Intellectual Property Rights for Digital Artwork and an Artist in the United States

Question

My fiancee is an artist, and regularly creates digital art work, mainly digital drawings and the occasional print of that artwork. There is a certain level of implicit 'copyright' of the artwork, as I understand it, as her intellectual property.

However, individuals occasionally commission her, which goes a little outside my understanding of these implicit IP rights in the circumstances. I also occasionally commission artists to create artwork, of which the subject matter, situation depicted, and in most cases the characters depicted are my intellectual property (or, at times, the joint intellectual property of me and my fiancee).

This is essentially the question at hand: Under United States law, where we reside, what are the legal rights and protections granted to an artist for their artwork which they create, and are those rights and legal protections lessened when they are commissioned by another individual, depicting characters, individuals, or situations which are the intellectual property of the one who made the commission?

Answer 1

Under United States law, copyright is normally held by the creator of a work.

There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is.

If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be.

If you're in a situation where you need to know, for example:

• That you are allowed to use the artwork forever, and the artist can't ask you to stop later;
• That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or
• That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you;

then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about.

Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be.

tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them).