Saturday, December 24, 2016

It's About Time For Krampus?

©2016 Don Arday.
Many illustrators over the last couple of centuries have created versions of Santa. Fewer have illustrated the antithesis of Santa--the half-goat, half-demon creature known as Krampus. The word Krampus originates from the old high German word for claw (Krampen). In Alpine regions, Krampus is a mythical horned figure represented as accom-panying, or under the control, of Saint Nicholas. Krampus acts as an anti-Saint Nicholas, who, instead of giving gifts to good children, gives warnings and punishments to bad children.

Europeans have been exchanging greeting cards featuring Krampus since the 1800's. Sometimes introduced with Greetings from the Krampus. The cards usually have humorous rhymes and poems with Krampus often featured looming menacingly over children. More extreme bits of lore suggest that if children misbehave Krampus will eat them. 

Happy Holidays!


Thursday, October 27, 2016

Figuring The Cost Of Starting An Illustration Business

Many illustrators are unaware of what it will cost them to run an illustration business, while others may be aware but are in denial about it. Most illustrators find it akin to a visit to the dentist. However, a business owner, no matter what type of business they are in, must be aware of the hard cold financial facts behind their business operation. For those illustrators who want to borrow money to start a business, a financial forecast is a necessity, and will be required by a lender for a business loan.

© 2013 Don Arday.
Whether it is referred to as a business financial model, a cost-of-doing-business (CODB) analysis, a pro forma financial calculation, or a break-even expense assessment, a financial evaluation will be required by a lender for a business loan. And even more importantly, it must be known by the illustrator to be able to calculate what to charge for, excuse the pun, services rendered. For illustrators who intend to make a living, support a family, etc., knowing
what it costs to run a business is essential.

Those new to business planning are often surprised by costs they never thought to take into consideration. This is sometimes referred to as “hidden costs”, but that is really a misnomer, for a well thought out, comprehensive, business financial model has no hidden costs.

A thorough financial assessment has three parts: 1) Operating Expenses; 2) Income Stream; and 3) Earnings Projection. This article will focus on the operating expenses, which for illustrator’s who generally work alone, will not only include obvious overhead expenses, but also the less obvious personally requisite ones.

Operating Expense Categories

Studio/Office Rent

Illustrators rent studio space in commercial buildings, or may operate their businesses out of an in-home studio or office space. For commercial rental space the yearly cost is based on the entire sum of the lease agreement. So, if rent is $1000 per month, than the total yearly rental cost is $12,000. If operating a business in the home, the cost is based on the lease cost or mortgage divided by the percentage of space used by the business. If the mortgage is $1500 per month, and the business/studio takes up 33% of the square footage of the home, than the monthly rent is $500, or $6000 per year.

Utilities

Electrical, water, and waste disposal are all utilities with fees that should be considered for an accurate financial assessment, and depending on the needs of the business and the business location, utilities can have an impact on total yearly expenses outlay.

Phone

Similar to rent, if a phone or phones are used exclusively for business than the cost is equal to 100% of the phones and service plans. For example, a cell phone costing $210 including tax with a service plan of $60 per month, which includes taxes and fees, would be a yearly cost of  $930. If a portion of a phone line is used for business it can be prorated for the percentage of usage, so if the usage of the above phone and plan was 25% than the yearly cost would be $232.50.

Internet

Internet costs include the basic subscription to an internet service provider, but may also include fees for a cloud storage or database services, and fees for other online services and subscriptions provided for business needs.

Advertising/Promotion

Everything created for purposes of advertising or promoting a business must be included in a financial analysis. This would include the cost for printed materials such as stationery, any advertising placements, any form of paid online presence, such as a website, etc. This can also include fees paid to designers for any services they provided for promotion. One time fees and monthly arrangements should be combined to determine the total cost of promotion for the business.

Equipment

In the old days equipment for an illustrator meant things like easels, drawing tables, chairs, bookcases, flat files, art-o-graphs, copiers, etc. Today equipment not only includes the latter, but computers, digital tablets, scanners, printers, hard drives, and much more. The cost of which can be substantial. Equipment in general can be described as hard assets.

Studio Supplies

Business
Supplies are a bit more difficult to estimate on a yearly basis because they are often dependent on the volume of work and a specific type of project that will be produced by an illustration studio. Some financial assessments separate office/business supplies from certain art/material supplies. Essentially, business supplies are defined as consumable items, i.e., those that support doing business like staples, paper clips, copier paper, etc.

Resale
The other type of consumables are those that are purchased for resale, such as specialized prints, art materials such as paints, pencils, etc. As an operating expense both business and resale expenses are considered equal, but for a loan application and even tax reporting they have a separate status. Here is an example of a resale consumable. A dimensional illustrator buys Sculpey® modeling clay to produce a figure model that is then purchased by a client. Since it is incorporated into a product that is being sold, the Sculpey® is considered to be purchased for resale.

Dues/Subscriptions

Dues and subscriptions are a necessary expense of being in business. For an illustrator it may be membership dues for the Society of Illustrators, the American Institute of Graphic Arts, the Society of Illustrators L.A., etc. Publication subscriptions provide information, research, and resources for illustrators. This would include fees for tutorial services such as Lynda.com.

Postage/Delivery

No matter what service is used postage and delivery costs should be accounted for. This includes deliveries both to and from the business if paid for by the business. For example, shipping charges for art supplies ordered from Dick-Blick, fees for mailing promotional postcards, etc.

Transportation Expenses

Transportation can include auto mileage used for business and maintenance of an automobile. It can be based on a percentage, if only a portion of the auto usage is for business, or it can be based on the number of miles driven. The cost of auto insurance should be factored in as well. For those who use public transportation, like in New York City, the cost would be subway, bus, and train fares occurred in the course of conducting business. Airline travel can also be considered a business transportation expense if it is not reimbursed by a client or organization.

Cost Per Mile
The Internal Revenue Service issues a standard cost per mile for businesses. The 2014 rates are as follows: 56 cents per mile for business miles driven; 23.5 cents per mile driven for medical or moving purposes; and 14 cents per mile driven in service of charitable organizations.

Professional Services

The cost for services provided by a professional would include legal services, licensing fees, the services of a business accountant or tax preparer, a computer systems or web consultant, etc.

Research

Research costs are expenses associated with research for an illustration assignment. This could be in the form of many different things such as books and other materials needed for visual or informational reference. It could be admission to a zoo or museum, etc.

Insurance

Personal
Health insurance provided by the business is considered personal insurance, which includes life insurance plans, disability plans, and also health and dental plans.

Liability
Liability insurance can include insurance protection covering accidents or mishaps that occur on the business premises, or off premises while performing work for the business, as well as protection from theft, loss or damage to business property.

Payroll

Payroll means the amount of salary and benefits that are paid out to the employees of a business whether they are full-time, part-time, contracted labor, or temporary. And, depending on the size and scope of the business, payroll can be very simple if for a freelance illustrator who intends to work solo, or more complex as in the case of a 10-employee studio.

Operating Expenses Worksheet



Expense Category
Cost Basis/Monthly or %
Yearly Amount



Office/Studio Rent


Utilities


Phone


Internet


Advertising/Promotion


Equipment


Business Supplies


Resale Supplies


Dues/Subscriptions


Postage/Delivery


Transportation


Professional Services


Research


Health Insurance


Liability Insurance





Total Amount

































Monday, October 17, 2016

Creating An Illustration Business Plan

There is quite a bit of information available on business planning, but as we illustrators know all to well, the illustration business, is by it’s very nature is different than most other businesses. For one thing, it is neither a service business, nor is it a product providing business, it is both. So right off the bat, business models that only work exclusively for either services or products, which are most of them, are not a good fit for an illustration business.

© 2000 Don Arday.
The most standard business plan is a start-up plan, which defines the steps for a new business. It covers standard topics including the company, product or service, market, forecasts, strategy, implementation milestones, management team, and financial analysis. The financial analysis includes projected sales, profit and loss, balance sheet cash flow, and probably a few other tables. The plan starts with an executive summary and ends with appendices showing monthly projections for the first year.

A strategic plan, or a “hopes and dreams” plan, focuses more the big picture priorities to provide a framework for making smaller decisions. For the sole-proprietor illustrator, it is a personal plan that provides a definition of the business and a description of future aspirations. Detailed cost factors, equipment needs, space requirements, etc., are not the focal point of a strategic plan.

Do You Need a Business Plan?

If you intend to borrow money for your business, in addition to demonstrating evidence of financial stability, you will need a business plan. Depending on how you look at it, many illustrators do not need to borrow money to start a business. If you don’t have a need to borrow money, a business plan can be an informal one. I said depending on how you look at it, because many illustrators have already taken out a loan for the purpose of creating an illustration business, a student loan for their college education. After all, the debit created by the loan will factor into the illustration business operating costs in some cases for many years.

© 2000 Don Arday.
Even though a business plan may not be necessitated by the need for external financing, having one can be vitally important to how you will make decisions and conduct your business, so it is wise to have a plan. For illustration, the plan can be a strategic plan, a start-up plan, or a combination of the two.


The Strategic Plan Objective

A plan provides guidance. Guidance provides direction. Direction leads to a goal.

The Start-Up Plan Objective

A plan identifies needs. Needs lead to resources. Resources support work.

A business plan should be as simple as possible. It should be appropriate to the scope and circumstances that will constitute your interpretation of your illustration business situation, i.e., your business environment.

Even if you're starting off as a sole-proprietor, and you have your own resources for your business, an informal business plan can greatly improve the chances that your illustration business will succeed. With a plan, you will have a blueprint for building your business in well thought out stages. Special Note: Your business plan should be written for non-artists.

Illustration Business Plan Outline

1. Overview

A brief statement describing your business including location, market segment, etc.

2. Objectives

A statement should be provided for both short-term objectives (three years or less), and long-term objectives (five years or more).

3. Mission Statement

A mission statement to establish a business goal and how you intend to achieve it.

4. Key Advantages

A statement or list of the main areas of specialization or expertise you have to offer. What might make your business different from the competition.

5. Company Synopsis

5a. Type of Company
A company type identifies a prescribed business structure for purposes of legal and tax requirements and advantages. Types of companies include; a sole-proprietorship (single ownership), also called a sole-trader; a partnership (shared ownership); a limited liability company (LLC), a type of partnership; and a corporation. Each type has advantages and disadvantages and should be thoroughly researched as to which will work best for your business.

5b. Inventory
Furniture, equipment, materials, computer hardware, and software should all be included.

5c. Assets and Liabilities
Inventory items should all be listed as assets and given a value for a loan application if appropriate. Liabilities should also be listed, e.g., computer loans, rent, utilities, etc.

5d. Start-Up Requirements
A list of all business start-up needs with a description and the expenditures relating to them. This should contain all aspects needed for your illustration business such as office space including square footage, arrangement, internet, and utilities needs. Include equipment needs such as computers, software, hard drives, printers, scanners, modems, telephones, copiers, etc. List furnishing needs, for instance desks, file cabinets, chairs, easels, taborets, tables, bookshelves, etc. Expendable materials should also be listed and costs estimated. This would include computer, art, and office supplies. Detail the monetary requirements such as rent, utility fees, salaries, insurance premiums, and tax provisions, e.g., self-employment social security contributions, etc.

5e. Support Services
List any support services your business will rely on. Common support services for illustrators include digital output bureaus, photographers, models, delivery services, web hosting providers, etc.

6. Illustration Pricing Structure

An explanation of product and services pricing including the method used for charges, be it based on a lump-sum payment, or an hourly-wage formula or both. There may be a lump sum charge for the illustration/creative itself, and hourly-wage fees for supplemental services such as meeting time, and non-creative production fees.

7. Marketing Strategy

A statement outlining the plan for marketing your illustration business including media and means. Marketing includes all forms of promotion, both purchased and gratis. Purchased refers to those forms of promotion that you have to pay for, while gratis refers to those where the promotion has no cost.

7a. Purchased Promotion
Advertising in any form, either print or online; direct mail; identification and signage; a web presence that might include a website, portfolio hosting sites, a blog (paid), a Facebook subscription (paid), etc. Some less thought of purchased promotions include paid memberships in organizations; entry fees to competitions; and perhaps most importantly, portfolio fabrication and maintenance; etc.

7b. Gratis Promotion
Often overlooked, plans for encouraging client referrals, leveraging networking relationships, and capitalizing on reputation/acknowledgements should be stated.
The internet provides many opportunities for gratis promotion such as a free Facebook page, Google+ page, Twitter account, Linkedin page, Pinterest account, free blog page, membership in online groups, free portfolio sites such as Deviantart, etc.; and more and more new free promotional opportunities are constantly coming available. This continuous change makes gratis promotion somewhat less defined than purchased promotion.

7c. Targets
Targets equate to your intended customer base. It may be one or more specialized markets like publishing or a segment of a market like nature publications; a specific category of work like children’s book illustration; a defined location like the New York city area; a list of specifically sought after clients.


8. Finances

8a. Breakeven Estimation
A breakeven estimation identifies the actual operating costs of a business for the purpose of knowing when earnings represent actual profit.
       
8b. Pro Forma Estimation
If it is necessary to go into detail on the financial aspects of your illustration business, say to secure a loan, you may want to prepare “pro forma” statements for cash flow and profit and loss. A pro forma is a financial statement based on financial assumption or prediction, it can also reflect a financial development that will occur in the future, or has come into effect from the past. An example might be an expected tax break that will occur at reporting time. 


Tuesday, October 4, 2016

Work Made For Hire Consequences And Considerations

Although the idea of “work for hire” has been around since the mid-nineteenth century, it was first adopted as a doctrine in the Copyright Act of 1909, and is officially titled “work made for hire”. Only two possible obligations can constitute work made for hire. First, if the work was produced for an employer while the creator was under employment. And second, if a written, signed, work made for hire contract, is agreed to by the commissioning party and the commissioned party, i.e., the client and illustrator for work specially ordered or commissioned, and the work meets one of nine possible conditions. Without a written signed agreement, the creator would retain the copyright ownership for work produced, for our purposes, the illustrator.

© 2012 Don Arday.

Employee Condition

Work made for hire is almost universally a condition of any exclusive, full-time employment arrangement. The employer retains all rights to copy and dispose of as they wish, any creative output produced by an employee. This would include all work from idea development, thumbnails, sketches, comps, to finished art.

Non-Employee Condition

The non-employee provision for work made for hire, egregiously and unfortunately, began to flourish in the 1970’s among companies that commission creative works for mass media. In 1976, to protect the rights of the creator, an amendment to the work made for hire doctrine was made to restrict the ability of companies to take advantage of a commission arrangement. The doctrine now states: All three of the following distinct conditions must exist in order for a work made for hire contract to be legal.

1) The work must be specially ordered or commissioned.

So, use of a prior work of art would immediately not qualify as work made for hire, nor would use of a derivative creation based on a prior work of art.

2) The work must meet one of the following nine definitions:

• A contribution to a collective work
• A part of a motion picture or other audiovisual work
• A translation
• A supplementary work (to another author’s work, such as a foreword, chart, or table)
• A compilation
• An instructional text
• A test
• Answer material for a test
• An atlas

Of the nine definitions, two in particular involve illustration more than any of the others, and they are a contribution to a collective work” and “a supplementary work”. Almost all editorial work produced by an illustrator can be considered supplementary or contributing to a collective work. Magazine illustration is contributing to a collective work. And in most cases, book illustration is supplementing the work of an author. The definitions in both instances can be stretched to include just about any publication or broadcast illustration commission, such as those for advertisements, corporate brochures, web pages, etc. Nearly every commission could conceivably be a work made for hire, but only if agreed upon by the illustrator and the commissioning party.

A work made for hire agreement stating the terms of the arrangement must be in the form of a written contact signed by both involved parties.

Verbal word of mouth arrangements are not considered legally binding. Since a work for hire contract deals with the ownership and disposition of personal property, like purchasing or selling a car or a house, it must be in writing.

Consequences

It is vitally important to consider the following: If a work is "made for hire", the employer, not the illustrator or artist, is considered the legal author and owner of the copyright for the work. Many publishing houses and magazine conglomerates are adopting and enforcing “work made for hire” contracts. This may sound absurd, but bound by one of these “work made for hire” contracts, the original illustrator has no right to; control usage of the image; receive any payments or royalties generated by reuse or resale of the image; produce any derivative works based on the image; or use the image for any purpose without permission. Under a work made for hire contract an illustrator would even have to get permission from the contractor to use a copy of the illustration they produced in their own portfolio, web page, or in a gallery exhibition. For illustrators who work traditionally, producing a physical painting, drawing or sculpture, not only the image, but the object itself, becomes the property of the contractor.

Considerations

There are some types of illustration commissions where a work made for hire agreement may seem to be appropriate. Illustrated logos and trademarks are two examples where the client would need to have complete ownership of image copyright. Still, there are alternative types of agreements that may serve the illustrator better for this sort of work than a work made for hire contract. A "transfer of copyright" agreement may be preferable to work made for hire, and transfers can be exclusive or non-exclusive. In other words, limited by certain conditions made by the illustrator, or unlimited. More information is available at http://www.copyright.gov/circs/circ01.pdf.

Not all work made for hire contracts are alike, so it is very important to read the contract over very carefully. There is no such thing as a standard contract, even though the client may say that the contract is a standard one.

Factors that influence the appropriateness and legitimacy of a work made for hire contract center around how closely, in the course of producing the commissioned illustration, an illustrator conducted himself or herself similarly to a full employee.

The validity of a work made for hire contract is weakened by the following factors:

• If the illustrator worked in their own studio.
• If the illustrator used their own materials and bought supplies themselves.
• If the arrangement is short lived.
• If the illustrator determined their own working hours.
• If the illustrator was paid a flat fee and not by the hour.
• If the illustrator was not on the client’s payroll.
• If the client did not pay the illustrator’s taxes or social security.

There are also other individual factors that would indicate that a work made for hire agreement would be inappropriate, but the bottom line is whether the opportunity merits the sacrifice. There may be a work for hire offer that is extremely lucrative, or of such high profile, that through negotiation of certain conditions, it is worth relinquishing some ownership rights. And, the thought of having to challenge the arrangement in court may never become a reality.

Working With Contracts

There are two very important things to note, when presented with a contract. And they apply whether it is a work made for hire contract or any another type of contract. First, as was mentioned earlier, there is no standard for contracts. Second, an illustrator has the right to amend any contract they are presented with, and it can be as simple as crossing out any terms or conditions that are not agreeable, or editing the wording in the contract, or adding additional provisions to it.

Here’s one way to look at it. When a client presents a contract to an illustrator they wish to hire, think of it as an "offer" from the client. Whether it’s a work made for hire contract or not, it’s perfectly reasonable for the illustrator to present the client with a "counter offer" for their consideration by way of amending the original offer. A negotiation of terms can continue from that point. It is rare for a client to flat out refuse all changes the illustrator requested, but it does occur. When it does, increasing the cost of services may be in order. Be sure any contractual agreement made with a client for control of illustrations will be worth it.

For more information on contracts and agreements see theinformedillustrator.com posts, Illustrators Agreements & Contracts 1: Components, and “Illustrators Agreements & Contracts 2: Restrictions”.


Monday, September 19, 2016

Managing Digital Raster Resolution For Print


Terms

PPI – Pixels per inch
DPI – Dots per inch
LPI – Lines per inch
Bit Depth – The number of bits used to define each pixel

Definitions

PPI "pixels per inch" is the number of pixels per line per inch in a digital image. Image size is determined by establishing a horizontal and a vertical value for an image. For example, the display size on the monitor I am using is currently set to 1920 x 1080. The file size for a color image is determined by multiplying the horizontal and vertical pixel dimensions, then multiplying by the “bit depth”, then dividing that number by the minimum color bit standard of 8. Below is an extreme magnification showing individual pixels.

Pixel magnification at 1600%

DPI is the number of “printed” dots of ink per line per inch. DPI is the resolution of a printed illustration and is referred to as "dots per inch". Some sources consider PPI and DPI to be interchangeable. However, since PPI exists in a digital environment and DPI does not, I prefer to refer to them separately. A higher the DPI results in an image with greater detail provided the PPI of the original file is of an equivalent higher resolution.

LPI is used by printers and publishers in their production specifications when they convert continuous tone or digital images for commercial printing. Commonly referred to as “line screen”, halftones and color separations are classified using LPI. For instance, The Wall Street Journal prints images using a 100-line screen. Travel & Leisure Magazine is printed at 133lpi or uses a 133-line screen. Although printed images appear to the naked eye to have continuous smooth tones, they are made up of finite dots and spaces, which become visible under magnification. See below.

CMYK screen pattern magnification.

Halftone screen pattern magnification.

Bit Depth is the number of “bits” used to define a pixel. The number of bits per pixel determines the number of grey scale or color tones that can be represented in an image. A 1 bit per pixel image has two tones, black or white (2 to the power of 1). An 8 bit per pixel image has 256 tones (2 to the power of 8), and a 24 bit per pixel image contains 16.7 million tones (2 to the power of 24).

Managing Resolution

So how can you be sure that you’ve created your illustration at the proper resolution? Here are three simple principles to always keep in mind.

Principle #1 Think Ahead. 
Always check the production specifications for any publication, printer, website, or output device before you assign a size or resolution to a new document. 

Additionally, try to anticipate all possibilities you may want to use your illustration for in the future. For instance, you may want to use a web image you created at 72ppi for an 800 x 600 display space in an offset printed promotion that requires a 400ppi at 100% file. Many sources provide blanket recommendations for file size, such as “always use 300ppi at 100%”, but this could turn out to be insufficient. This brings up another rule of thumb.

Principle #2 Think Large.
Digital file size can be very changeable as long as the only way you change a files size is down, or make the file smaller. 

Changing a files size is referred to as “resampling” and artists, designers, printers, etc. all resample to comply with display and production specifications for publishing images. It’s important to understand the distinction between resampling and “resizing”. Resampling is changing the number of pixels in an image i.e., the file size. Resizing is changing the size an image will print without changing the file size/number of pixels.

Original image: 3" x 4" at 300ppi, or 3.09M.

Resized image: 9" x 12" at 100ppi, still 3.09M.

When you decide to resample an image down or reduce its size, programs such as Adobe Photoshop, discard data to reduce the file. This works because the data that was discarded was there in the first place. And unless you retain an original version of your file, the data that is discarded is permanently gone. Now, to increase the size of a file, you have to add data to it, but there isn’t any true data to add, so the software program will fabricate the missing data. This nearly always results in a visually perceivable quality loss.

Resampled image: 3" x 4" at 200ppi, now 1.37M.

Principle #3 Think Twice.
The rule of thumb when converting PPI’s to DPI’s or LPI’s is to think two to one. In other words, a publication using 150dpi or line screen will require a digital file that is at least 300ppi at 100% of the image dimensions. This applies when creating a file that will be converted to a color separation and printed on a commercial printing press.

Also, don’t forget Principle #1. I recently ran across a magazine that used a 150-line screen for images but required all files to be 600ppi at 100%. So if a file was created at the ratio of two to one, there was a chance it would be rejected by the publication. And remember Principle #2; “sampling up” would not be an option.

Halftones, Duotones, and Tritones

The resolution needed for halftone, duotone, and tritone printing varies from the resolution needed for a CMYK continuous-tone or “contone” image. Here’s a way to understand why. Consider that a contone image at 300ppi is made up of a 300ppi cyan channel, a 300ppi yellow channel, a 300ppi magenta channel, and a 300ppi black channel. So in essence, for an image setter, the 4-color image channels will combine to have 1200ppi in total. Since a halftone is a monotone image, and a duotone or tritone is a combination tone image, they contain less than four channels. So they have less density and require a higher resolution to make up for it. Here are recommendations for file resolutions.

Halftone (Monochrome)
1200ppi at 100% image size. (1200ppi x 1 color = 300ppi x 4 colors)

Halftone image.
Duotone (Two Color)
600ppi at 100% image size. (600ppi x 2 colors = 300ppi x 4 colors)

Duotone image.
Duotone swatches.
Tritone (Three Color)
400ppi at 100% image size (400ppi x 3 colors = 300ppi x 4 colors)

Tritone image.
Tritone swatches.


Laser and Inkjet Output 

Photo-quality ink jet printers use DPI resolution for classification purposes. Most printers print in thousands of dots per inch. 1200 to 4800dpi printers are typical. Good quality image prints can be achieved with files that have 140-200ppi resolutions at 100%, and high quality image prints are possible with 200-300ppi resolution files. Laser printers are generally thought to be higher resolution than inkjet printers.


Monday, September 12, 2016

Digital Art & Copyright Law

There are many misconceptions concerning the use and effects incurred by copyright law. “Copyright Law of the United States”, published by the US government is 351 pages long. Although much of the information doesn’t pertain to visual artists, that which does, is absolute, so it pays to know how copyright effects what we do as illustrators for our livelihood. Whether work is created digitally or traditionally the same laws apply. 


© 1995 Don Arday.

Copyrightable Art

All art is copyrighted from the moment it is produced or becomes a fixed copy. Copyright means the right to copy. “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression.” In the case of digital art, the display of a work on a monitor through a digital transmission constitutes the establishment of a copy. “A work is 'created' when it is fixed in a copy.” 


Notice of Copyright

Before April of 1989, copyrighted art had to be accompanied by a copyright notice. The word “copyright” or the familiar “©” symbol had to be displayed with the artwork. At the present, all art is copyright protected whether it contains the symbol or not.

Now that said, use of the word or symbol is recommended. The use of it serves as a warning to possible copyright infringers, in this way, it can authenticate and strengthen the protection of your artwork.

The copyright symbol is available on keyboards by the keystroke <option g> or <alt g>. It is also available through the Object Palette in many software programs. The correct form is: Copyright: Date(s): Author/Creator/Owner. The word “copyright, the symbol ©, or the abbreviation “copr” may be used.

Original Work

A “work of visual art” is a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author. 

For digital artists this still applies. A digital painting or drawing illustration created in Adobe Photoshop, Corel Painter, or any other image-based software, is considered a “painting”. Digital drawings created in Adobe Illustrator, Corel Draw, etc., i.e. vector illustrations are “drawings”.

Copyright Law

Copyright law in small doses falls into the category of “civil law”, meaning that your legal rights as the artist would have to be implemented though the initiation of a law suit. However, large violations involving 10 or more copies with a value of over $2500 is a felony, which falls into the category of “criminal law”. In the case of all art, to display a work publicly means to transmit it.

Derivative Work

The derivative work concept is perhaps the most misunderstood part of copyright law. The derivative work clause regulates the use of copyrighted reference material. For some illustrators this can have a great impact on the use of reference material. Copyright law supports the making of derivative works, but only by, or through the permission, of the copyright owner.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

It is highly advisable to exercise caution when using published work as a reference source. As alluded to in copyright law, every photograph, artwork, artifact, etc. is copyright protected.  And through the internet, gathering reference copies of images has never been easier.

Fan Art

Fan art is a form of derivative art. It is when another artist uses original characters or settings created by the originating artist. For instance, when an illustrator uses Spiderman as a straightforward character in a promotional illustration. This kind of use requires the permission of Marvel Comics. However the parodying or making fun of a copyrighted character or situation does not require permission of the copyright owner. This falls into the category of “fair use”, but it doesn’t necessarily mean you won’t end up in court. 

This is important to know. Fan art using settings and characters from a previously created work could be considered a derivative work, which means the copyright would be owned by the character/settings originator. So, if I did an illustration of Spiderman, I would not own the copyright of my own work! And, any display of my fan art Spiderman would be an unlawful distribution of a derivative work.

Fair Use

Fair use is the use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. If the reason for use of a copyrighted work falls under this description it is not an infringement of copyright. However, the following factors go into determining whether the use would be considered fair use: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Work Made for Hire

A “work made for hire” is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use as a contribution to a collective work; such as a movie, audiovisual work, a supplementary work, a compilation, an instructional text, test or answer material, or an atlas. 

A “supplementary work” is a work commissioned for publication to support the work of another author. Illustrations commonly fall into the category of supplemental work. Examples of supplementary works by illustrators would be non-self authored commercial editorial illustrations, commercial book illustrations, corporate illustrations, etc. Nearly every commission could conceivably be a work made for hire, but only if agreed upon by the illustrator and the commissioning party. All parties must expressly agree in writing to the “work made for hire” designation. 

Watch out. It is vitally important to consider the following: If a work is "made for hire", the employer, not the illustrator artist, is considered the legal author and owner of the copyright for the work. Many publishing houses and magazine conglomerates are adopting and enforcing “work made for hire” contracts. This may sound absurd, but bound by one of these “work made for hire” contracts, the original illustrator would have to get permission from the contractor to display or publish the illustration. 

VARA

VARA also known as “The Visual Artists Rights Act of 1990 or Statute 106, exclusive rights in copyrighted works. VARA protects the “moral rights” of the artist as it relates to his or her creation. Only “works of visual art”, a painting, drawing, print or sculpture, existing in a single copy, or in a limited edition of 200 copies or fewer qualify for VARA benefits. VARA gives the artist creator the exclusive rights to do or authorize the following:

Concerning the Work (Statute 106)
The right to reproduce the copyrighted work in copies; to prepare derivative works based upon the copyrighted work; to distribute copies the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; and in the case of pictorial, graphic, or sculptural works, to display the copyrighted work publicly.

Concerning the Creator (Statute 106A)
Titled the “rights of attribution and integrity”. The right to claim authorship of a work; to prevent the use of one's name on any work the author did not create; to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation, and to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation. Authors of works with "recognized stature" may prohibit the work from being destroyed. These rights persist for the life of the author. 

Copyright Registration

Copyright registration serves to verify the ownership and date of creation of a work of art with the authority of the United States Copyright Office. Registration of a work does not constitute a “granting of copyright”. Copyright is automatically granted when the work created and displayed. However, copyright registration establishes a public record and adds proof of copyright ownership to aid in fighting copyright infringement.

The US Copyright Office provides standardized forms. The web locations are linked below. The basic registration fee is ($65) for a single work or a group of works. Two or more individual works can be registered on one application with a single filing fee under certain circumstances, see below. Electronic filings made online through the Electronic Copyright Office or “eCO” are available at a reduced fee for ($35).

A group of unpublished works can be registered as a collection if all the elements of the collection are assembled in an orderly form, the combined elements bear a single title identifying the collection as a whole, the copyright claimant for each element in the collection are the same, and all the elements are by the same author or, if they are by different authors, at least one author has contributed copyrightable authorship to each element. All of these conditions must be met and works registered as an “unpublished collection” will be listed in the records of the Copyright Office only under the collection title.

For published works, all copyrightable elements that are included in a single unit of publication and in which the copyright claimant is the same can be considered a single work for registration purposes. An example would be a children’s book with multiple illustrations.

Sources and Resources

US Copyright Office Website
Single Visual Arts Copyright Registration Form VA
Single Visual Arts Copyright Registration Short Form VAS
Group Visual Arts Copyright Registration Form GRVA
Electronic Copyright Office System
Copyright registration for Works of the Visual Arts
Copyright Office Fees
http://www.copyright.gov/circs/circ04.pdf


The information in this post is provided for educational purposes only. It is not intended to replace or substitute for professional legal advice.