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On Fantasy Publishing, and Negotiating Contracts

By Don Maitz | 14/05/2014
I have had the pleasure to meet on several occasions one of the visionaries of the publishing industry, Ian Ballantine. Ian and his wife, Betty were instrumental in bringing paperback books into the mass marketplace. Ian pretty much came up with the idea of a "pocket " paperbound book during the war when he published a softbound collection of airplane silhouettes for soldiers to identify aircraft in the field during World War II. He founded Ballantine Books, Bantam Books, and Peacock Press. Peacock Press brought us affordable art books with paper covers. Some of the artists he selected were: Howard Pyle, hopefully well known to you all, Carl Evers, one of the most honored of maritime painters ( Ian remarked that "the sea was the hero" in an Evers watercolor), and Frank Frazetta. Ian told me a story about his embarrassment when he accidentally closed his trunk lid and caught a Frazetta original as he was taking some to the printer to be reproduced. Fortunately there was no damage. I remember those paperbound Frazetta books very well, and the Howard Pyle and Evers books- I still have them.

What you may not know is that Ian and Betty Ballantine were responsible for bringing J.R.R. Tolkien's writing into the United States in paperback. Ian revealed a loophole in the copyright law for books that legally allowed a limited number of unbound manuscripts to be imported from overseas each year. These unbound manuscripts were published in paperback format without having to pay the author a royalty. Mr. Tolkein was a purest and only wanted his books available in hardcover editions. Ian approached him and explained there were copies of his books already published in the United States in paperbound format and that no royalties are being paid to him. Ian ask to publish Tolkien's work in paperback in an authorized edition with an explanation that these books are published with the knowledge and permission of the author and are paying the author a royalty. Ian sweetened the deal and offered to put Tolkein's artwork on the covers. Life magazine ran an article about the copyright loophole and how it had affected this respected Oxford Professor and it became a bit of a scandal which got the public's attention and the loophole in the copyright law was rectified. Ian, being an inventive sort of fellow, went into bookstores and asked the owners if they would place a poster on their walls in the blank space between the bookshelves and the ceiling, many agreed, and along came the attention getting Travel Poster " Welcome to Middle Earth". We have seen how well received Tolkein has been to the publishing ins dustry and besides the stories being astounding, they were stewarded to the public ethically and imaginatively. (The above retelling was provided to Janny and I by Betty Ballantine during a visit at Anne Mc Caffrey's home in Ireland some time ago.)

Ian brought together Alan Lee and Brian Froud with their huge selling book "Faries". He produced, "Gnomes" as well as other fantasy books. He an Betty were the guiding factor and marketing force behind the success of Jim Gurney's multi million selling book- Dinotopia. Ian had shepherded the book concept to several NYC publishing houses with no takers - I remember him say to me in frustration ,"They are all sheep." He finally found a kindred spirit with Ted Turner and his Turner Publishing firm. I remember going to the American Booksellers Association convention the year Dinotopia was released. Turner transformed his entire floor space into Dinotopia land with Jim Gurney's art reproduced in huge attention getting displays, attendants in costume, offering only that book at the center of it all. The rest of Turner's publications were offered on the back side of a small booth. Dinotopia was THE memorable hit of the entire convention and the orders poured in. Ian's vision and Ted Turner's testicular fortitude made that happen.

Ian told me something I remember to this day. With all his accomplishments, you can bet I listened well. He said, "If you treat a person fairly, you will never need a lawyer." Being a publisher dealing with the brightest authors and artists of the world, that is quite a revelation and policy. He was quite disappointed to confide to me that after all his years in publishing, he had at last been forced to hire a lawyer to pursue an artist who had taken an advance on a book project of his, who had refused contact, and not delivered the contracted artwork well beyond the deadline.

The tremendous surge of Frank Frazetta's career as a cover artist and the pivoting factor that transformed the fantasy paperback cover industry was when he wanted to get his original art back from the publishers. Until that time, the covers were kept by the publishers. Many of the artists were just doing the covers for a paycheck and did not care to keep the art itself. Many publishers had no use for the original art, they just kept it because it was part of the "deal ", So original covers were relegated to dumpsters or handed to book salesmen as perks. When Frank was allowed to keep the art, he put his all into the work, because he wanted to have the art to hang or sell. This led to the memorable Conan paintings and other fantastic covers he did. Eventually the law in NYC was changed and the ownership of original art belonged to the artist, not the publisher. I bring this up as it was a simple fair request by an artist that had major changes to an entire industry, just as Ian Ballantine's fair request to Tolkien changed how publishing books worked. These were not legal issues to start with, they were ethical requests. The law came around and was altered to accommodate a fair policy.

So that being said, most producers of a product want to see a fair profit for everyone involved in their production line. Things get dicey when the financial bottom line takes precedent over content and when a legal department does it's job too well. In Ian Ballantine's day, as many artists such as I remember, the company, be it a publishing house or gaming company, was answerable to the president who made ultimate decisions on the products they chose and how they were to be conceived and marketed. These self owned enterprises were able to go out on a limb to try something on their own. Today, such companies are owned by corporations that also own many other companies in the Entertainment industry and the person that makes the bulk of the important decisions is now the accountant, as the quarterly bottom line that is fed to the corporate board and stockholders sets the guidelines. Profit over content is something that publishers are struggling with and I believe is the core issue of why this website was established.

All the the above is a prelude and perhaps adds some perspective to the potential benefits of this site.

When should a Work for Hire contract be considered a viable choice by an artist? Some questions should be considered. Is the art being created original, or is it working on an existing character or intellectual property? Is the art an end in itself, or part of a process that others will work on as well, becoming an artistic blend? If the concept is not original and the artist can be seen as a cog in a contribution that results in a product. Then there is justification for a Work for Hire situation. The lawyers of an enterprise are there to protect the legal interests of their company. If they leave no room for any slippage, they are doing their job in protecting the interests of those paying them. The company is paying the artist as well, and they want to get the best work possible. A smart company will acknowledge that a happy artist will do better work. So at the time prior to signing even a Work for Hire situation, which the legal department of many companies advise, concessions are possible. The Use of the art in a portfolio is a common one. Although this concession pretty much negates one of the prime features of a Work For Hire contract, which is authorship. By allowing use in your portfolio, the publisher acknowledges that you authored/created this particular image. Whether they tell you to or not, place their copyright notice on the image whenever or wherever you have it appear associated with your portfolio. This is both ethical and lawful as technically, you do not own, under Work for Hire, the right to copy in any form, THEIR image. They have made a concession and you should make one as well. If you create a physical work, not digital, under a work for hire contract. They own the original artwork and can hang it or sell it, they can include your name with it or not. It is their property. If it is a character you did not create, or others worked on it - it should be theirs, they paid for it. Hopefully, you received enough in the negotiation to compensate you for the loss of the sale of any original artwork. If the art is original and not based upon their concepts and you are the sole artist in it's creation, try to see what they plan to do with the original artwork. If they do not have a specific plan, see if they will return it to you at a date in the future. Assert you will not make copies and wherever it appears you will credit the company. Even offer to put a plaque on the frame of the painting to credit them - hey, whatever works. If you can negotiate get the original art back - good for you - just do not abuse your negotiation and flaunt it. I know an artist who has set this as a precedent for his work and he always keeps his original art, even in the motion picture industry. So this is possible. If you later discover the company is going out of business or being acquired by another company, or if you do repeat jobs, ask whatever happened to that original art. It is likely the product has exceeded it's viable lifespan, or a new line has replaced it and the original art holds no particular interest to them. See if you can get it back. Explain that someone seeing the art displayed may remember the product. Any company wants publicity, so offer it. Just remember with Work for Hire contracts, you do not own your work, cannot reproduce it, and you cannot say in print you worked on it.... unless you negotiate otherwise in writing. Their hired lawyer does not want to change his beautiful iron clad protective document, unless directed otherwise by those that pay him. Be advised one the term Work for Hire enters into a negotiation, any legal rights of the artist are gone. The VA form has a box that asks" Is this work a Work for Hire?" If checked- you have no legal standing with that art. Anything you do about your rights after signing a Work for Hire contract should be considered pleading and begging.

All Rights contracts offer a bit more wiggle room but are very restrictive and should be negotiated with some skill. In an All Rights contract, you retain authorship and so can declare publicly that you created the work, you retain authorship, you also retain the original art( if any). Usually All Rights allow a clause that he art can be used in a portfolio and in collective works. The right to make any copies of an artwork belongs to the holder of the copyright. In an All rights contract, you are transferring your right to make copies in any form to another. Use, Time, and Geography are major the major factors in rights negotiations. In an All Rights contract, a lawyer wants no blowbacks. He is securing the image in all forms and formats, everywhere throughout the universe, ... forever. Companies do not want to go out of business, ... but they do. Without a bankruptcy reversion clause, they take all rights to make copies of any kind with them into limbo. If they fail to make the product or decide not to use your art- unless there is a dispensation in the document - the art you did never gets published - ever, - unless you specify some sort of reversion if they do not produce in a given time period. In an All Rights contract and in licensing contracts, there is a clause where they say that the art you produce is original to you. This means that if you used copyrighted material or photos you did not take yourself to create the art and it becomes a legal issue, you are responsible, not them.

All rights contracts favor the purchaser, not the artist creating the work. Publishers of games, books or what have you, want art good, they want it cheap, and they want no blowbacks. All rights Contracts are a good fit for them. They are not a good fit for the artist, unless you can honestly say the work - (which has not been done yet) is of a nature that the money they pay you equals ALL the income you would see if you sold copies in all forms ( prints, tee shirts, product licensing, secondary publishing rights, e book covers, interior art, toy related items, apparel and things you have not thought of --- for your entire lifetime - AND that of your immediate heirs lifetime. Not an easy figure to determine, and one a hiring company would not be interested in paying you. As they want profits short term, where you want your art to make money throughout the term of copyright ( your lifetime plus 70 years). All rights contracts give away the controlling hand and as far as you are concerned, forever. Their lawyer only thinks about legal blowbacks and keeping his client protected. You need to think about how to keep as much of your copyright as possible, while making as much money as possible, without turning away a client and potential lucrative job. Read their contract carefully. Try to discover what they are protecting in the contract. What is the nature of their business? What are they afraid of ? If they fear product competition, assure that you will never sell the art to a competing company with a similar product instead of an all rights deal. Ask if they ever will consider making prints using you art? Likely they won't as they are not in the print selling business (offer to place their name on any prints as a concession for keeping print rights. Ask how long they think the product will be marketed? Ask if you can grant them exclusive rights for a period of time. Allow them periodic renew options. ( an all rights agreement for a term limit- even as long as ten years, beats giving away all rights FOREVER. You and your kids are likely to out live most companies. If the product involved is off the market - they then have nothing to protect , and you can re negotiate to have have all your rights back for the rest of your lifetime and 70 years-- It is worth pursuing and re-negotiating.

The best sort of contract for artists to sign, limits the Use to one specific item, limits the Time it is used, and limits the Geographical region of sales. The word "exclusive" should not appear. Anything less than this, is a trade off, and you need to get something in return - more money, more work in the future, stock options, their first born - or something valuable to you as a concession.

If you want to work as a staff artist. Do so, and get a regular paycheck. If you want to free lance, Protect your Copyright! Negotiate. Give something to get something. One never knows which image may become important, so the best policy is to protect them all.

I have been self employed my entire career, with only two salary type gigs lasting a total of less than a year, and I freelanced while at those gigs in my spare time. I have sold and resold rights I own many times, including work I did in my art school portfolio.


Don Maitz

Don Maitz is an American science fiction, fantasy, and commercial artist. His most widely known creation is the "Captain" character of the Captain Morgan brand of rum, although he is perhaps most notable for twice winning the Hugo Award for Best Professional Artist, science fiction's highest honor for an artist. His peers in the Association of Science Fiction and Fantasy Artists have honored him ten times with a Chesley Award for outstanding achievement, and he has received a Silver Medal of Excellence from the Society of Illustrators.

A native of Plainville, Connecticut, he is a 1975 graduate of the Paier School of Art. His art has adorned the covers of books by such luminaries as Isaac Asimov, Ray Bradbury, C. J. Cherryh, Stephen King, Gene Wolfe, Michael Moorcock, and Raymond E. Feist. Two compilations of his work have been published, Dreamquests: The Art Of Don Maitz, and First Maitz.

Maitz resides in Florida with his wife, fantasy novelist and artist Janny Wurts.

You can see his work at

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