Congrats! You’ve been approached to illustrate a book.

But now you start to worry about copyrights. Will you own the copyright in your illustrations? How do you keep them? How might you lose them?

The short answer is the copyrights are yours! Unless one of three things happen:

• you work as an employee and illustration is part of your job
• your illustration contract contains a work-for-hire clause
• your illustration contract contains an assignment clause

Watch the video | Read the show notes | Read the transcript

Show notes

• Need help registering your copyrights? Get instant access to a step-by-step course walking you screen-by-screen through the process!

Transcript

This week’s question comes to us from Lisa in Nebraska. Lisa asks,

How can I keep copyright when illustrating for a book?

You own the copyright, unless…

The good news is that in the United States you own the copyright in everything you create.

Unless one of three things happens:

• your employer owns it because you create it as part of your job duties
• you sign a work-for-hire agreement
• you assign your copyright via a contract

An employee within the scope of her job

If you are an employee and what you’re creating is in the scope of your employment, then your employer automatically owns the copyright.

In a freelance book illustration contract that wouldn’t apply, since you aren’t an employee.

Work for hire agreement

The second way copyright can be transferred is what’s called a work-for-hire agreement.

What gets called a work-for-hire and what is actually a work-for-hire under the U.S. Copyright Act are usually two different things.

So what is a work-for-hire under the Copyright Act?

A work made for hire is something that is specially ordered or commissioned and is in one of these seven categories:

• a collective work
• a movie or other audiovisual work
• a translation
• a supplementary work
• a compilation
• a test, answers to a test, or a textbook
• a map or atlas

Most of the things that are “called” a work-for-hire doesn’t fit in these seven categories. So they aren’t really work-for-hire under the Copyright Act.

But we lawyers are tricky. And we know that most things called a work-for-hire aren’t one under the law.

So if you read most contracts closely, you’ll see that there’s a provision to cover cases just like this.

This provision is called a back-up assignment clause. When this provision is included, it looks something like this:

The parties agree that the Artwork shall be considered a work made for hire for Author as that term is defined in § 101 of the 1976 Copyright Act. In the event that Artwork is not deemed a work made for hire under § 101 of the 1976 Copyright Act, the Artist assigns and transfers to the Author, one-hundred percent (100%) of all the rights, title, and interest, including copyrights throughout the world to the Artwork. Artist agrees to execute any documents necessary to facilitate this provision, including but not limited to any assignments of copyright.

Why this section is tricky is because it says, “we are calling this a work made for hire, but in case it’s not, you give us the copyright.”

So you need to read your contract very carefully to make sure that a clause like this isn’t included and you aren’t transferring your copyright to either the Author or the Publisher.

Copyright Assignment

The final way you might not own your illustration copyrights is if you assign the copyright to someone else.

In the United States, a copyright assignment must be in writing to be valid.

So again, you need to turn to your contract to look for something like this,

Illustrator does hereby sell, assign, transfer, and convey unto Author, the entire right, title, and interest in and to said Artwork and in and to any and all copyrights on said Artwork that may arise and/or may be granted in the United States and any foreign country, and including each and every derivative Artwork arising from said Artwork.

TL;DR

You own your copyright unless one of these three things happen:

• you are an employee and your job is to create illustrations
• you sign a work-for-hire agreement with a back-up assignment clause
• you sign a contract that includes a copyright assignment