Tuesday, December 25, 2012

Holiday Illustration Is Fun

It seems that we sometimes forget the happiness that drew us to want to become illustrators. For us illustration is fun. And each of us in our own way, has found ways to have have a good time while we exercise our craft. Take the holidays for instance. Who among us has not looked forward to producing an illustration for a holiday special occasion. And to think, we actually got paid to do it. It's a chance to execute one of those 50 great ideas we have thought of over the years. Ah yes, but which one. After all, the client is only going to want one great idea even though we could easily dazzle them with several dozen. So how to decide. It seems that making the right choice of which illustration concept to present can take more time than it will take to actually produce the image. And it has to be the right choice. There are so many things to consider. And it will be a major illustration, even if it only ends up as wrapping paper. The image will last forever, and we may become well known from it. After all, holiday illustrations tend to be seen by everyone, everywhere, and they will always be remembered. Even a thousand years from now. A successful holiday image may make or break our reputation. We all remember the He-Man and She-Ra Christmas Special fiasco with the illustrated kazoos and feathered hats. And that's only one of thousands of examples of imagery gone wrong. Also, to make matters worse, we all know that a holiday illustration is the Super Bowl for illustrators, our Stanley Cup, our World Series. If that isn't stress, I don't know what is. What a predicament. Why did we get ourselves into this situation in the first place. At first, everything seemed fine, but it is not fine, no, it's anything but fine. It's not fine by a long shot. It's an unmitigated disaster of epic proportions, and we haven't even started the job yet. In fact, we are still waiting to get a holiday commission. And to top it all, it's the one job we want more than anything, more than any other we could possibly hope for.

Santa Claus                  Saint Nicholas            Father Christmas

© 2012 Don Arday.

Enjoy the Season! Best Wishes and Happy holidays!

Tuesday, December 18, 2012

To Work For Hire or Not

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.


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.


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”.

Tuesday, December 11, 2012

10 Steps To Presenting Illustration Ideas Successfully

So you’ve been commissioned to produce an illustration for a client. You’ve passed the first barrier, which was to attract a client to award you an illustration assignment and now the assignment is about to begin. And so is the challenge and thrill that comes with the potential of creating a great Illustration. Now in the end, the client will have their great illustration, but how much worry, anxiety, stress, sleepless nights, extra time, revisions, and blood, sweat and tears will it take to make that happen. Here is some advice to make the process go more smoothly.

© 2012 Don Arday.
Phase 1 -- Preparing

#1 Read Your Client Relationship

There are clients that know how to be great clients and there are those that have no idea what being a good client means. And sometimes it’s hard to tell which is which, especially when you are working with a client for the first time, or only once, as many of us illustrators do. It’s very important to learn a few things about your client. It can save you a large amount of time in the long run.

It is important to consider what you already may know about the client. This relates to the circumstances of the commission itself. Will it be a tight deadline? Is the job negotiation difficult? How quickly are you receiving responses to emails and phone calls? How long is it taking to be awarded the job? Are you having any conference calls during the process?

#2 Consider the Assignment Origin

The more levels of people there are between you and the client, the more difficult it will be to get accurate feedback and approval for your assignment. So, working for an advertising agency will present the most difficulties. The next difficult group to work for is a graphic design or media design firm. And the easiest group to work for is a publishing company. If a publishing company hires you then you are working for the client directly.

It is important to know the pecking order for your assignment. Not only to know how to sell your concept, but also to know how much to charge for your time. Sometimes a pecking order can get quite complicated. For instance, a high profile client can hire a marketing and communications firm, who then subcontracts an advertising agency, who sub-subcontracts a design firm, who sub-sub-subcontracts you. I have personal experience in many of these situations.

#3 Get the Right Assignment Input

There is truth in the saying “garbage in, garbage out”. As an illustrator, you know this is spot on when it comes to getting reference for your illustrations, but it is also accurate concerning assignment input. Incomplete, contradictory, biased, or just plain bad input can make coming up with an illustrative idea not just difficult but a waste of time, and in most cases, your time. This can be avoided, but it will require you to take an active role by guiding the input discussion. 

It’s up to you to make sure you get the information needed to allow the assignment to go smoothly. And, here’s an insider tip. Your client or their representative will respect you for it, and expects this from an experienced illustrator doing business. Clients tend to place talent such as illustrators, graphic designers, and photographers into a separate non-business box. Even the best clients assume that artists are driven by inspiration and self-indulgence. And to some extent we are, which explains why we have the talent and skills to creatively communicate visually.

Here are some preparatory questions you can ask your client.

Concerning Demographic
Who is the audience for the illustration?
Where will the illustration be seen?

Concerning Formatting
What will be the use(s) for the illustration?
How will the illustration be reproduced and by whom?
What are the production specifications for the illustration?
Are there any objects such as logos, or products that must be in the image?
Are there any color restrictions associated with the subject or product?

Concerning Conceptual Content
What is the purpose for the illustration?
What is the message of the illustration?
What personality, mood, or feeling should the illustration communicate?
How should the audience react to the illustration?
What qualities do you think I bring to the assignment?
Are there any ideas that should be avoided?

Concerning Idea Presentation
Is there any preference for the style of sketch presentation?
How many sketch ideas are expected?
Who will be reviewing the sketch concepts?

Assuming a doctor patient type of relationship with a client will allow you to best diagnose their needs and preferences while giving them a voice in your process. This team building approach creates a comfort level for a client. Another way to look at it is to take a private investigator’s approach to solving a problem. This approach involves researching beyond the word of mouth input of the client and calling on your own experiences concerning the subject of the assignment. You may have personal insight into the subject, audience, or venue for the illustration.

At this point, now that you have a clearer idea as to what the assignment will entail, you should decide whether to accept it based on the type of input you have gathered. Not all potential illustration assignments are suited for all illustrators. Quite often, trouble begins when illustrators agree to take on an assignment that is a poor fit for them. It may be due to stylistic differences, a method of working, a particular subject matter, a time frame, or other reasons.

Phase 2 -- Presenting

#4 The Idea Presentation

Understand that this is the most important phase in the evolution of an illustration assignment, and it is so important to get it right. The effort you put into your idea presentation will determine the course for the rest of the project. Your client will either feel secure about their decision to have hired you and allow you to proceed with their blessing, or they will have second thoughts, and will try to take over your job of coming up with visual ideas. This will happen to fill in any blanks you left by them not understanding your concept for the finished illustration. Unfortunately, this happens all to often, and it’s not a reflection on the quality of the idea presented, but on the presentation itself. Here’s why.

Even though you did all the necessary research and gathered good input by properly interviewing the client, you didn’t consider the following points when you presented your ideas.

#5 Think Like Your Client

Your client is solely devoted to making the project a success. Their job standing and company status depends on it. So no matter how much you think the client is against you, and “has it out for you”, they don’t. Clients just want a job well done. If they perceive gaps in information caused by a misunderstanding or poor communication, they will step in to fill them, which sometimes results in them stepping on your creative toes. When this happens it jeopardizes the quality of your illustration and the clients overall project. So try to understand how your client thinks. Ask yourself, if you were the client, how would this idea or sketch impress you.

#6 Think Verbally

The number one mistake illustrators make when presenting ideas to a client is thinking that clients are visually literate, and that they had the same kind of background, college training, and personal likes and dislikes that illustrators do. Clients are not visual like you. Failing to recognize this, there are illustrators who have many years of experience in the field that still struggle to sell a concept.

Even if you are working with an art director or designer don’t assume they will pick up on the nuances and clever use of visual elements that appear in your sketches. You have to tell clients what you are showing them.

#7 Make a Visual and a Verbal Presentation

Upon attending an illustration conference, and getting into a discussion about working with clients at dinner, I was astounded to find out that several of the illustrators I was talking with, high profile illustrators, never thought of sending verbal explanations for the sketches they presented to clients. What wasn’t astounding to me was the percentage of revisions these illustrators were asked to do to their sketch concepts by their clients.

Although illustrators are taught not to describe ideas verbally, but to sketch them out, the opposite is actually true when it comes to communicating and selling concepts to clients. Clients with no art background understand the verbal description of an idea better than a sketch of it. Of course it some times depends on the sketch, but remember most clients didn’t take art appreciation or sit through 18 credit hours of art history courses.

As a side bar, it should go without saying that you should not present concepts that 1) you would not want to produce, or 2) are beyond your ability to produce. Remember, while working on the clients behalf, the presentation phase is where you have the ability,  and the right, to influence the outcome of the assignment. Even though the client may suggest a certain direction for an idea, it's important to exercise your creative license. After all, you were most likely hired based on samples of work that you produced for other clients, so it is not unreasonable to educate the client about how those examples became successes.

#8 Help Someone Else Sell Your Idea

It is very rare for an illustrator to come face-to-face with the client to advocate for their ideas. In nearly all cases a “middleperson” will present your proposed ideas to the client. And even though the middleperson may be an art director, designer or art rep, and what goes on during that presentation is totally out of your control, you can influence the outcome by providing a “script” for the middleperson. Now, don’t think that you will be able to orchestrate the actual decision, but a written statement about the idea, pointing out visual elements, and explaining your concept and rationale for the sketch, can go a long way to help your middleperson win over a client to your way of thinking, and to approving your idea.

#9 Present Understandable Sketches

Clean well-crafted sketches will strongly support your idea. It’s important that all of the elements in your sketch be well defined. Presenting a refined sketch will go along way towards preventing a request for a revised one. Although us illustrators are familiar with looking at rough sketches, they are too difficult for non-visually trained people to interpret. And, roughs don’t appear to display the time value that a client would expect for a presentation that they are paying you well for. You will definitely want to avoid embarrassing questions about your sketch like “what is this thing over here”, and “is that an adult or a child”.  It may sound farfetched, but it happens all to often, and when it happens it is hard to instill confidence and trust in your client. This will lead to a lot of extra work for you.

#10 Leave Emotions Behind

It’s all right to defend an idea as long as you don’t appear to be defensive. Clients will ask you questions about your sketches. It doesn’t necessarily mean they don’t like what you are presenting. And, they are on your side, because there is only one side. Clients want you do your best. They will evaluate you as much as they do your sketches. They want to know that you are engaged and have a true commitment to their assignment. When you do great work, they succeed and will promote you and your work.

Practicing a well thought out strategy for generating and presenting your illustration ideas will not only greatly reduce or eliminate the need for revisions, but will increase your chances of completing your best work for yourself and your client.  

Tuesday, December 4, 2012

Who Hires Illustrators And Why

There are many people in the communications industry that hire illustrators. The various job positions of these people and their level of authority and responsibility on assignments is important for illustrators to know for several reasons. Knowing who to approach for work, who recommends illustrators for assignments, who determines the suitability of an illustrator for an assignment, who originates an assignment, who guides the assignment process, who has creative/artistic authority for the work, who presents sketch concepts to the client, who represents the work on behalf of the illustrator, who negotiates the pay scale for an assignment, etc., are all very important.

© 2012 Don Arday.
These days, illustrators produce work for wide range of industries. Each of these industries has their own flavor of types of jobs such as creative director, designer, etc. This article will focus on the more traditional initiators of illustration assignments. However, there is a great deal of similarity when it comes to job content and responsibility across many other industries that utilize creative/artistic teams, such as the film, gaming, public relations, fashion, and broadcast industries to name a few. And people in similar job positions in those industries also hire illustrators.

Advertising Agency

Creative Director

The creative director position usually represents the top-level creative position in an advertising agency. Many creative directors are also vice presidents of their respective companies. A creative director is essentially the person who guides the overall direction of the creative content for clients as well as the agency. The creative director maintain a consistency of quality, feeling, personality, and style exhibited in the final work the agency produces as a whole by setting expectations for the creative team. A creative director is responsible for the creative output of the agency, management of the entire creative staff, client relations, determining project timelines, and aspects of the agency budget. The creative director is the presiding judge over concept development, layout and design, copywriting, and final production for every item the agency releases for use in media.

Creative directors can, and often do, assume the job roles, either in total or in part, for other members of the agency creative team. For instance, the creative director may decide to write the copy for an ad campaign and create individual ad concepts. And even though they are high up within their company, they can directly hire an illustrator for an assignment.

Art Director

The art director coordinates all the visual aspects that go into producing the components of an advertising campaign. The art director reports directly to the creative director for assignment guidance and approval of work. Art directors are responsible for the concept, layout, design, and visual style of print and graphic media including choice of typography, color scheme, picture element, and visual content. In addition, an art director involved with broadcast media assumes the added responsibility of styling and coordinating the components that are used in a time and motion based production such as a television ad or radio spot. The art director also oversees all collateral materials that might accompany an ad campaign such as brochures, direct mail, point of sale displays, etc.

To do all of this, an art director primarily directs. As opposed to being a producer, an art director serves as a decision-making coordinator of people and efforts that go into creating an ad. Art directors commission other professionals from a range of fields to produce the parts of a project that the art director then pieces together.

Art directors hire design firms to aid with the design components of a campaign, photographers to execute photography concepts, film and animation firms to execute time-based concepts, modeling and talent agencies to provide people subjects for concepts, stylists to acquire objects or choose locations for an ad production, and most importantly, illustrators to create finished art. Additionally, illustrators because they possess superior drawing skills, are hired at interim stages to aid in drawing concepts for presentation to clients, e.g., storyboards, ad layouts, character concepts, scenic drawings, etc.

Art Buyer

Many high volume agencies have a job position called art buyer. The art buyer researches and maintains a database of individuals and firms that create visual art. An art buyer acts as an internal or external consultant to an art director and/or creative director by recommending the talents of illustrators, photographers, animators, and artists. In addition to making art suggestions to the creative decision makers, the art buyer is the main point of initial contact with visual talent for the advertising agency.

Art buyers may work on recommending artist talent for assignment work or they may act to purchase works of art on behalf of an advertising agency or client. An art buyer is also involved in aspects of art workflow and financial budget.

Account Executive

An account executive (AE) serves as both as a salesperson of agency services and as an ambassador for the agency relationship to a client. The account executive oversees the administrative aspects of an advertising campaign. The AE coordinates the work of several divisions within the agency including the creative team, the marketing team, the media placement team, and the production staff. The AE works very closely with the creative director and art director to supply client input and feedback on the creative effort.

Although much less frequently than an art buyer or art director, an account executive may make recommendations, or forward those made by the client, concerning the choice of artistic talent, including illustrators.


© 2012 Don Arday.
Essentially an author of advertising content, the copywriter is responsible for writing all of the verbal components or “copy” in an advertising campaign. Copywriters also write scripts, marketing plans, creative strategy proposals, and other collateral materials related to an advertising campaign. A copywriter generates ideas and creative concepts. In many cases the copy content will drive the entire visual concept development of a campaign. In many ad agencies, copywriters are teamed up with art directors to jointly solve creative problems.

Due to the fact that copywriters are also involved with formulating campaign concepts, they are often consulted in regard to visual styles and talent choices. So, occasionally they weigh in on the hiring of an illustrator.

Graphic Design/Media Design Firm

Design Director

The design director is the design firm equivalent to an advertising agency creative director, and many studios use the title of creative director instead of design director. The design director in some design firms is also the firm’s owner. Design and media firms tend to be smaller in size and employ less staff than ad agencies. A design director usually has a strong background in the fundamentals of graphic design, concept visualization, ideation, visual communication, design production, etc. Design directors can draw and present ideas and visualize ideas digitally. Like creative directors, design directors influence the quality, feeling, personality, and style exhibited in the final work of the firm.

The design director oversees the creative output of the studio by managing the artistic output of the creative staff, Like an ad agency account executive, the design director also directly interacts with clients, sets project workflows and schedules, and determines project budgets including design firm fees.

Although design directors most often do not create the visual elements for the projects they work on, they are aware of the available pool of talent and hire freelance illustrators to produce art and picture elements that are complex and call for very specialized skills and expertise. Most often, they will make a recommendation to the designer who will then follow through by contracting the illustrator.

Senior Designer/Designer

Designers and senior designers work under the supervision of the design director and essentially perform the same functions. The main difference between senior designers and designers is that the senior designers generally deal with higher profile clients. They also handle more complex and difficult assignments. Designers are on par with ad agency art directors when it comes to responsibilities, and some design firms use the term art director in place of designer. One difference from an ad agency art director is that designers do create and produce visual designs that are incorporated into their assignments. Designers utilize graphic design practices, ideation, concept visualization, typography, and design production to produce work. The designer is also responsible for seeing the work though to completion, be it brochures, signage, packaging, identity design, etc., the list of assignment types is quite extensive.

Designers will often create stylized visual elements for the projects they work on. For more complex forms of art they hire freelance illustrators who are chosen for their particular abilities and style.


Design firms employ or contract writers to create the text for the work they produce. The working relationship between a designer and a writer can be a close one, but more often than not, the text and design are developed independently, one following the other. From time to time, writers are consulted about the visual direction of the work and who will be hired to produce the illustrations needed.

Publishing Company


The editor is the person chiefly in charge of controlling the content of a publication. This includes all visual content as well as editorial content. Although less of a creative person in a visual sense, the editor, never the less, has the right of approval for the visualization of the publication. This includes the layout and design, the use of typography, and the choice and conceptual content of visual elements, i.e., illustrations, photographs and graphical details. An editor establishes the editorial policy of the publication by determining its size, content and style. The editor sets publication workflows and schedules, and oversees the publication budget.

Editors work directly with a writer or staff of writers, even if it is a freelance writer. With regard to illustrators, the editor works indirectly through an art director or designer. However, the editor must approve the hiring of an illustrator or photographer, and the work they produce for the publication. Many editors are familiar with art talent, and will suggest the art director hire a particular illustrator.

Art Director

The art director at a publishing company is usually in charge of steering the visual aspects of a publication, determining the visual style, i.e., the look and feel of the publication, and content of visuals. The art director plans the use of space in a magazine or book such as the number of pages to be devoted to a story, article, or feature; and the general scale of, and number of, visuals to be used to accompany the text.

With regard to visuals, the art director acts as a liaison to the editor for all proposed visual ideas and sketches produced by freelancers or staff artists. Possessing the most familiarity with the styles and abilities of freelance talent, the art director chooses who will create the visuals needed for the publication. In book publishing, it is most commonly only one illustrator or photographer, but in the case of a magazine publication, a single monthly issue can provide freelance employment for dozens of illustrators.


The publication designer works very closely with the art director to produce the publication, and in some smaller publishing houses and magazines, the designer and art director are one in the same person. The designer takes over where the art director leaves off by determining the relationship of the visuals to the text, the style of typography, and graphical elements to be used to execute the layout of the publication. In most cases the layout decisions such as size of visuals, their pictorial orientation, and the number of images needed are predetermined before freelance talent is contracted. In this respect, designers also play an important role in selecting and contracting illustrators.  

Tuesday, November 27, 2012

Illustrators Agreements & Contracts Part 2: Restrictions

Contracts that are generated by clients will always present a list of restrictions. Expect that clients will be looking after their own interests. It is important to be aware that restrictions can be negotiated, and if acceptable to all parties, be altered.

© 2012 Don Arday.
Contracts written and presented by illustrators should not be so self-deprecating. Just as clients will be looking after their own interests, it is important for illustrators to protect theirs. Some of the restrictions below benefit the client while others benefit and protect the rights of illustrators.

Illustrator Provisions

Relevant Illustrator Activities

This relates to the “expertise provided” component in Part 1. It is usually more specific and quite often works positively toward the decision to hire an illustrator. For example: When being considered for an illustration assignment with Marriott Hotels, a successful track record of illustrating for the hospitality industry, specifically for Motel 6, would be relevant, and would be a plus.

Illustrator Conflicts of Interest

Many contracts require an illustrator to disclose any potential conflicts of interest. Conflicts can occur through a personal relationship. For example: Being a blood relation or spouse of a person directly involved with the illustrator’s assignment. They can also occur due to a business relationship, either past or present. For example: An illustrator hired to produce work for Dell Computers has also recently been hired to produce work for Hewlett-Packard. It is important to note that disclosing a potential conflict of interest may not necessarily result in prohibiting the illustrator from being hired for an assignment. Conflicts can also be related to a client’s activities or a product itself. For example: I know of many illustrators that will not produce work for tobacco products, but they might for a non-tobacco company affiliate. Disclosure of potential conflicts of interest can avert consequences. See below.

Illustrator Insurance Responsibilities

Somewhat rare, but still worth mentioning, are activities that might call for an illustrator to carry special insurance. For example: Situations that pose a treat of injury such as having to climb scaffolding to paint a large mural.

Illustrator Legal Responsibilities

The illustrator’s legal responsibility is now a standard clause in nearly every contract, and it is mainly due to the improper use of copyrighted materials by illustrators for image reference. Clients seek to protect themselves against legal actions that could result from an illustrator infringing on the rights of other copyright holders, see “10 Digital Art Copyright Definitions” posted 9/11/12. Legal and monetary responsibility for any copyright violation falls squarely on the illustrator. So it is very important to be aware of copyright statutes concerning rights of ownership and the creation of derivative works.

Illustrator Outsourcing

This provides clarification for circumstances where an illustrator needs to outsource certain types of services. In most cases, where copyright ownership issues may arise, the client hiring the illustrator may need to grant permission for outsourcing to occur. And, the client or the illustrator may need to have an agreement or contract in place with the outsourced party.

Illustrator Employment Arrangement

Under most circumstances an illustrator is hired to produce work for a limited purpose. While doing so, the illustrator retains a separate status from that of a company employee. This separate business status allows the illustrator to retain the copyright ownership of the work produced.  Although a “work-made-for-hire” agreement may be for a single assignment, it is equivalent to being hired by a company as an company employee. This means that under a “work-made-for-hire” arrangement, the copyright ownership of any works produced would belong to the hiring client, not to the illustrator. The client could then control and profit from the use of the illustrations. The client could reproduce them, or create derivative works, all without having to compensate, or even credit the illustrator, see “10 Digital Art Copyright Definitions” posted 9/11/12.

Illustrator Intellectual Property

The intellectual property right refers to the ownership of the copyright of an illustration. Simply put, the right to control the usage of an illustration. The illustrator is the copyright owner, which should be plainly stated in an agreement or contract -- unless the copyright was sold as a buyout, assigned over to another party, or the work was produced under a work-made-for-hire agreement. For more information on intellectual property see “Copyright Intellectual Property” posted 11/6/12. For more information on work-made-for-hire see “10 Digital Art Copyright Definitions” posted 9/11/12.

Intellectual Property Future Use
Future use should be addressed. This relates directly to the copyright ownership. Illustrators should retain the rights to future use of the images they create, including the right to create derivative works from their original illustration. Unless specified by an image “buyout” or a “work-made-for-hire” employment arrangement, the illustrator shall retain the copyright to the illustration(s) created for a client. This means the illustrator has the right to resell the illustration, create other illustrations based on it, and use it for any form of self-promotion they wish.

Derivative Intellectual Property Ownership
The ownership of any derivative works based on illustrations produced for a client should be clarified in an agreement or contract. Relating to copyright ownership, derivative ownership conditions that are noted in an agreement, provide additional clarity and protection for the illustrator if an illustration is altered and used by a client without the consent of the illustrator.

Client Provisions

Client Intellectual Property Rights (Non-Illustrator)

Some illustration assignments become part of, or are absorbed by, the intellectual property rights of the client. There are many instances where this can occur.  Common ones involve illustrated trademarks, service marks, or illustrations applied to inventions or patents. In these instances, through contractual agreement, the copyright ownership of the client or company will supersede the copyright of the individual creating the work.

Client Confidential Information

Illustrators are considered consultants by the clients that hire them, and by the very nature of an illustrators work, clients will often provide confidential information to illustrators in the form of project input and company inside information. Clients will require that illustrators, i.e., the image consultants, not disclose any proprietary confidential information.

Client Confidential Information Content
Confidential proprietary information can take many forms such as product information and development, marketing or communication strategies, content of publications, research and development activities, company policies, inventions and technical information, trade secrets, management and financial strategies, etc.

Client Confidentiality Timeframe

The timeframe of confidentiality depends on the type of project and the type of information involved with it. In the case of an editorial illustration for a magazine, the confidentiality timeframe usually ends when it is published.

Client Property Handling

A property clause is to address the handling of property provided to the illustrator for use during the course of an assignment. This provision defines the date, cost arrangement, and method of return of company property.

Client Work Restrictions

Related to “Illustrator Conflicts of Interest” and “Client Confidential Information”, it is not uncommon for a client to limit an illustrator from providing work for a third party, usually a direct competitor, while the assignment is being produced and/or for a period of time afterwards. Through disclosure of prior working relationships with other competitive clients, an agreement limit can be appropriately managed. Agreements and contract limitations should never extend beyond what is reasonable. It is not uncommon for illustrators to be able to work for a third party, with the understanding that they be bound by an agreement or contract terms of confidentiality. Especially if the type of work done is dissimilar.

Client Non-Compete Restriction

Similar to the concept of an illustrator work agreement, a non-compete restriction goes one step furthering restricting the employment possibilities of an illustrator. It specifies that the illustrator may not become a competitor to the client. Although seemingly obvious and avoidable, illustrators should consider future opportunities that could arise before agreeing to any non-compete provision. Non-compete clauses demand careful consideration.

Here is a relevant story. A freelance illustrator completed a storyboard assignment for toy product commercial for a local ad agency. The agreement had a limited work restriction, so the illustrator could not produce a storyboard for another toy company for one year, but the agreement signed for the storyboard also contained a non-compete clause. Soon after, the illustrator was offered a staff position by a different ad agency in town, and because that ad agency had an account with a toy company, the illustrator could not accept the position without a special negotiation with the first company.

Client Restrictions Timeframe

One or more specific restrictions can be bound by a timeframe. Alternatively all restrictions can fall under the timeframe for the entire agreement or contract.


Breach of Confidentiality

In some agreements or contracts, clients reserve the right to take action against a consultant, i.e., the illustrator, for any disclosure of confidential information. Rarely limited by specification, clients prefer to leave the ramifications of a confidentiality breach, and course of action in dealing with one, open ended.

Breach of Contract

Clients reserve the right to take action against a consultant, i.e., the illustrator, for a breach of contract. This could involve a breach of one or more components, provisions or “terms” of the contract.

Tuesday, November 20, 2012

Illustrators Agreements & Contracts Part 1: Components

Part 1 will focus on the basic components needed to create or interpret a contract or agreement. More and more, these documents have become a required piece of an illustrator’s assignment. This is an article intended to help illustrators deal with agreements and contracts.

An "agreement" is most often in the form of a contract, and a contract is an arrangement between two or more entities that creates a legal obligation to do or not do a particular thing or things. Although many clients have contractual agreements they present to illustrators when initiating a job, illustrators should also consider developing their own contract to address the issues that take place in the course of an assignment. Although the component explanations below may be long, in practice, each section of an actual agreement or contract may only be a sentence or two.

© 2012 Don Arday.

Agreement Title

The agreement title can be just about anything, but it is best if it contains the project title. For those who use a job numbering system, it can contain a job number. For example: PH0012 – Parkland Hospital Pathology Brochure Illustration.

Project Description

This should be a concise description of the work to be provided. For example: One full-page, full-color, cover illustration, and two full-color, interior half-page illustrations for the 2012 Eaton Corporation Annual Report to Shareholders.

Usage and Leasing

Usage, as it implies, defines any limits that are to be placed on the publication or distribution of the illustrator’s work. Usage is a vital component in a contract or agreement. Although created for an individual client and a specific use, in most cases, the work is being “leased” by the client for a specific limited term. There are also non-lease situations such as “buyouts” and “work-made-for-hire”. See the Intellectual Property component below. Any conditions of the usage and usage term should be spelled out in writing. Usage limitations can be based on quantity, time, location, or any combination. Here are examples.

Quantity Example
The Parkland Hospital Pathology Brochure Illustration usage is limited to an initial print run of 5,000 copies. So, reprinting the brochure would require a renegotiation of usage, i.e., an additional fee.

Time-Based Example
The illustrated character for Coca-Cola usage is restricted to print advertising for a period of two-years. So, migration of the character to the web or broadcast media would require a renegotiation, i.e., an additional fee.

Location Example
The promotional poster illustration for Fidelity Investments usage is limited to internal display in Fidelity offices in the US. So, a distribution of the image to the public would require a renegotiation, i.e., an additional fee.

Agreement Timeframe

It's extremely important to spell out the time frame, i.e., schedule for the project activity. This can be done in terms of time such as days or hours, or it can be done using actual dates. Naturally, a project's timeframe will reflect the complexity of the assignment. Multiple image assignments may have multiple sketch approval and delivery dates. Here are two sample timeframes:

Date Model
Start Date:                                                 1/15/13
Sketches:                                                   1/20/13           
Input or Approval from Client:        1/22/13
Revised Sketches:                                  1/24/13
Approved Sketches:                              1/26/13           
Delivery of Finished Project:            2/03/13

The date model is used for assignments that have a finite inflexible delivery date, such as time sensitive publications for events. So it’s important to have the dates nailed down in the contract. This works well when all parties agree and sign off on the schedule. A date-based schedule helps decision makers to comply with the schedule dates. One unfortunate consequence for illustrators when using the date model is that clients who don’t abide by the schedule are often also unyielding when it comes to the delivery date. This shortens the amount of time available to produce the work.

Time Model
Start Date:                                                 Notification of Approval to Begin
Sketches:                                                   5 Working Days
Input or Approval from Client:        2 Working Days
Revised Sketches:                                  2 Working Days from Input
Approved Sketches:                                               
Delivery of Finished Project:           7 Working Days from Approval

The time model, which is based on the amount of time it takes to complete each stage of a project, provides some protection for the illustrator when a client decides to prolong their part of the decision process. When this happens is quite common for the final delivery of the work to be adjusted according to the amount of additional time that has been taken up with any delays. I have had far greater success using the time model because, by its very nature, it necessitates a flexible delivery date, and most clients understand this.

Timeframe Penalties
Be aware, some contracts for time sensitive projects specify a monetary penalty to the illustrator if the work is not completed on schedule. Fortunately this is relatively rare, and usually is tied to large multi-vendor, multifaceted projects.

Agreement Beneficiary

All companies or persons who will receive a benefit from the services provided should be listed. It is very common for an ad agency, design firm, public relations firm, or marketing company to outsource an illustration assignment on be half of a client. Sometimes more than one company may be involved. All parties should be considered beneficiaries. For example: Creative Soup (the design firm) contracted by McCann Erickson (the ad agency) on behalf of Coca-Cola (the client).

Expertise Provided

This can be stated simply as "Illustration", or it can be written more specifically. For example: Dimensional Illustration, or Digital Illustration for the Technology Market, or Illustration and Design for Packaging, etc.

Services Provided

Services provided is an expansion of the project description that includes working process and description of deliverables. For example: Subject research, concept, design and layout, two proposal sketches per image subject, one round of revisions per subject, final illustrations, and delivery of digital image files.

Agreement Start Date

The start date is usually when one or more of the following occur: When the contract is signed, when the job compensation is agreed upon, when project input is delivered, and/or when delivery deadline is set.


Payment for services can be in the form of a lump sum payment, a schedule of payments, a fixed wage (hourly rate), a sales commission, or a trade of goods or services, a combination of types of compensation.

Lump Sum Compensation
Lump sum compensation can be in the form of a single payment due at a specified time when the commission is completed. For example: $2250 due upon delivery of finished art. It can also be broken down into installments to occur during the course of the commission and/or after. For example: 50% payment due ($1125) when sketches are approved and 50% payment due ($1125) when the commission is delivered.

Hourly Rate Compensation
Some types of commissions call for all, or part of the compensation to be in the form of an hourly rate. For example: $20 per hour (20 hour maximum) for development and completion of Fidelity Mortgage Illustrated Pie Chart. Service type work and the non-creative portions of a project can also be billed by the hour in addition to a lump sum for the create work and finished art. For example: $20 per hour (5 hour maximum) for digitizing traditionally produced artwork, digital file preparation for reproduction, and file or image duplication, etc.

Commission Arrangement
Taking payment for work in the form of a sales commission is an option, albeit a risky one. Commissions are usually a low percent in comparison to the value of the commodity being sold. In essence a fair wage becomes dependent on high volume sales, and high volume sales in some cases are hard to predict.

Exchange Arrangement
Compensation may also be arranged in the form of an exchange of services or goods. For example: One set of Cartier Trinity Platinum (Item CTP 3414) pens and pencils in exchange for the cover illustration for the Fall Colorado Pen Company Catalog.

Kill Fee
A kill fee is a specified amount to be paid to the illustrator in the event that an assignment is discontinued after the illustrator has been given the go ahead and begun work. This happens more often than any of us would like, so it’s important to have the kill fee spelled out. For example: An assignment discontinued during the sketch stage would incur a fee of 50% total payment. An assignment discontinued during the final art stage would incur a fee of 100% total payment.

Schedule for Payment

A clear statement of when you should be paid. It is best not to leave this aspect of compensation undefined. And, although it now seems fashionable for clients to delay payment much longer than they should, a payment schedule can be very effective at keeping receivables on schedule. For example: Payment due 2/28/2013. The same due date should be reflected on the job invoice.

Intellectual Property Right

The intellectual property right refers to the ownership of the copyright of an illustration. Simply put, the right to control the usage of an illustration. The illustrator is the copyright owner, which should be plainly stated in the agreement or contract -- unless the copyright was sold in a buyout, assigned over to another party, or the work was produced under a work-made-for-hire agreement. For more information on intellectual property see “Copyright Intellectual Property” posted 11/6/12. For more information on work-made-for-hire see “10 Digital Art Copyright Definitions” posted 9/11/12.


Materials Expenses
Material expenses can be either the responsibility of the illustrator or the client. Usually, this is factored in to the overall payment for the project, in which case the illustrator is responsible. However there are sometimes expenses that occur beyond the norm. For example: The painting of a mural might require a substantial outlay for materials such as paint, brushes and cleaning supplies.

Outsourced Expenses
Outsourced expenses can be either the responsibility of the illustrator or the client. An outsourced expense is one that requires the use of a service or hiring of a person or company. For example: Hiring a model to use for reference photos, or purchasing reference from a stock photo agency, or hiring a photographer to photograph the final work for digitizing.

Resources Support
In lieu of expenditure, many clients will provide resources in support of a project. It is advisable to make arrangements for, and list, any resources you feel the client should provide to you. Publishers will often provide reference photos, and clients in manufacturing will furnish products that need to be illustrated. I’ve had machine parts, high tech gadgets, and toys provided. I even had an actual Emmy award statue sent to me.

Company Support
Company support is usually in the form of office space, company access, or company staff services.


Assignment Initiation Person
This is usually the person who is working directly with the illustrator. Most commonly it is a designer, art director, creative director, account executive, marketing person, author, editor, company executive, or the company owner.

Assignment Authorization Person
This may be the assignment initiation person or a secondary person within an organization. For example: A magazine editorial assignment is usually “initiated” by an art director, but the magazine’s editor is the “authorization” person. It’s usually the editor that grants final approval of an illustrator’s work.

Financial Contact Person
It is extremely important to have all contact information for the person the invoice is sent to. It may be the person that is the assignment initiation person, i.e., an art director, or it may be an entirely different person within the company. And, it might even be a person at an entirely different company. For example: When an illustrator is hired by the agency or design studio on behalf of a client, but must bill the end client directly. It is my recommendation that this kind of situation be avoided at all costs. He agency or studio should be responsible for compensation, and most are.

Agreement End Date

The agreement end date should be stated in advance. It may be when the project has been delivered and payment has been received or it may not. It is altogether possible for an end date to extend beyond the point of completion. For example: The restricted nature of some types of assignments may be subject to a confidentiality restriction that extends far beyond the completion of the work. A situation may also occur where an illustrator may be bound by a limited non-compete restriction. For example: In producing a character illustration for Coca-Cola, the illustrator agrees not to produce a character illustration for any other soft drink company for the period of two years. As an option, agreement end dates can also be made renewable. For example: Coca-Cola may wish to extend usage of an illustration for an additional period of time. For a negotiated fee, the extension might also include lengthening the non-compete restriction.

Assignment Approval

Last but not least, a statement approving the project and the terms specified in the contract with a start date. Lines for authorization signatures and signature dates should be included for both the client and the illustrator.