One of the reasons why I love new media is to see the comradery that comes from one creator working with another. A popular example of this is when Youtubers and Twitch streamers find artists within their own communities to commission artwork for them. Generally this is a win-win situation for both the patron and the artist. However, this is a legal blog so things can’t be all that rosy. Let’s say the art that was commissioned became a big hit, something recognized as the content creator’s brand. So, who owns the rights to this defining feature? Surprisingly, the artist might still have the rights to the work and the content creator might be using the artwork outside their legal allowance.
Who owns the copyright?
By default copyright of a commissioned artwork goes to the artist. The creator of a work owns the copyright to that work when “a work is fixed in a tangible medium of expression.” Joint copyright do exist when “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” However, giving ideas to the artist generally does not reach the level of contribution to share the copyright.
But I paid for the art…
The person or entity paying for the art can obtain copyright through the “works made for hire” exception, but it is a very specific exception that applies narrowly. There are two ways to meet the “works made for hire” exception.
First, if the work was prepared by an employee within the scope of his employment. The courts will determine if the artist is under the employ of the patron if 1) the employer has control over the art, 2) the employer has control over the artist, and 3) the artist’s status and conduct is within the employer’s normal scope of business. These are not the only factors that the courts can look at, however, they are the most controlling. I will not go into the specific of these factors, but a general guideline is if the artist is a salaried employee hired to make art for the employer’s business then the business owns the copyright. Commissioned art do not fall into this category.
Second way to fall into the “work made for hire” exception is if an independent contractor is commissioned to make a work used:
- as a contribution to a collective work,
- as a part of a motion picture or other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test,
- as answer material for a test, or
- as an atlas
AND have a written agreement expressly agreeing the work is “made for hire.” The work commissioned by content creators may fall into one of the accepted categories of work, but the problem is with getting a contract to explicitly gives the work a “made for hire” status. Most content creators, and even some newer artists, will not have such agreements on file or are even aware of these requirements.
Then what do I have?
This is a very difficult question to answer without knowing all the facts and it would be best to talk to an attorney about the status of your art. Generally speaking, the purchaser will have a license to make use the art in its normal use. For example, if the commission is for a profile picture without mentioning a specific social media platform, then you may be in your rights to use it as your profile picture on your socials, but may be restricted in using it as a logo for a t-shirt. Furthermore, there might be other restrictions on using the art such as altering it to make derivative works.
What can I do?
First and foremost, know what you are buying. When you commission a work, make sure to ask the artist on the status of the copyright of the art. If you have already purchased the work, talk to the artist to clarify and, if need be, work out a written agreement that will include your previous use of the work. A “work for hire” agreement cannot be created after the work has been created without a commission. If you have commissioned the art without a proper contract and want the copyright after the fact, ask the artist if you can also buy an assignment, which will transfer the rights to you. All of this might need some legal expertise, so as always, consult an attorney.