work away. If someone wants the rights, it is typical to charge 150% to 200% more for the work. You can retain the rights to your work and license it out to a company just as easily.
Payment schedule. Some companies pay a deposit for the work, then the rest after acceptance (or as the job is done), others pay the full amount on acceptance, and still others pay after publication. If you can, try to get the jobs where your work will be paid for immediately. Publication can take a really, really long time, and companies can go bankrupt before your work ever sees the printing press. A piece you may be relying on for your food and electricity might not hit the shelves until a year later. That would be bad. You would be very hungry.
Law and Order
There is help out there for those seeking legal counsel, provided for free (I know, I couldn’t believe it either).
The Volunteer Lawyers for the Arts (VLA) has branches in over thirty states and internationally. You can find them through this directory.
Aug/091
Expense Report
As an addendum to the GenCon post, I’m also adding an expense report template that you can use to track your expenditures. You can use this same form for any business-related trip. Keep in mind that not everything you do is a business expense. A business dinner, yes, but eating out at a steak restaurant just because you feel like it? Probably no. Just be reasonable- if you think you could successfully argue it to an IRS agent, you’re probably alright. If not, you’re slipping into dangerous territory.
You can find the Google Doc Template here.
You want to keep a record of your expenditures, along with the receipts to prove them, for your Schedule C come tax filing. We’ll get more into Schedule C’s in a later post.
If you’ve been taking advice, you already have a separate bank account for your business income and expenses, in which case your Schedule C will write itself infallibly with a printed out yearly bank statement.
Jul/090
Finding Models
Finding great reference can be the cornerstone of a very successful piece, but sometimes an image search just can’t turn up what you’re looking for. Worse, if you use reference from someone’s work (photography or otherwise) you may be infringing on their copyright. Sometimes, the best way to get exactly what you’re looking for is to hire a model and take the shots yourself. Understandably, finding models can be an intimidating process, but can be simple if you know where to look and how to prepare.
Finding Your Muse
Check out Model Mayhem. Just about every model I know has a profile on there, some represented and some not. The difference is, a model who is represented by an agency will cost more, but often they will also have more experience modeling. Alternatively, there are a lot of fantastic models on there who are not represented. You can search for models based on a variety of criteria, and get as specific as you want. You’ll want to look for a model who is local, or expect to pay for their transportation. You may have to register for an account to get in touch with the model if their email is not given up front- this is easy to do and they specifically have accounts for artists.
Paying For Services
Just like you, a model is an artist trying to make a living, so compensating them in some way is very important. Some models will work for prints of the shoot, called TFP or Trade For Prints, but unless you are a very good and professional photographer, you shouldn’t expect this. No model can fill his or her portfolio with reference shots for a book cover. But that does not mean they won’t be willing to trade for something else. If the model likes your work, you may be able to trade them for originals or prints. Otherwise, you should expect to pay your model with cash-moneys. Some models have a minimum rate, or minimum hours, but if this is the case they will tell you up front. If the model does not state a rate up front, you can make an offer. Offering less than an hourly wage that you’d expect to make yourself as an artist is a no-no. If you expect $20/hour for your art, then the model should expect the same for his or her time. Models at art schools make around $18/hour for clothed, and sometimes double or triple that for nude. If you’re asking for nude reference, do not go with an amateur. They will be uncomfortable and so will you, and your reference will not turn out well.
Setting Up
If you’re just getting reference shots, you probably won’t need more than an hour of time. When you contact the model, spend some time introducing yourself and your work. Be very specific about the project, the clothing you’d expect them to bring, the time you’ll need to take the shots. Don’t worry about apologizing if you don’t have a “real” photography studio or a “real” camera- models have worked in all sorts of conditions and your project will likely not be the strangest thing they’ve ever modeled for.
Set up for the model coming ahead of time. Have your lights ready and take a few shots of the space to make sure your camera settings are right. If you’re using props, have them nearby and ready to go. Lighting doesn’t need to be fancy or expensive, but you do want it to be right for your picture, i.e. if you need a glowing orb in the model’s hands, make sure you have a light that the model can hold and an extension chord. If you need the model in a cloak, make sure you have a blanket or sheet nearby so you can see the drapery.
During the shoot, don’t be afraid to direct the model if you’re not getting the results you want. The model wants you to be happy with the shot, and they won’t be insulted if you tell them something is not quite working right. Sometimes it will help to show them yourself how you want them to stand or the face you want them to make. If you need to touch the model to fix drapery or hair, ask permission first and be specific.
If you want, you can make your own model release form. You can find templates all over the internet, and you can edit them to specify the restrictions on how the images that you take will be used to make the model feel comfortable. Most models have signed a hundred release forms before, so this will be nothing new to them.
Other Complications
Pay your model once the work is done and not before. I hate to say it, but sometimes people who are not professional can be rather unreliable. I’ve heard some horror stories about models who never showed up, never responded, or were untruthful about their experience level or appearance. If something isn’t working out, walk away. If a model is reliable and professional but doesn’t deliver the results you want, pay them for their time. Don’t burn any bridges, of course, and always be polite and kind, but don’t feel obligated to use the reference you took if you feel that it will make for a bad final product.
Following Up
Keep your model in the loop about the project, and credit them on your website. He or she will be thrilled to see themselves as an illustration, and will likely cross-promote within their own network.
Do you have experience working with a model? Any advice or tips for others? Good experiences, bad experiences? Talk about it in the comments!