Getting artwork commissioned? Being hired to create commissioned artwork? This post is intended to give basic guidelines to your contract.
First and foremost, this is not intended to be legal advice, and I’m not your attorney unless we have a signed agreement. I am a California/Washington attorney, so while these notes are intended to be very general, I am only licensed to speak as to those two states’ laws on contracts. Finally, my opinions are my own (i.e. not representative of any company or firm I work for).
Disclaimers out of the way, if you’re going to commission a piece of art, or create one for a client, you’re going to want a contract. Everyone knows it, but despite that, a lot of people still feel awkward about it, like somehow stating your expectations up front is going to ruin the deal.
If requiring a simple contract ruins the deal before it even starts, you’ve probably dodged a bullet. Move on to the next project or artist on your list. Find someone serious.
Contract Basics
Contracts do not need always to be 50 pages long to be effective. Heck, they don’t even need to be written (although it’s better that they are, as it’s (1) easier to prove the terms, and (2) the time you have to sue for breach of contract is typically longer than oral contracts), and they do not need to be formal (i.e. written by a lawyer) to be binding. A series of emails or texts can create a binding contract.
Typically, so long as you have the intent to bind yourself to the terms of the agreement, e-signatures even as informal as just typing your name on the signature line suffices–no need to be FedExing wet ink (original signatures) copies across the world for your average art commission. In fact, even if no one signs the agreement but the client pays and the artist creates the work, that’s usually sufficient to infer there was acceptance of the terms by both parties such that a lack of signatures would not easily be a way out of the deal after the fact.
In most instances, a 1-2 page agreement will suffice for a simple commission. It can (and ideally should be) in plain English–i.e. leave out the legalese. If you don’t understand what it says, it won’t help you, and could even hurt you if it means something different than you think. Keep it simple and straightforward.
Understand Offer / Acceptance
Contract law is pretty straightforward: Offer, acceptance, consideration (and performance). Client tells Artist they want Artist to draw a D&D character for them. Artist tells Client the price and time frame for the drawing (offer). If Client accepts those terms, they tell the Artist they accept (acceptance) and pays the artist per the terms of the agreement (consideration). Artist then draws the artwork and delivers as agreed (performance = payment and artwork delivery).
However, say Artist states the price for the work is $300. This is an offer because if the client accepts, the Artist is bound to the terms of the agreement. But, if the Client says they only want to pay $100, that’s a counteroffer. That $100 statement is a counteroffer, and it extinguishes the artist’s previous $300 offer. Now, if the Artist accepts, the Client is bound to pay $100 and the Artist is bound to create the artwork for that price. If the Client gets anxious waiting for an answer and says they’ll agree to the $300, the Artist is not required to perform under those terms because that $300 offer was extinguished–it’s off the table. In fact, it’s just a new offer by the Client that the Artist can decide if they want to accept. It’s a tit-for-tat system. TL;DR: You can only have 1 offer on the table at a time. Each new offer or counter offer extinguishes the last.
Main Parts of the Contract – i.e. Details to Consider
Note: this is not intended to be an exhaustive list. There may be other details and clauses necessary to effectuate your deal and may require legal review. You can always contact New Media Rights to see if they can help you. They’re a non-profit law clinic based in San Diego, CA who help creators on a budget.
Parties – name the artist and the client. Ideally, you’ll want to include their address/contact info, but at the very least their first/last name, their home state, and email address so they can be more a easily identified in a lawsuit down the road, if necessary–you won’t be doing yourself any favors if you only list each other as ‘Dave and Jennifer’, especially if either or both parties have a limited social media presence. It’s also an accountability factor for both sides, knowing they’re not shielded by anonymity from the other party.
Scope of the work – describe what the artwork is intended to look like (i.e. style, how many characters, background, size) and the medium in which it is to be drawn. If at all possible, refer to and include as an “addendum” any character reference sheets the client has created to be used as a guideline for the commission. While the scope of the work may ultimately deviate from the initial reference sheet, it’s a solid example of the initial expectations for the work that will help reduce miscommunications and misunderstandings later on. See more on this at the end of the article.
Updates – if it’s important to the deal, you may want to include whether updates are required/expected, the frequency of the expected updates, and how proofs are treated, if there are any (i.e. must the proof be approved, or does silence after a certain period constitute acceptance so the artist can move forward if the client is non-responsive). Setting everyone’s expectations out on paper before the commission starts reduces the chances of miscommunications, which are usually the source of legal disputes.
Consideration – how much is to be paid? Is it to be a lump sum or installments (hint: everyone’s more fairly protected if you do a portion up front and portion upon delivery)? When is the payment to be made? By what method(s)?
Term / Delivery – what’s the time frame for the work to be completed? This isn’t 100% necessary if it’s a more casual piece, but if it’s time sensitive, that should be stated up front so it’s clear to everyone. Also, what’s delivery going to look like? Does the client get a print? A digital file? The Photoshop file? How is it going to be delivered–by mail? Dropbox? Email? Get those details worked out up front so you’re not squabbling about it after the work’s been completed.
Intellectual Property Rights – who will own the rights to the completed artwork? What about the drafts? Will there be a copyright assignment (unlike most contracts, an assignment requires very specific language to be valid under US Copyright law; a simple search will show you what that is)? Does that person have permission to register the work with the copyright office? Will the artist or client retain the right to post the work for personal promotional purposes? What about commercial use? What credits are required, if any, upon posting online or selling? Will there be any residual fees to be paid for the use of the work? Can the client/artist commission/create derivative works (works based on the original, i.e. different costumes, interpretations, etc. of the original work)?
Representations and Warranties / Indemnification – both sides essentially agree that neither will be infringing on a third party’s copyright in creating the work (otherwise they could be sued just for creating whatever was requested by the other party, which is uncool). To cover that risk, there’s also indemnification, where the parties agree to defend the other in any legal action related to their part in causing the infringement of the rights of another (i.e. if the client knows the artwork being commissioned is a popular video game character, the artist could be liable for any legal issues related to the mere creation of the work, so the client should step in to defend the artist since they asked the artist to do that work). This clause can be a real humdinger for the unwary if it’s not included and phrased correctly, so really look at what kind of risk you could be taking based on the others’ intended use of the work, and decide if you want the job.
Forum selection/venue/choice of law – usually, the artist will require that any lawsuits brought against them relating to the commissioned work must be brought in the courthouse closest to their house, and that the contract be governed will be by the laws of their home state, regardless of where the client lives. This simply makes it more cost effective (i.e. less risky) for an artist to sell commissions–if they had to risk being called into court all over the world for creating artwork for clients, that could get expensive if they have troublesome clients (i.e. ones who don’t pay on time). Companies like cruise lines do this too to reduce costs in having to travel all over the place to defend themselves or sue customers who fail to pay. TL;DR: when your audience is worldwide, it’s just more cost efficient to pick the place most convenient to the one offering services to deal with legal issues than to limit your audience to just those in your state.
Miscellaneous – usually includes waiver, modification, severability, integration, attorneys’ fees, and venue/governing law, among others. These clauses are called ‘miscellaneous’ because they vary widely in purpose, but are also usually very short and don’t really fit in anywhere else in an agreement. In law school, we read the cases that explain why these certain clauses have been incorporated into every contract, but that information for some reason hasn’t reached the general public on a wide scale. Take severability, for example. The clause’s purpose is to say that if there is a clause in the agreement that is later deemed unenforceable, the rest of the valid clauses in the agreement still remain in effect. There was a court case (of course, all I can think of right now is the CA case of Keene v. Harling, but I’m sure there was a federal one) where one party tried to get out of the whole contract over a single clause being unenforceable, and the court said ‘no’ because it would be unfair and was unnecessary. Every “miscellaneous” clause has a similar origin story.
Merger Clause – part of the “miscellaneous” clauses, the merger clause is sometimes called the “entire agreement” or “integration” clause. This is, similarly to the above, resulting from a rule of law called Parole Evidence in the U.S. You’ll probably want that in there, unless you are okay with having communications about the terms of the deal that would possibly or otherwise alter the final terms after signing the agreement (sometimes happens).
Character Reference Sheet
Not sure what to include in a character reference sheet? No problem, here is a starter list of things to consider in describing what you want to the artist (also, create a Pinterest account and make a board with pictures you find of the following–pictures are far more useful to an artist than words).
- How many characters in the picture? Any pets?
- Race/skin color of your character(s) — don’t assume your idea of skin color is universal
- Hair and eye color; hair style
- Facial expression
- Pose / how your character(s) will stand — decide if that matters to you. Otherwise, the artist will come up with some post to depict the remaining information, and you may not like it, or you may not care. Just know that it’s an initial stage creative decision that the artist will either need to make or use from your designs because without a way to portray the body, they can’t move forward.
- Clothes:
- style / era / level of fantasy/steampunk/etc.
- color or color scheme
- wear/tear level
- any preferences as to whether anything is billowing;
- if there is a hood or sleeves, do you want them up or down?
- if there are weapons or gear, is your character a righty or lefty?
- Any magical effects – some idea of color, level of intensity, or specifics that they not be included
- Do you want a background? If so, what do you want in the background? How much detail?
Want to see a sample character reference sheet? Here’s one I used in commissioning the below characters (drawn by the awesome Jacob Miller). We left the poses up to the artist in this instance, but for other commissions I’ve found pose references on Deviant Art because I had a specific pose in mind.
For an example of how things can change, note in the warforged rogue (far left) character’s description, I initially wrote that the hood didn’t need to be up. Later, we changed our minds and the artist worked with us to include the hood. Other edits were discussed and made as each character came to life, but we’re super proud of and happy with how our D&D party came out. Also, the artist streamed his drawings on Twitch, which was SUPER COOL because the whole group got to watch their characters come to life in real time.
Good luck, and happy commissioning!