Like many of my friends, I grew up reading Mad magazine every month, avidly pouring through each page of the iconic publication and laughing at even the silliest jokes they’d throw out to the world. I loved it.
I clearly remember adoring their “Things We’d Like to See“ features and film parodies in particular (even though I was too young to get into most of the movies they were spoofing), but more than anything, it was their Spy vs Spy comic that most had me hooked. For better or worse (and I’d argue for the better), you could say Mad played an outsized role in the shaping of my young sensibilities, much to my mother’s dismay at the time.
So when Creative Intell needed a comic artist to illustrate sections of the website we were building, I instinctively thought of Mad’s Peter Kuper and placed him at the top of my list of potential candidates.
Peter, for those of you who don’t know, was the driving force behind Spy vs Spy from 1997 right up until Mad’s unfortunate demise in 2022.
Not to say that his other credentials, contributing comics to countless A-list publications like Rolling Stone, The New Yorker, Vanity Fair etc., weren’t impressive, but for someone weaned on Mad magazine like I was, it was his brilliant take on Spy vs Spy that most inspired me to seek him out.
It didn’t hurt that my business partner and fellow Creative Intell co-founder, David Fritz, was also a big Mad fan and equally keen to hire one of their alumni.
So upon locating Peter’s contact info, I promptly reached out to the man to see if he was interested in contributing to Creative Intell. He got back to me almost immediately saying he was wide open to the idea. Wonderful. Together we worked out a price we both felt to be fair.
Experienced as David and I may be, I can’t pretend we weren’t a little excited by the opportunity to collaborate with someone who’s work had so impressed us over the years. Not only with Mad, but the comics Peter creates for The New Yorker have always struck me as being spot on in. That was the approach we wanted for our Creative Intell illustration; smart and insightful, of course, but discreetly funny.
From Day 1, David and I knew it would be cool to use lighthearted cartoons to illustrate the legal concepts we’re teaching, and Peter, with his wry, subtle humor, was going to be perfect. We also made sure to clarify whether we could assign additional projects to him, ensuring our agreement was clear on the nature of our work relationship.
Our company, Creative Intell, is a one-stop solution for artists and business professionals looking to better navigate the complexities of the music industry. The Creative Intell Academy we run offers courses and an animated series that decode the concepts and contracts of the music industry. We wanted Peter, a renowned graphic artist, to take a legal concept from one of those courses and create an illustration that summarized it in one simple image.
I explained it didn’t matter which concept he chose to illustrate, just to follow his muse and employ his unique sense of humor to it.
Ironically, after inking Peter’s deal in writing, he opted to create an illustration to convey the legal concept of “work for hire,” which of course made perfect sense as the cover illustration for our Understanding Work for Hire Agreements course. I say “ironically,” because it’s exactly this agreement that I want to talk about today, and coincidentally, the same agreement we used to engage Peter’s services as an illustrator.
As I’ll explain, simply Venmo-ing Peter a payment after he delivered his art to us wouldn’t have been enough. It could have left us open to copyright infringement as soon as we published it on our site. We absolutely needed the right contract to commission him to create art for Creative Intell; and that was a work for hire agreement. You see, the Copyright Act plays a crucial role in defining work for hire agreements, ensuring that the commissioning party retains the copyright, and this is a very important consideration when hiring an illustrator.
Here's why.
There are many important reasons to use a work for hire agreement whenever you’re engaging an artist or creative collaborator. And by ‘creative collaborator” I mean anyone you hire to create – or contribute to - a work of art you intend on commercially exploiting. That work of art could be a session musician’s performance on one of your recordings, a film director’s music video, an album cover design, a promo photograph, an audio or mixing engineer’s creative input; basically, anyone you’re hiring to contribute to your creative endeavors – such as an illustrator.
You see, whenever you commission someone to create art for you, you need to remember that by default, the artist always owns the copyright to their work, regardless of how much you did or didn’t pay them to produce it for you.
For example, when you hire a session musician to, say, record a guitar solo on one of your tracks, by law, that session musician always owns the copyright in their performance.
The same thing goes with an illustrator and their artwork. While we obviously had to pay Peter to create an illustration for us, he still retained its copyright.
Or, I should say, would have retained his copyright had we not confirmed our arrangement in a work for hire agreement - before Peter even picked up his charcoal pencil and drew his first line.
Now that might seem like a minor detail, except it’s anything but. You cannot legally exploit any work of art unless you own – or have licensed - all the rights to that work. Otherwise, you’re looking at potential copyright infringement. This is why a work for hire agreement for these purposes is so key - and it needs to be in writing. A verbal deal absolutely won't cut it.
Written agreements are required for almost any business transaction, and work for hire agreements are no exception. It provides a clear understanding of the terms and conditions of the project, including ownership and rights to the work. This clarity helps prevent disputes and misunderstandings that may arise during or after the project. Everything is right there on the table. There is little to no ambiguity when everything is laid out in a written agreement.
In the event of a dispute, that agreement serves as concrete evidence of the terms and conditions agreed upon by both parties. In a work for hire scenario, this can be particularly important in establishing the independent contractor’s status and preventing misclassification as an employee. With everything documented, both parties can refer back to the agreement to resolve any issues that may arise.
A well-drafted work for hire agreement will state that the client (us) will own the artist’s creative work (Peter’s illustration) from the moment of its conception. In exchange for the fee we agreed upon, all Peter’s rights to his illustration were transferred to Creative Intell in this agreement. We own its copyright in full. If we wanted to sell posters of his artwork, put it on t-shirts, or commercially exploit it in any other way, shape, or form, we would be perfectly within our rights.
Rest assured that not securing Peter’s rights to that illustration could get messy. Without it, would we need his approval every time we reproduced his artwork? Obviously, that would be a thoroughly untenable situation.
In our case, we’re only talking about a simple illustration for a one-time use on our website. Imagine having to track down every session musician who played on a recording any time you wanted to secure a synch deal – or anything else - for it.
Sure, you might have paid for that recording, but you don’t own it in full unless you have everyone involved in its creation signing their rights over to you in a work for hire agreement. Additionally, any transfer of rights or obligations under this agreement should not occur without prior written consent from the other party, ensuring mutual agreement and clarity in contractual obligations.
I’m regularly astounded by how many people in the cultural industries don’t seem to know this – until, perhaps, they get sued.
Now, there’s a myriad of other reasons why you need this agreement when engaging creatives, and they’re not all one-sided. But for the purposes of this article, I only wanted to focus on the most crucial reason we used a work for hire agreement with Peter. For the full rundown on why and when you need this agreement and how it all works, I strongly recommend you consult the Understanding Work for Hire Agreements course we offer at Creative Intell.
Copyright law plays a significant role in work for hire agreements. Under copyright law, the creator of a work is typically considered the owner of the copyright. However, in a work for hire agreement, the client is considered the owner of the copyright, and the independent contractor is not entitled to any rights or royalties.
This is because the work is considered a “work made for hire,” a doctrine established by U.S. copyright law. The work made for hire doctrine states that the employer or client is considered the author and automatic copyright owner of the work. This means that the client has the sole and exclusive property rights to the work, allowing them to use, modify, and commercially exploit it without needing further permission from the contractor.
As for the illustration we commissioned, Peter delivered it to us just a few days after we cemented our deal, and predictably, it was fantastic. For a guy who doesn't work in the music business, we were pretty amazed by the insight his cartoon displayed about our industry. And it was just the right amount of 'funny' to compliment the tone of our site.
As you can see (at the top of this page), Peter's comic highlights how the work for hire concept applies to artists in their dealings with record labels. Basically, he implies artists are the ones coming up with the great ideas and doing all the hard work – albeit for a fee – but the owner of that creative output, the record label who commissioned it.
I'd argue it's not quite that simple, that there are several nuances to consider in support of the record labels' position, but hey, it's a comic, designed to be funny and thought-provoking.
We think he nailed it, really did a great job for us. I hope you think so too.
The moral of the story, the main thing to remember here, is that by default, artists (musicians, photographers, video directors, illustrators, etc.) automatically own the rights to the works you commission from them. Given you want to control what happens with this creative work you’ve paid for, you need the artist (performer, photographer, etc.) to assign all their rights to that work over to you before they even create it.
The government copyright office provides a framework for copyright protections that can extend to foreign markets, ensuring your rights are recognized internationally.
The way to do that is with a work for hire agreement.
Wait, one last thing… did you know you can get an affordable best-in-class work for hire agreement template at Creative Intell? It even comes with its own interactive course so you always perfectly understand the work for hire agreements you’re signing.
You can get it all here.
Disclaimer: Creative Intell is not affiliated, nor associated in any way, with any third parties referenced herein, nor their respective goods or services. Any and all third-party trade names, trademarks, and/or service marks referenced are used for informational purposes only, and are the exclusive property of their respective trademark owners.