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I wrote my first children's book. I hired an illustrator and paid for them to illustrate my book so I can self-publish and create the book for my son. I drew out each of the 8 spreads how I wanted the scene to be and the illustrator brought them to life wonderfully. Besides an occasional extra detail the actual concept is exactly what I drew, just not in stick figure form.

Anyhow, the question of copyright came up halfway through the illustration process (we are both newbies) and they wanted to retain copyright. I was thinking that because I commissioned the work I would "own" the images. The images are very personal to me as I wrote the book for my son and they describe my fertility struggles.

My concern is that these images that I envisioned could end up being resold or made into cards or something? The illustrator said that it was usual practice for the illustrator to retain rights when a book is being self published. Who should retain the copyright to the illustrations in this paid for hire situation?

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According to copyright laws, the artist has the right to sell reprints of the art.

It is important to know that copyright nearly always rests with the artist, regardless of who owns the artwork. There are exceptions to this rule, such as work that has been specifically commissioned or completed during employment, in which case copyright stays with the commissioner or employer. Freelance artists working for a range of companies should keep this in mind.

However the copyright can be sold.

You need to be 100% clear what type of permission to print you have sold, and what restrictions on future commercial activity the sale might entail. If you do not understand the terminology used in the contract or agreement, you must not be frightened to ask for an explanation of its implications.

There are three common categories of sale for copyright and reproduction rights:

  1. Artists sell copyright outright. They have no control over the ways in which images are subsequently used, and the new owner of the copyright is free to sell licences as they see fit and to retain all the profits. (Sometimes, however, agreement is reached that copyright will be sold but royalties will still be paid to the artist. See below.)

  2. Artists sell copyright for a specific limited purpose; neither artist nor publisher can use the image for any other purpose. For example, if the image is published as a limited-edition print it can never be used for anything else, either by the artist or the print publisher.

  3. Artists sell reproduction rights, or a licence, for a specific limited purpose; the artist retains copyright and can continue to profit from it. For example, the artist sells the image for use on a set of table mats, but can then go on to sell it for other uses.

It is essential that you are clear whether or not you can sell licences in the > future, whether you have signed the right to do this over to someone else or whether neither party can do so (e.g., for most limited editions).

You may be thinking that the phrase "There are exceptions to this rule, such as work that has been specifically commissioned or completed during employment, in which case copyright stays with the commissioner or employer." means that you are the employer and get the copyright. Unfortunately this apparently relates mostly to companies that have the artist as an employee or under special contracts.

Basically, from the moment something is fixed in a medium (be it a canvas, on a piece of paper, in a photograph, or in a digital file), it is copyrighted to the person who created it. That would be your artist. Even if you’ve given them the idea for the painting, the execution of the final product is copyrighted to them. Copyright gives the artist the right to decide who can use their work and how, whether or not it can be duplicated or reproduced, and where and how it can be displayed.

From what I've read about reprints by artists, most of them will say at the start that they'll sell reprints later on, or ask permission to do so. It's considered common courtesy so the buyer knows what they're getting. For more money many will sell the copyright to the customer, or in the case of personal pictures of family members agree not to sell any reprints out of respect for the personal nature of the art.

Since you and the artist didn't discuss copyright issues at the start, this leaves the ball in the artists court. Maybe you can negotiate a new contract with them, but from my understanding it doesn't look good for you.

Hopefully someone with more knowledge can find a loophole or something I missed that can help you.

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    Thanks for the detailed answer Dan. What about this “work for hire thing” I keep seeing references? – sheribaby Mar 5 '18 at 7:39
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    @sheribaby Work for Hire is when you've hired someone for employment or ongoing jobs, not just a specific task. Anyone salaried is "work for hire," and that person doesn't own the copyright to anything produced for the employer. If you contracted the artist for a specific set of illustrations (even if you sign multiple contracts over many years for many sets), each set belongs to the artist, and you jointly agree what copyright is assigned to you each time. If you don't want the artist to reproduce that work, you must come up with an agreement to purchase the copyright from the artist. – Lauren Ipsum Mar 5 '18 at 14:25
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    I'm a writer and an illustrator - if you combine Lauren Ipsum's comment with Dan's answer you're spot-on. – GerardFalla Mar 7 '18 at 16:53

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