Gray Areas (To Be Sure)

Gray Areas (To Be Sure)

A reader asked:

I would love to hear comments on what to do when an illustrator takes an art director's creative concept and uses it in another publication.

Recently, I hired an illustrator. Gave him a clear concept of what we wanted executed. The illustrator did the work (not deviating from this concept) but we decided to kill the illustration because it wasn't meeting our needs aesthetically. Paid the illustrator in full. We ended up with a more graphic interpretation that we did in-house. The illustrator took our concept and his illustrations that he did for us and sold them to a competing publication (that came out the same week as ours).

Although the artwork was property of the illustrator, it was our creative concept.... What do you do in this situation? Seems like a gray area.

Our thoughts...

In circumstances like this, the thoughtful illustrator or photographer would call asking for permission to resell the image. At that point you would both free to discuss the pros and cons of such a development. You would express your discomfort at the idea of providing aid to a competitor and that doing so constituted a conflict of interest. Upon hearing this, your peer would very likely want to protect your reputation (and job) since he'd already proven he values your working relationship by having called in the first place. He would not resell the image and that would be the end of it. But is your peer free to sell it at all? You point out that the artwork is his own--by industry standards it is--but does that include the intellectual property? To that end, did he sign a contract forbidding the sale of the image or concept elsewhere, or that full payment constituted a buyout? What if he had wanted to sell it to a client in a different country? Is he a regular contributor? Areas of gray to be sure.

A contract aims put things in black and white and gives us legal recourse. A contract seeks to motivate certain behaviors from the outset in order to avoid legal recourse. (Contracts do have their charms.) Few of us, however, whip out legal papers when we're commissioning to freelancers. We rely on shared common sense, professional standards and an unspoken expectation of ethical conduct. Some or all of these seem to be missing in the transaction you describe. To you, a "gentleman's agreement" of sorts appears to have been violated, while he appears to be free to sell his work. Short of suing him (unlikely but it is an option) all you can do is call him to express your surprise and exquisite displeasure. Maybe he'll apologize and explain that he had "no idea(!)" Perhaps you will forgive him. It's unlikely you will use him again, nor will you recommend him to others if asked. That seems to be the real price of this illustration.

Agree? Disagree? Leave your answer in the comments.

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  • Brandon Kavulla

    Chiming in late here as i wasn't exactly sure how i felt...i could definitely see both sides.

    I certainly understand an illustrator wanting his/her work to be published and seen.

    In this case, basically the illustrator has decided that getting his work published was more important than maintaining a good relationship with the original art director.

    My 3 biggest problems with what happened are this:

    1) The illustrator was paid in full. So "making a living" really isn't an issue as the illustrator was paid even MORE for usage in the rival publication.

    2) Wouldn't being given a great project and full payment at least warrant a phone call? Plus, this would be a pretty interesting negotiation/motivation suddenly if the original commissioning magazine finds out their competition is going to run what they rejected.

    So the illustrator was given a great project, most likely 150% of the original payment and it was published. Kind of hard not to feel screwed over if you're the original art director.

    3) Probably the MOST serious issue is if taking the art to a rival pub gave them an entire STORY idea that they did not have previously. This gets into very serious confidentiality issues that really should be on paper before work begins.

    But again, it's a question of what's more important to the illustrator.

    - Getting your work published

    - Having a reputation in the business of giving ideas to rival magazines. (if he did it once, why would he not do it again?)

    Tough call, but ultimately, better communication and specific contracts up front.

  • Sally

    Although I didn't entirely agree with his (albeit flattering) analysis of Missbehave, I agree with Jando on this. (Ohai Jando!) Ideas are a dime a dozen. Even good ones. It is our job as art directors/creative directors to come up with them, and it's kind of silly to get too possessive.

    I agree that I would be insulted if the illustrator didn't consult with me before selling work to a competitor. I would also be upset if I bought an illustration without being told that it commissioned by a competitor, and that the competitor was going forward with the story!

    But in my experience, when work has been killed for our mag -- especially in cases where I have worked hard on it -- I encourage the photographer/illustrator to find another home for it. I have even helped. When I do work that I am proud of, I want it out in the world.

  • Tim O&aposBrien

    I'm sure there are contracts out there that specify not working in competitive magazines for a specific period of time on the same topic (I've received those contracts) but it is mostly a gray area. I agree with Jandos in that ideas are free flowing and often not completely original in the first place. I am extremely cautious with this kind of thing. I think long term and in the end it's about relationships and trust. I have on many occasions, alerted an AD that the idea that are pitching to me was one I just did for _____ magazine.

  • Jandos

    You could become offended by something like this, but don't you have something better to do with your time? Ideas are a dime a dozen, floating in the air, inspired by specific stories. If you killed this concept once, it's highly unlikely that the stars will align in such a way that it will be of value to you ever again.

    For those of us who draw a paycheck (many of us a pretty good one) designing a magazine, I also think we ought have a bit of sympathy for those who live job to job. Do you really want to deny the illustrator you worked with the ability to earn money from the fruits of his or her labor? Odds are he put a lot more time effort and thought into it the piece then you did.

    Finally, while it was unfortunate that it was sold to a direct competitor, you can take a little consolation in the fact that their standards are not as high as yours—after all, they ran something you wouldn't.

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