Who Owns Your Drafts, Sketches, and Outtakes?
A Guide for NYC Creatives on Commissions and Works for Hire
Working artists, writers, entertainers and creatives in NYC and Brooklyn are often approached or commissioned to produce a specific, finished piece for a company – the piece may be a mural, a manuscript, an illustration, a set of concept sketches, or another body of work in your specific style designed to meet certain criteria.
Projects like these often involve more than just producing one version of the work and deeming it complete. You may have notes and sketches, drafts for yourself, submitted work product that is returned to you with comments for editing, outtakes, or excess material that you made before the final version of the work was accepted.
You may have wondered: what happens to those components that came before the final version – the rough drafts and cuts, the discarded sketches, or the outtakes?
Who Owns a Commissioned Work by Default?
The general rule of thumb under U.S. copyright law is that everything that an artist makes is automatically owned by the artist in copyright – including every draft and sketch. Even if you are paid to make something, that payment does not terminate your copyright, or transfer it to your employer.
However, that automatic rule may be changed by entering into contract stating that the company who commissioned the work owns the drafts and sketches. There is also the concept of works made for hire, which suspends the automatic rule and vests the hiring company with the copyright for the work and the underlying drafts and sketches.
What Is “Work Made for Hire”?
“Works made for hire” is a legal term and typically does not apply to art created on commission.
For independent creatives (this does not apply to traditional employees, whose employment contracts typically control ownership of works and drafts), a commissioned work is only considered a “work made for hire” if:
1. The work falls into one of nine narrow, statutorily defined categories under the Copyright Act (contributions to collective works, works made as part of a motion picture or audiovisual product, translations, supplementary works, compilations, instructional texts, tests, test-answer materials, or atlases); and
2. Both parties expressly agree in a signed writing that the work is to be treated as a work made for hire.
Most commissioned visual art, illustrations, and writings do not fall into these categories, meaning they are not works for hire, and the automatic rule that the creative owns the copyright remains.
If you are a creative and you receive a contract that describes your work as a “work for hire” but it does not fall into one of the nine narrow categories above, that contract provision does not change the nature of the work, which could matter if you try to use drafts of the work in a later project and the company tries to prohibit you from doing so.
You Own the Commissioned Work and Licensed the Copyright for the Final Version. What About the Drafts, Sketches, or Outtakes?
Even if your final piece has properly assigned or licensed the rights to the company, you should know whether the contract discusses the rights in the drafts leading up to the final version.
For example, a contract that deals with the “final mural” or “approved manuscript” does not necessarily touch upon rights in the preliminary sketches, early drafts, or alternate concepts that were not approved.
It is silence on this point that could lead to disputes later. You may run into issues if you want to display early sketches or drafts in your portfolio, gallery or website, or use unused concepts in later works, and the company that commissioned you believes that their payment of the final product entitled them to rights in all versions you created along the way.
What Should Be in Your Commission Agreement
If you think you may want to retain the rights to the works you might create before a final version is approved, it is worth it to reach out to counsel to ask how to draft provisions that protect your rights.
Among other things, a well-drafted commission agreement might include:
Exact descriptions of the work that is being transferred, assigned, or licensed;
A provision preserving your rights to display or publish the work or early drafts in your portfolio or future projects;
Separate treatment of physical materials (such as original sketches, working files or audio or visual material, or models of sculptural works) from later-approved finished pieces; and
Provisions dealing with credits or attributions for the final piece.
Questions to Ask Yourself Before Signing
If you are working on a contract that deals with rights with this level of specificity, it is always advisable to speak with a lawyer to understand if there is anything you are missing or any fees or rights you are leaving on the table.
If that’s not possible for any reason, at least consider asking yourself the following:
Is it possible I will want to reuse or display any of the draft materials I am creating later?
Does this agreement say anything about rights in drafts, sketches, or materials related to the final product?
If it is silent on those points, have I considered what that silence means, including whether I am prepared to engage in a dispute about this later?
How can I keep a clear record of what I produced for this project and when?
Working through these questions before you sign is the difference between a contract that protects your creative process and one that leaves the possibility of expensive, lengthy disputes open for later.
If you are an NYC-based visual artist, fine artist or photographer, writer, filmmaker, or musician navigating a commission agreement, consider reaching out to an attorney who can help you draft a provision that protects your rights.
Lindsey Rubinstein can help you make sure your contract reflects what you actually intend in terms of rights in the works.
Expand Law maintains an active blog which provides general legal information. Under no circumstances shall reviewing this blog constitute legal advice. If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.
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