Commission as Prints?

jasmine · Posted: Thu May 13, 2010 1:13 pm Post subject: Commission as Prints?

Hello!

I was just curious as to how you go about asking your customers whether they would allow their commissioned painting to be offered as prints?

For instance, when a customer commissions a piece from you, and you're finished...do you send them an email or ask them directly if they mind you offering that piece as prints in the future? Or do you just go ahead and do it....? Who owns the image officially? You or the person who commissioned it?

Confused

Stefan Maguran · Posted: Thu May 13, 2010 1:45 pm Post subject: Re - Commission as Prints?

You, unless there is a specific clause in the contract, but it would be very nice to let the owner know that you intend to sell prints. Normally, the owner would be flattered, as it proves that his decision to buy the piece is shared by others. However, other collectors may have different views, but there is little they can do about it.
The big no, in my view, would be to make a new work exactly the same (unlikely, in most cases). That would upset every single collector, unless you are Damien Hirst or something like him, in which case you can confidently open a canned tuna factory.

Tango · Joined: 06 Mar 2006 Posts: 1360 Location: Melbourne

You are the creator therefore you own the copy-right unless you sign over to them the copy-right aswell.. so you don't need to ask them, unless you feel the need to do so out of curtesy.

Jo Tyler · Joined: 13 Aug 2008 Posts: 489 Location: Newcastle

No legal input from me, but if I commissioned an artwork I would be very pissed off to see it out there as prints.

thecatsgrin · Joined: 18 Apr 2009 Posts: 2181 Location: Gippsland

Stefan and Tango are right when it comes to the legal side of things, but I am with Jo.
I would be really upset just on principle.
To have something comissioned, is a personal decision....
I wouldnt do anything without asking the owner, regardless of the legal aspect of it.
Imagine yourself in their shoes!!
Word of mouth is a good thing, and they may in the future commission more work from you, so It would pay to tread carefully!

Goodluck!

art8dave · Joined: 01 May 2006 Posts: 1333 Location: Sydney

jasmine · Posted: Fri May 14, 2010 8:03 pm Post subject: Re: Re - Commission as Prints?

gggraph · Posted: Sat May 15, 2010 9:33 am Post subject: Re - Commission as Prints?

My understanding is that if a work is commissioned, and paid for, the client owns the copyright:

from http://www.copyright.org.au/information/cit032/wp0021

Tango · Joined: 06 Mar 2006 Posts: 1360 Location: Melbourne

Oh dear ! I think someone needs to read the Copyright Act it seems my assumption and long held belief could be wrong, was the commissioned work a portrait ?

Tango · Joined: 06 Mar 2006 Posts: 1360 Location: Melbourne

Who is the owner of copyright ? ( from Education Queensland)
FAQ Toc
Copyright in a work or subject matter may be owned by the original creator, the joint creators of the material or someone else. The basic rule of copyright ownership is that the first owner of copyright is the person who created the material, unless one of the exceptions described below applies. Where the copyright material has been produced by two or more persons and it is not possible to separate out each personâ€™s individual contributions, copyright is jointly owned. If it is possible to separate out the parts of the material created by each person, then each contributor owns copyright separately in the part he or she has created. Copyright will be owned by someone other than the person or persons who created the material if there has been an assignment (or transfer) of copyright to another person or organisation. For a transfer of copyright to occur, there must be a written document stating that copyright is being assigned which is signed by the person who is making the assignment of copyright to the other party. Exceptions to the usual rule of first ownership of copyright apply where the material has been produced by an employee in the course of his or her employment and in the case of certain commissioned photographs, portraits, films and sound recordings. An exception also operates in relation to material that has been commissioned by the State. The operation of any of these exceptions to the general rule can be varied by agreement between the parties. Entities such as corporations or governments will usually own the copyright in material created by an employee if the material was produced by the employee as part of the duties he or she has been engaged to perform. For example, Education Queensland will own the copyright in material produced by its employees during the course of employment. Whether a work will be considered to have been made by an employee in the course of his or her employment depends on the individual circumstances of each case. However, for material produced by students, the basic rule of ownership would usually apply, i.e., copyright remains with the individual student who created the material or, where it is the result of combined efforts, by the group of students who jointly created it. Where the employer is the publisher of a newspaper, magazine or periodical, the employer owns copyright in literary, dramatic and artistic works produced by employees for the purpose of inclusion in a hard copy or on-line version of the publication. Copyright in a commissioned work will usually continue to belong to the person who produced the material rather than the person who commissioned it, notwithstanding that the person who commissioned the material has also paid for the work. Special exceptions to the general rule apply in the case of commissioned sound recordings and films, in which case copyright belongs to the person who commissioned the sound recording or film rather than the person made it, subject to any agreement to the contrary. Likewise, where a person is commissioned to produce a photograph for a private or domestic purpose, or a painting, drawing or engraving, copyright belongs to the person who commissioned the work. Apart from photographs produced on commission for a private or domestic purpose, copyright in commissioned photographs belongs to the photographer. Where copyright material has been commissioned by the State, copyright automatically belongs to the State if the material has been produced under the Stateâ€™s â€œcontrolâ€ or â€œdirectionâ€. As with the other exceptions to the general rule of copyright ownership, this provision can be varied by agreement between the parties. To avoid uncertainty about the operation of this exception where material is commissioned by a government agency, it is recommended that the copyright position is negotiated during the commissioning process and that the relevant documents contain clauses dealing with copyright ownership. (end Quote)

After reading this I'm still not sure and will have to do more research but it does seem that copyright of a work that is created for a personal domestic purpose is owned by the person who commissioned it.

belle2 · Joined: 21 Jan 2010 Posts: 189 Location: Newcastle

I'm with Tango on this. I have been taught that I have copy right on all my work unless I sign an agreement otherwise. Since I've only had one commissioned portrait the issue hasn't arisen. Interesting topic.

gggraph · Posted: Sat May 15, 2010 11:21 am Post subject: Re - Commission as Prints?

Some parts of that seem to contradict other parts...

I think the crux is

Tango · Joined: 06 Mar 2006 Posts: 1360 Location: Melbourne

Yes it's interesting ! if the copyright is held by the person who commissioned the work for private domestic use only , they obviously would not be able to make money out of that image , like making prints for sale etc , as then the work would have entered the commercial world where the copyright belongs to the creator ???? ( I knew I should have finished that law degree)

I suppose this has left Jasmine back where she started ''up in the air''. though seeing permission for her to make prints has been obtained from the owner of the work it should be OK , unless the work becomes world famous as it probably will, and makes millions and then the owners of the work come knocking for their share Shocked

AvG · Joined: 17 Sep 2005 Posts: 1912

I am pretty sure when it comes to visual arts copyright resides with the creator (artist) unless otherwise agreed.
In illustration / design it could easily be the other way around without it setting any kind of precedent.
A bit like intellectual property (IP) - when you create something as an employee the IP resides with the employer, but when you are a consultant, the IP remains yours not the clients. Even though you are paid to develop the work in both instances.

In the case of commissions, the commissioner has paid for the commission not for the copyright, unless it is expressly agreed to up front which would also normally be reflected in the pricing.

jasmine · Posted: Mon May 17, 2010 10:37 am Post subject: Re: Re - Commission as Prints?