What can I use images for if an illustrator backs out?

[IndiePub]

What is the name of your state (only U.S. law)? Utah

I'm in the process of setting up an Independent Publishing company. We're currently working on our second project. As we're still virtually without a budget, I've been doing just about everything myself. My sister agreed to illustrate a children's book for me in exchange for half of the proceeds, so I have not paid her anything yet. She completed the illustrations, and is now holding me hostage to be able to make every decision going forward - design, font, paper - everything. She even wants to redo them, even thought I've spent 20+ hours scanning and editing so far.

Yes, I realize how stupid it is to work with family, but I was desperate and she seemed to sincerely want to help me out. Now, after five weeks of waiting for illustrations, do I have any rights to them? Can I use them for crowdfunding, even though she's said I can't? Can I use them as examples to a new illustrator? The book, the character, and the color palette have all been my ideas.

I'm assuming there's no way I can just use the images without further permission? Anyone know of legal loopholes there?

Also, there's a video involved, in which I used her friend's daughter. I gave the girl the costume as payment (I know, pathetic, but still payment), and she's threatening to not let me use the video I've spent hours editing and filming.

Any help you guys can give would be incredibly appreciated!

 

[drruthless]

What is the name of your state (only U.S. law)? Utah

I'm in the process of setting up an Independent Publishing company. We're currently working on our second project. As we're still virtually without a budget, I've been doing just about everything myself. My sister agreed to illustrate a children's book for me in exchange for half of the proceeds, so I have not paid her anything yet. She completed the illustrations, and is now holding me hostage to be able to make every decision going forward - design, font, paper - everything. She even wants to redo them, even thought I've spent 20+ hours scanning and editing so far.

Yes, I realize how stupid it is to work with family, but I was desperate and she seemed to sincerely want to help me out. Now, after five weeks of waiting for illustrations, do I have any rights to them? Can I use them for crowdfunding, even though she's said I can't? Can I use them as examples to a new illustrator? The book, the character, and the color palette have all been my ideas.

I'm assuming there's no way I can just use the images without further permission? Anyone know of legal loopholes there?

Also, there's a video involved, in which I used her friend's daughter. I gave the girl the costume as payment (I know, pathetic, but still payment), and she's threatening to not let me use the video I've spent hours editing and filming.

Any help you guys can give would be incredibly appreciated!

I think an attorney would be better to advise you in the using other peoples work that you have yet to pay for.
And about using your friends daughter....
I'm not even going to go there.
..____________________
~ It is said that necessity is the mother of all inventions.
Personally, I've found poverty more inspiring. ~ drr

 

[IndiePub]

Ok, so let's just assume I'm going to check with an attorney before I take any official and permanent action here.

I'd just like to be pointed in the right direction.

I really don't need the judgement. I know it's better to hire someone officially, with a contract, and pay them upfront. That's not what happened.

So... advice? Helpful advice?

 

[drruthless]

Ok, so let's just assume I'm going to check with an attorney before I take any official and permanent action here.

I'd just like to be pointed in the right direction.

I really don't need the judgement. I know it's better to hire someone officially, with a contract, and pay them upfront. That's not what happened.

So... advice? Helpful advice?

What part of NO do you not understand the N or the O?
If your sister said you can't use her material perhaps her attorney can explain it better.

As far as the video did your friend AGREE that a costume would be sufficient payment or did you lead her to believe that there would be something else?
If she has the video it would be in your best interest to give her whatever she wants
If you DO NOT have written permission to use her daughter in your video in your hot little hands...
see the above answer.
Good Luck.

..__________________
~ If electricity describes the movement of electrons,
does morality describe the movement of morons ?

 

[quincy]

What is the name of your state (only U.S. law)? Utah

I'm in the process of setting up an Independent Publishing company. We're currently working on our second project. As we're still virtually without a budget, I've been doing just about everything myself. My sister agreed to illustrate a children's book for me in exchange for half of the proceeds, so I have not paid her anything yet. She completed the illustrations, and is now holding me hostage to be able to make every decision going forward - design, font, paper - everything. She even wants to redo them, even thought I've spent 20+ hours scanning and editing so far.

How did you handle your first project?

Absent any agreement to the contrary, your sister owns all copyrights in her illustrations. She does not have to let you use them at all, even if you have spent 20+ hours in scanning and editing. She is in a position, as holder of the copyrights, to dictate the terms of use.

You needed to have a written and signed contract with your sister, transferring or licensing rights in her works to you, and you still need this.

Yes, I realize how stupid it is to work with family, but I was desperate and she seemed to sincerely want to help me out. Now, after five weeks of waiting for illustrations, do I have any rights to them? Can I use them for crowd funding, even though she's said I can't? Can I use them as examples to a new illustrator? The book, the character, and the color palette have all been my ideas.

It is not necessarily "stupid" to work with family. Those who work successfully in a business with family, though, will treat the relationship as a business one and not as a family one.

After waiting five weeks for illustrations, you have no more rights to the illustrations than you did five weeks ago. You have not been given any rights in the copyrights. You cannot use them for crowd funding. You cannot use them as examples to a new illustrator. You hold no rights to use these illustrations at all. You needed to have a written and signed contract with your sister, transferring rights or licensing rights in her works to you.

I'm assuming there's no way I can just use the images without further permission? Anyone know of legal loopholes there?

Your assumption is correct. You need your sister's permission to use her copyrighted works. There are no legal loopholes that I can see that would allow you to use her illustrations in your book without your sister's express written permission.

Also, there's a video involved, in which I used her friend's daughter. I gave the girl the costume as payment (I know, pathetic, but still payment), and she's threatening to not let me use the video I've spent hours editing and filming.

Did you take the video? If not, you do not hold the copyrights in the video and will need to get permission from the copyright holder to use it.

You cannot use the daughter in your video without permission. If you had a written and signed agreement, detailing the girl's appearance in exchange for the costume, then you would be on sturdier legal ground. An oral agreement (or even a written agreement if the girl is a minor) will be of very little use to you.

Any help you guys can give would be incredibly appreciated!

The help you need is beyond the scope of this forum. What you need (and needed) is to sit down with a publishing law professional in your area. You need and needed contracts. I do not believe your independent publishing business will survive without guidance from someone who knows both business law and the laws of publishing other people's content.

I think the only way to salvage your current project is to get this guidance now.

Good luck.

 

[IndiePub]

How did you handle your first project?

I did everything myself, with the exception of hiring a professional printer.

Did you take the video? If not, you do not hold the copyrights in the video and will need to get permission from the copyright holder to use it.

You cannot use the daughter in your video without permission. If you had a written and signed agreement, detailing the girl's appearance in exchange for the costume, then you would be on sturdier legal ground. An oral agreement (or even a written agreement if the girl is a minor) will be of very little use to you.

I did take the video, and have the mom on film (not intentionally) talking about the purpose of the project, how fun it is going to be, and how nice it was to let her daughter keep the costume. I know that's not a traditional contract, but maybe a little more protection than an oral agreement that wasn't recorded? The mother of the little girl hasn't been giving me problems. My sister is likely going to try to recruit her, however.

The help you need is beyond the scope of this forum. What you need (and needed) is to sit down with a publishing law professional in your area. You need and needed contracts. I do not believe your independent publishing business will survive without guidance from someone who knows both business law and the laws of publishing other people's content.

I think the only way to salvage your current project is to get this guidance now.

Good luck.

Thank you for all of your advice.

 

[quincy]

I did everything myself, with the exception of hiring a professional printer.



I did take the video, and have the mom on film (not intentionally) talking about the purpose of the project, how fun it is going to be, and how nice it was to let her daughter keep the costume. I know that's not a traditional contract, but maybe a little more protection than an oral agreement that wasn't recorded? The mother of the little girl hasn't been giving me problems. My sister is likely going to try to recruit her, however.




Thank you for all of your advice.

Having a conversation on tape between the minor child and the child's mother, where they are discussing your project, is probably better than nothing, but you really need to invest in written contracts that will cover rights and permissions.

Although I am aware that many see an attorney as an unnecessary expense, especially when you are a new business and working on a tight budget, your tight budget will get even tighter if a dispute that arises over one of your projects results in a lawsuit and you do not have contracts in place to protect you. A lawsuit can destroy a new business pretty quickly.

I admire the work you are putting into your new publishing company, IndiePub, and would hate to see it go to waste, which is why I want to see you protect it properly. Good luck to you.

And thank you for the thanks. They are always appreciated.

 

[LdiJ]

As someone who has kind of been where you are done that...I am going to throw out some advice.

I suspect that you are ok on the video, and certainly your sister has no input on that at all.

However, its pretty easy to find templates for contracts on things like illustrations/images/video or any other work output. You can use those templates to create your own contracts whether you are dealing with family, friends or strangers. Clearly, you need to do that going forward.

In the case of your sister you have an oral contract. She agreed to provide the illustrations in exchange for 1/2 of the proceeds (which was dumb on your part, it should have been 1/2 of the profits rather than proceeds) Your oral contract did not give her rights over anything else regarding the project, she decided to insert herself there.

If you go ahead and use her illustrations AND give her 1/2 of any proceeds, then she would be hard pressed to take any action against you unless she was willing to lie and state that there was never an oral contract...because of course she would then have to explain why she did the work and what the agreement actually was.

For the future, do some research and find templates for standard agreements for the kinds of things that effect what you are doing, and make sure that everybody you deal with signs the appropriate agreement.

In my lifetime I have drafted many an agreement that stood up in court, using templates.

 

[quincy]

As someone who has kind of been where you are done that...I am going to throw out some advice.

I suspect that you are ok on the video, and certainly your sister has no input on that at all.

You cannot say that the sister has no input without knowing what was videotaped.

LdiJ;3370884]However, its pretty easy to find templates for contracts on things like illustrations/images/video or any other work output. You can use those templates to create your own contracts whether you are dealing with family, friends or strangers. Clearly, you need to do that going forward.

Templates can be used as a pattern for a contract but only if you know what you are doing. Because any legal dispute will depend on the exact wording of the contract, trying to create one yourself if you do not know the law can be a big and ultimately costly mistake.

In the case of your sister you have an oral contract. She agreed to provide the illustrations in exchange for 1/2 of the proceeds (which was dumb on your part, it should have been 1/2 of the profits rather than proceeds) Your oral contract did not give her rights over anything else regarding the project, she decided to insert herself there.

If you go ahead and use her illustrations AND give her 1/2 of any proceeds, then she would be hard pressed to take any action against you unless she was willing to lie and state that there was never an oral contract...because of course she would then have to explain why she did the work and what the agreement actually was.

This is incorrect. A transfer of copyrights MUST be in writing and MUST be signed by the copyright holder. An oral transfer of any of the exclusive rights to a copyrighted work is not legal.

For the future, do some research and find templates for standard agreements for the kinds of things that effect what you are doing, and make sure that everybody you deal with signs the appropriate agreement.

In my lifetime I have drafted many an agreement that stood up in court, using templates.

If you have had "many an agreement" stand up in court, that means you have been sued many a time. The goal should be to AVOID a lawsuit.

Every contract should be structured for the specific wants and needs of the parties involved, and be written so that the contract is legal and binding on all parties. Someone should never rely on a template alone to write a business contract.

 

[IndiePub]

Awesome advice guys. I really appreciate it.

I'm really not quite as dumb as I seem regarding contracts. I know they're necessary, I'm just literally working on a "beg-as-I-go" budget. Using a lawyer currently is impossible. So I'll need to push back any projects that require anyone but myself. Normally, this sister and I get along well. I have email confirmations every step of the way that she was ok with the project, and it's like she had a psychotic break. Hence the no contract... still dumb, but she's not normally like this. I'm just concerned that when she self-destructs far enough to regret this, I won't have time to work on it anymore.

The video I don't think will be a problem, but I'm going to decide if I want to use it badly enough to get a contract signed... just in case.

One last question to throw out there: If I envisioned the character - do I have any rights? Every detail about the character was controlled by me - the animal, the color, how it was shaded, what it wore, what it had with it - everything. So, if she were to attempt to use her drawings of my vision - couldn't that get messy for her, as well?

Man, I am looking forward to when one of my early projects has raised enough money that I can only work with professionals and lawyers and contracts... who would have thought that could ever thrill a creative type to the fingertips!?!

 

[justalayman]

One suggestion:

As ldij suggested, 1/2 the proceeds is a pretty stiff fee as opposed to 1/2 the profits. While you may have meant profits, you are now in a grey area that you could lose.

You might consider dumping sis and her assistance right now and move beyond her. Personally I would rather not start a business relationship with a person such as you are and hope it gets better and it will save you the argument of the definition of proceeds in the future.

 

[quincy]

Awesome advice guys. I really appreciate it.

I'm really not quite as dumb as I seem regarding contracts. I know they're necessary, I'm just literally working on a "beg-as-I-go" budget. Using a lawyer currently is impossible. So I'll need to push back any projects that require anyone but myself. Normally, this sister and I get along well. I have email confirmations every step of the way that she was ok with the project, and it's like she had a psychotic break. Hence the no contract... still dumb, but she's not normally like this. I'm just concerned that when she self-destructs far enough to regret this, I won't have time to work on it anymore.

The video I don't think will be a problem, but I'm going to decide if I want to use it badly enough to get a contract signed... just in case.

One last question to throw out there: If I envisioned the character - do I have any rights? Every detail about the character was controlled by me - the animal, the color, how it was shaded, what it wore, what it had with it - everything. So, if she were to attempt to use her drawings of my vision - couldn't that get messy for her, as well?

Man, I am looking forward to when one of my early projects has raised enough money that I can only work with professionals and lawyers and contracts... who would have thought that could ever thrill a creative type to the fingertips!?!

If you envisioned the character, and you have fleshed out the character in writing to the point that your character can be seen as an original and creative work that could qualify for copyright registration on its own, you could potentially have rights you could assert. Not likely, perhaps, but possible.

Here are links to the applicable laws on copyright ownership (Copyright Act Section 201) and on copyright transfers (Copyright Act Section 204) and, finally, a link to the US Copyright Office website that has information you can search for on your own:

Section 201: https://www.law.cornell.edu/uscode/text/17/201

Section 204: https://www.law.cornell.edu/uscode/text/17/204

US Copyright Office website: http://www.copyright.gov

You might be able to locate and make use of some free resources in your area (law library, law school clinic, state resources for small businesses) with a simple online search.

Again, though, sitting down with a publishing law professional is recommended. You need personal legal guidance and a forum cannot provide this for you. Good luck.

 

[IndiePub]

One suggestion:

As ldij suggested, 1/2 the proceeds is a pretty stiff fee as opposed to 1/2 the profits. While you may have meant profits, you are now in a grey area that you could lose.

You might consider dumping sis and her assistance right now and move beyond her. Personally I would rather not start a business relationship with a person such as you are and hope it gets better and it will save you the argument of the definition of proceeds in the future.

Yeah, that was a stupid slip on my part. On the one hand, my sister definitely didn't catch it and interpreted it as half of the net profit. So, I don't think that's going to be an issue, and if we move forward even an inch, I'm holding her to a contract from this point forward.

I will likely dump her though. It's not worth the trouble to skip a round of crowdfunding to pay a real illustrator.

Thanks!!

 

[quincy]

... So, I don't think that's going to be an issue, and if we move forward even an inch, I'm holding her to a contract from this point forward ...

IndiePub, if you are happy with the illustrations your sister has created, and your book benefits from the illustrations, you might want to consider drafting a collaboration or co-author agreement, where all of the rights of ownership, and the percentage of revenues to be shared, are specifically addressed and detailed. If everything is spelled out nicely in writing, your sister may be more willing to continue with your project as you originally intended.

Having a good illustrator connected with your business can be a real asset but the roles of each of you need to be defined in writing to make this work well.

Here, by the way, is a link to the defining case on copyrights in fictional characters (Nichols v. Universal Pictures Corp., 45 F.2d 119, 2d Cir 1930): http://cyber.law.harvard.edu/people/tfisher/IP/1930 Nichols.pdf

From the case, Judge Learned Hand stated: " ... the less developed the characters, the less they can be copyrighted: that is the penalty an author must bear for marking them too indistinctly."

Examples of fictional characters that have been afforded copyright protection (and also trademark protection) include ET, Snoopy and James Bond.

Again, good luck.