Legal Considerations When Selling Artwork Created by a Freelancer

The internet has opened up new avenues for artists, allowing them to create, distribute, and sell their work like never before. However, one critical question often arises: if you hire someone to create art for you, do you automatically have the right to sell it, or do you need a formal agreement to do so?

Understanding Copyright Ownership

To begin with, the artist who creates the artwork is the primary copyright owner. In the absence of any formal agreement, the copyright remains with the artist, who retains all rights to reproduce, distribute, and sell the artwork without your permission.

However, artists can willingly transfer their copyright. For instance, if an artist is employed by a company to create specific work, the copyright is typically assigned to the company. This is because the work is created within the scope of their employment, and the company can claim copyright ownership. This scenario does not apply if the artist is working as an independent contractor, in which case the artist retains the copyright unless explicitly assigned.

Written Agreements are Essential

The most effective way to ensure you have the right to sell the artwork is by having the artist sign a formal contract. This contract should explicitly state that the copyright is assigned to you. In the United States, a Work for Hire agreement is a legally recognized form of contract that transfers copyright ownership to the party that commissions the work.

Written Consent and Credit: Even if no formal contract is in place, you should still obtain the artist's written consent before selling the artwork. This consent should include a clause that allows you to sell the artwork but may also require the artist to be credited.

Understanding Work for Hire Contracts

A Work for Hire contract is a legal agreement where the artist agrees to hand over all copyright to the person or company commissioning the work. This is a legally binding contract and must include specific language to ensure clarity and adherence.

Here are some key elements that should be included in a Work for Hire contract:

Legal Obligations and Rights: Clearly state that the artist is assigning all copyright to you, and that they have the right to be credited. Clear Wording: The term "Work for Hire" must be prominent and in bold, as well as in a readable font size. This ensures the artist understands the implications. Copyright Registration: You should register the copyright with the US Copyright Office. To do this, you should visit Copyright.gov and fill out the necessary forms to claim yourself as the copyright claimant. Additionally, you should check the box to indicate it is a Work for Hire. Artist's Moral Rights: Include provisions for the artist's moral rights, such as the Visual Artists Rights Act (VARA) in the U.S. Credit and Usages: Address the right to credit the artist on the artwork, and any limitations on its use.

Seeking Legal Advice

Given the legal complexities involved, it is highly advisable to consult with a copyright lawyer who specializes in art law. They can help create a thorough and enforceable contract that covers all aspects, including moral rights, and ensures your legal standing as the copyright holder.

By understanding and diligently following the steps above, you can avoid legal disputes and ensure that you have the right to sell the artwork you commission.

Conclusion

While it might seem straightforward to sell artwork created by an artist, there are several critical factors that must be addressed to ensure you have the necessary rights. A clear and formal Work for Hire contract, combined with proper registration and legal advice, can help you navigate these complexities and protect your interests effectively.