Who owns the cover art for a novel?
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
Ralph writes in with this question:
I'm working on my first novel which I plan to self-publish and I wanted to know if' or how I can retain all rights to my book and all royalties from book sales after business with a book cover artist has concluded. I believe I may have read an article a few years back that stated that a percentage of book royalties would be owed to the cover artist. Perhaps I misread the article or it simply depends on the particular agreement(s) between author and artist.
My intention, with any of my novels, is to negotiate a one time fee for the cover artist's work and only pay that amount with nothing owed to the artist in the future. As it is, I am hiring someone to fulfill the task of creating a book cover design that is specific to the ideas I have given them and the notes I have provided them with.
By my logic and understanding, they should have no legal, creative, or monetary rights to the work they were contracted by me to produce after payment has concluded. This makes perfect sense to me and in no way seems unfair or unprofessional. That's what I need clarification on.
After all, a contractor does not have any legal or monetary rights regarding the patio they've built you after you've paid them the full agreed upon amount for their services.
Also, will a personally typed contract and/or emails be sufficient as “having it in writing”? Or can I expect to pay legal fees to have proper contracts prepared?
A: Well Unlike Ralph's Patio contractor scenario… Under copyright law, your ownership of the work done for you by a book cover artist or designer does NOT automatically belong to the hiring party, even though that's who's paid for their work. This because they’re independent contractors, rather than bona-fide employees.
(Interestingly, to take your patio-contractor example, It's true that the contractor doesn’t own anything after finishing the work, but if you hire an architect to design it for you, the architect actually retains ownership of the copyright in the design…. And it is He who has the exclusive right to copy it.)
So, in the book-cover situation, you’d need to have a written agreement which both declares the artist/designer’s work-product to be a “work made for hire”, and (as a backup), transfers the copyright in the material to you.
The reason for the backup, called an assignment, is that the work made for hire doctrine in copyright law is limited to only a few KINDS of work that can be handled that way. So we want a belt to go with our suspenders here.
Fortunately, what you're after is a fairly common structure for things, and I’d be surprised to encounter an artist who refuses to do the work on a “buy-out” basis. BUT, this DOES need to be discussed with the artist BEFORE the work is done, as it could impact the way he or she sets the fee for the project.
If you need such a contract drawn up, I’d be happy to help you, but if you have the proper language in a personally typed document, you should be fine. I would NOT, however, rely on an exchange of emails. Do a formal contract document.
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