You're the type of guy that looks for loopholes in board game rules and then acts all whiny when people call you an asshole for it. You're the type of the guy to start arguing semantics in the middle of a friendly debate at the pub and just keep going when everyone else stopped caring thirty minutes ago. You are, undoubtedly, a Reaganomics apologist. C'mon, dude.
There are certain revenue expectations in mind for any project. Any time something is wildly successful beyond that, I think everyone that made it deserves to split at least a few percent of the income.
That’s not a sustainable way to run an industry though. Who decides what constitutes wildly successful? Who decides how many percent and who gets what share of it? Whoever went on and did the work to make the project so successful would have had other costs in doing so, they must have budgeted it out, they might even sell on the rights to the project at some point as happened in this case. Is it fair to then hit the new owners with extra costs out of the blue when they already paid for full rights and appear to be fully legally entitled to them?
> That’s not a sustainable way to run an industry though.
Sure it is. Just because nitpicking is possible doesn't make the basic idea impossible. For example, of course the new owners would know what they were buying.
> Who decides what constitutes wildly successful? Who decides how many percent
Just as an example, it could be "more than 4x the expected revenue cited when doing the original negotiations", and 5%. (Or if "wildly successful" is too likely to get cheated, make it unconditional.)
How about everyone writes a contract laying out their rights, and we have default contractual arrangements if they don’t? Aside from some occasional entitled, envious whining it seems to work out ok so far.
Probably okay, as long as the default contract has a little bit of royalties. The article is about someone who used the default contract, but the default at the time sucked. Let's make the default better.
The risk of course is that there becomes a boilerplate that strips out such things, and it gets used so much that it becomes the new "default".
This artist created something that got widely recognized, and the genesis of it (he alleges) was widely misrepresented by both Ellis and Anderson. Also, he got paid squat compared to what the album generated in sales. Unless you are Spock from Star Trek, you are going to have some feelings of frustration, indignation, and envy from that experience.
If that frustrates you, then all of life is going to be endless pain. Why didn't you buy shares on company X (Twitter, Facebook, whatever) back when it was cheap? Why didn't you make every decision in your life the lucky way by correctly guessing the future? It's impossible not to constantly miss opportunities that involve guessing the future. If he had negotiated for a royalty, they might have refused. Perhaps he regrets not trying to negotiate. If he had tried and still got the same deal, I can't imagine any way he could regret it.
Life doesn't become 'endless pain' just because you think that some amount of royalties should be the default.
Imagine if it was just there, without being negotiated. Not a large enough amount to meaningfully affect the budget, just enough for huge successes to give a payout.
Doesn't matter to me what he got paid. If he wanted royalties, too, he should have negotiated that into the agreement, and he probably would have been paid even less of an upfront amount. He's not the one exposing himself to the risk involved with creating the project. By taking the fixed rate, he had a guaranteed return on his investment and didn't have to worry about the success or failure of the album.
@donatj I could swear I was responding to a comment that read, "I have trouble having empathy for..."
But now I look back and I read, "I have trouble feeling bad for..."
Did you silently edit your comment, or did I accidentally misread it? I meant to respond to the topic of someone failing to empathize with another human being, which is a completely different conversation than someone failing to feel pity for another human being.
If you're worried about someone else getting rich from your work, while you get nothing, but it's impracticable to get royalties because the work will be used to create various derived works in various unforseeable ways, then perhaps the thing to do is offer them, in return for an immediate cash payment, non-exclusive rights for ever, but exclusive rights only for the first five years. You'd probably have to put something in about the purchaser licensing back to you any other necessary rights (e.g. trademarks) to make this work, but it might then mean you'd get a second chance at negotiating five years later. In the case of the cover of a successful record, either they come back to you five years later with more cash, or else you sell your remaining rights to someone else who wants to make T-shirts or whatever. Or you donate the image to the public domain if that's what you prefer. I'm suggesting this approach not so much as a business plan but as a way of avoiding irrational feelings of frustration or indignation, but it might also be a good business plan in some cases.
Personally I like non-exclusive rights. It helps avoid orphaning of works and ridiculous situations in which it's impossible to republish a book unless you can get 19 people to all agree and give permission because that's how many people might have inherited a share in some required exclusive right.
Easy thing to say. But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
We here in SV have evolved a culture and a set of business practices that do a much better job of compensating us fairly. We make good cash money, and we tend to get a share of the success when things get big. It's not like we as individuals were clever enough to negotiate all of the details; it's a system mostly other people worked out over time.
But we're very lucky in that people with our talents and skills are still much rarer than business types would like. That's not true with artists, and the music industry's default practices, especially then, were generally shitty. There's no reason this guy shouldn't get as fair a shake as we do.
(And before anybody has a personal story of not getting a fair shake: yes, that sucks, which is exactly why you should want to see systemic changes that minimize that happening to others.)
> But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
So? I agreed to be paid a few thousand bucks for a few hours of work. Why does he owe me anything other than what we agreed on?
Counterpoint: the Nike logo was designed by an art student for $35. Phil Knight recognized her work’s role in the success of his company and later paid her a lot of money.
While that was a very nice thing for her to do, she wasn't obligated to do so.
And in that particular case the visual branding plays a very prominent role in selling the shoes anyway, so the artwork matters a lot, lot more. I remember feeling embarrassed for not wearing shoes with that swoosh logo back when I was a kid, the marketing and subsequent judging by other kids was that overwhelming at the time.
It carried over into adulthood too, because when I bought my first article of clothing that had the Nike swoosh on it (a t-shirt and basketball shorts, no big deal), there was this crazy sense of relief, like "Finally, I'm no longer the outcast," even though it was more than a decade after I was out of school and hadn't seen 99% of those kids since.
> But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
Would you be willing to give the lion's share of the money you were paid to code it back if the site flopped?
> We here in SV have evolved a culture and a set of business practices that do a much better job of compensating us fairly.
It'ss not culture, it's market economics.
> But we're very lucky in that people with our talents and skills are still much rarer than business types would like.
Exactly. The rarity is key here.
> There's no reason this guy shouldn't get as fair a shake as we do.
He did. Plenty of programmers do work for hire and contract work, and aren't paid in partial ownership.
If I'm a farmer, and I hire someone to work in my field, do they deserve a share of my crop just because they worked it? Does the amount I paid them, if what was agreed upon, change their rights of ownership beyond the up-front agreed upon terms?
I don't see this being any different just because it's an artistic work. There may be a disagreement on what was actually sold, the image and all future uses of it or the singular representation that was handed over, but I hardly see that as worthy of some greater discussion of work, it's worth, and how people are compensated. There are worthy discussions to be had over that, and how we deal with it as a society, but a contract dispute in a case because nobody bothered to even create a contract, such as this, seems a poor start to me.
>> But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
> Would you be willing to give the lion's share of the money you were paid to code it back if the site flopped?
That's why you'd only get a little bit of the money, rather than half. But it still makes a lot more sense than 0%
> If I'm a farmer, and I hire someone to work in my field, do they deserve a share of my crop just because they worked it? Does the amount I paid them, if what was agreed upon, change their rights of ownership beyond the up-front agreed upon terms?
If each unit of crop takes one hour of labor, and you sell it for $2000, you're a terrible person if you still pay minimum wage.
Is it really such a huge burden to only get 95% of the rewards, as the person taking risks?
You pay more in taxes, anyway...
(And the other costs and risks in farming are nowhere near 250x the cost of labor, are you joking? Any situation where you're paying minimum wage AND labor costs are less than 1% of revenue is unconscionable, and I can't believe anyone would suggest otherwise. I wasn't intending for anyone to jump up and become a hyper-capitalist strawman, I was using a stupidly huge profit number so that everyone could agree that fair pay shouldn't be unlivably low...)
As if the two were separate. The idea of market economics itself is a cultural artifact. But this is obviously culture, not some sort of universal law of economics, because Silicon Valley is a unique ecosystem that people keep trying to copy by adopting behaviors, practices, and ideas. Those are all cultural traits.
> He did. Plenty of programmers do work for hire and contract work, and aren't paid in partial ownership.
Sure. And, back to my initial point, if Zuckerberg, or some other entrepreneur had used that to get his initial product built and then said, "Fuck you, buddy" to the person that helped make him rich, people here would have empathized with him. Some would have called it wrong. Because we are part of a system that believes that the benefits of great success should be shared among those who created it.
The principle is the same. It's disappointing to me that people here will apply that to themselves, but suddenly turn to "might makes right" when it's somebody they don't identify with.
Besides the obvious argument that there is no obligation to compensate beyond what the contract specifies, it's a bit presumptuous to take credit for the success of others because of a painting or some website coding. Jethro Tull's success was due to their music, and not the album cover. Facebook's success was due to Zuckerberg's savvy and not the amazing nature of the code.
> Easy thing to say. But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
The GP still has it right. Paid for a task. Done. It would be different if he toiled away for 100 hours/week for no pay, with the hope of having a hit. As originally described, he has no more of a claim than the guy that made Zuck a sandwich at the food truck.
> Easy thing to say. But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
That may haunt me, but I still wouldn't deserve any more than what I got.
"[A lawyer specializing in this sort of law] explained that when dad and Chrysalis came to a handshake agreement, as long as the paintings were originally considered “works made for hire,” the copyright for the paintings always belonged to Chrysalis, thanks to the 1909 Copyright Act. Copyright laws were amended in 1978, making it more difficult for commissioned works to qualify as “works made for hire,” especially in instances where a contract was less-than-specific. Unfortunately, the courts have heavily favored publishers for cases that dated prior to 1978, which means dad missed the cutoff by a scant seven years."
Not necessarily. At least for writing gigs my wife has done, often they involve assigning all rights but not ownership to the client. This is spelled out in the contract, I imagine to avoid controversy over whether there was "work for hire" or not. On the other hand, every dev job I've taken has had me sign a thing saying that the work I do is work for hire and the employer owns the copyright. Seems fair, they're giving me a paycheck after all.
He should have leveraged the success of the album to get high paid work.
Jim Carrey was offered $350K for Dumb and Dumber, which he turned down (he wanted $400K). Then when Ace Ventura became a surprise hit, the offer for Dumb and Dumber was raised to $7,000,000, which he took. He made only $350K for Ace Ventura, but that opened the door to a bigger payday.
Based on the success of Dumb and Dumber, he was the first actor ever to be paid $20M, for Cable Guy, a flop at the box office.
You get paid for /previous/ success, and that's what the author's dad should have learned.
Edit: removed mistaken reference to Liar Liar, thanks
Do markets for art work in the same way as markets for talent in film? To what extent does success in mass media illustration correspond to success in selling singular art objects?
Depends on the condition and on the UES at least you certainly could even as late as 1992. My friend's mom walked away from buying one there @ $27k and complains about it to this day.
I couldn't imagine getting so caught up in one piece of work. I'd like to imagine I would have just immediately turned around and told everyone I was the guy who made the cover for Aqualung and focus my energy on the next project.
Also, it's very presumptive to assume I deserve a cut of your project just because it is successful. Not only do I claim my artwork had something to do with it (I doubt many people cared much about the album cover), but I can't give you one price and then extort you later because you actually have money now.
That's the point: Artists at that time weren't protected enough to retain copyright over their work. They are now. It's not whether "you actually have money now", it's that "you're making money with something I created and I deserve a piece of that too"
So If you make a lot of money On Uber with your Tesla, they “deserve” a piece of that too?
A deal is a deal, he sold the art up front without any royalty, that is in him and he was in no way cheated, had he done the same deal with 20 other covers of bands that disn’t make it big he would not be complaining.
The difference is that you cannot sell litographical copies of a Tesla with your autograph, as Ian Anderson is doing with that image now. The "copy" part of copyright exists precisely because these works are not simple manufactured goods, they can be easily copied.
He bought the art for the exact reason it was used. Eg copying the art on covers. Like buying a Tesla for driving and Selling a service with that driving. I agree duly that if he has sold them just one image for one cover of one LP he would have a moral claim to having been cheated. However if that was the case his pricing would be an insane ripoff. And obviously that is not what transpired.
The original contract was for three paintings for album artwork, which he delivered and was paid for - I don't think there is any issue with that. The album could be reprinted billions of time and he wouldn't have a case. The problem he has is with all the collateral reproductions: t-shirts, litographies, and so on. You cannot do that with a manufactured good: if you buy a Tesla, you cannot magically reproduce it identical out of thin air and then sell it bundled with a truck. So please let's stop with the silly imagery that simply does not suit a copyright debate.
If you sell a man or women a piece of artwork, yes they can put it up in their home and people can see it. If people take photos in front of it, well the photo is of the people and the art could be fair use context. If they take that piece of art and copy it and put it on a book cover .. now that's not right.
I've never actually bought art at an art fair, but I was with a friend who bought a ballet drawing once. I don't remember her signing anything to indicate use. She used her debit card and bought a painting which later hung up on her wall.
I feel like if this happened today, this wouldn't be acceptable. If I sell you a piece of art, you don't get the copyright for that art. You can sell the art like you sell socks, and the person who buys that art can resell it later. But you can't make copies and sell them as your own. Or stand in front of it, take a photo, and use it as a book cover claiming fair use.
If there is no contract, you haven't signed over your rights, and we should default on the side artists rights side of it.
I have no idea what you're talking about. Obviously, the historical facts are that copyright was transferable at the time. It's certainly transferable right now. Why is your sentence set in the past tense, and what are you thinking of?
I think that is how it is in Switzerland. The "Urheber" is the person with the original copyright, but can hand over the usage rights to someone else, in turn losing them.
This was commissioned work. It was commissioned under existing legal standards specifying that the copyright went to the person buying the work. Had it been commissioned under legal standards specifying that in the absence of a written contract, copyright stayed with the artist, there would have been a written contract assigning copyright to Chrysalis Records. It's not like Terry Ellis found an existing painting and bought it.
Nobody got ripped off here, and everyone got exactly what they should have expected to get.
Others have already echoed my thoughts on copyright, so I won't repeat that, but I do want to raise one other point you touched upon:
> I doubt many people cared much about the album cover
Back in the old days of 12 inch records, people did care about album covers. I mean yeah, the music obviously matters more but album artwork was actually pretty important as well.
One of the things I feel we've lost with digital music is the entire presentation of a record. That's not to say things are worse now because we've gained stuff in return (eg music has never been so widely available as it is now). But album artwork (not just the front covers) did actually matter to a great many people.
You can't honestly know what subconscious effects seeing that cover had. To say it had zero effect is pretty disingenuous when you take into account what we know about human decision making and a massive global ad industry.
Of course I can say that for myself. Every record I ever bought was because I knew at least some of the music on it beforehand and went to shop to get it. Cover could influence how I felt about the whole package afterwards, but since I never not bought something because how it looked, I can be pretty certain that it didn't matter for my purchases.
I agree that it would be different if my music discovery came from browsing records in music stores where look could influence me, but that is not how I ever went about it.
It's an absolutely fantastic cover for a fantastic album. To me, it does play a significant role, it gives you an image of the wheezing sad existence of Aqualung, and the raw style of the painting adds significantly to the impression it makes.
The real distinction is between "paid upfront a specific price", known as "work for hire", versus a royalty-based system.
It's all about risk and option value. Most creative works never make a profit, so how much is a profit share worth? Most people need cashflow; if you need to pay rent at the end of the month, how much is a payout worth that's distributed over your life plus 70 years afterwards?
Raphael Ravenscroft, who played the famous saxophone parts on Gerry Rafferty's "Baker Street.", was paid only 27 pounds... and that cheque allegedly bounced.
The whole article seems to vastly overstate how important the cover art was to the financial success of the album. People rarely buy t-shirts of an album cover because they really like the artwork in isolation; it's very often because it reminds them of the songs on the album.
Metal album cover or band logo t-shirts were a huge fad in Japan amongst young people, even those who didn’t like or know about the music. A metal head friend of mine said that he finally understood cultural appropriation!
A good album sells merchandise, which quite often is using imagery from the album front. T-shirts, posters, ... you name it.
Yes, the merchandise is bought as a reminder of a good experience but once it's out in the open, it becomes a form of brand advertising. Familiarity breeds interest (as well as contempt), and interest generates sales.
NB. Unrelated to the other part of your comment - I would happily buy a shirt with The Division Bell's cover even if I didn't like the album. There are limits, though. I'm NOT paying £75 for a cycling jacket with that image - such a thing was available in the V&A exhibition.
I work in the realm of public art projects and thus have collaborated with a lot of artists, mostly painters and sculpters. I must say the success of any piece of artwork - especially the ones created with the public in mind - is not the work of a single man or woman, but the result of the collaboration of a team of professionals - designers, marketers, financiers, metal bashers, crane operators, all the way down to the assistant who helped review the contracts.
So a deal is a deal, if one agrees to the terms of a deal (oral or written), it must be honoured, otherwise there will be no collaboration. Imagine the marketer who helped putting the project on every headline turns around to ask for an extra cut of the success? Not possible, but he/she can certainly charge a higher fee for the next project.
Nowadays artists are much more educated about the value of copyright and we as art consultants/project coordinators help intermediate how deals are structured, so the value of the artist's work is properly recognised and rewarded.
As others have commented, success builds upon success, one must be able to see the bigger picture to be successful in any career pursued.
>So a deal is a deal, if one agrees to the terms of a deal (oral or written), it must be honoured
Sure thing. The deal was for an album cover. Perhaps $1500 in 1970s money is a fair sum for that, even for an iconic album.
Did the deal also include T-shirts, posters, and exclusive prints of the said cover signed by the band's front man?
That's where the contention is. Some people would say yes - work for hire is work for hire. Some people would say no. Pre-1978 copyright law is one side, later versions - on the other.
A deal must be honored - so it was, and then it was not.
Good point. I'm not familiar with the American copyright law, but you're right, nowadays in most countries even if a piece of art is sold to another person, the artist still holds the copyright (the right to make copies) unless copyright transfer is specified in the contract.
But another way to look at this is, if the artwork is commissioned by the company for commercial purpose - much like if someone is commissioned to create a logo for a company - then the copyright is generally transferred to the company.
In the absence of a written contract, one can argue both ways, which I think is why the lawyers didn't think there was a strong case.
In 1971, Terry Ellis, the co-founder of Chrysalis Records, paid him a flat $1,500 fee for the three paintings which would comprise the album’s artwork, consummating the deal with nothing more than a handshake.
It's not even in dispute. There was a contract, so what if it was not written down? Give me $1500 and you can do whatever you want with my three paintings. Handshake. Does the typesetter deserve royalties too?
This happened to an ex of mine. While we were together she was asked to do the album artwork for a top international-name stadium-filling band.
I persuaded her to charge £10k, which was around what she earned a year. She was going to charge much less. Neither of us considered future revenue from licensing or merchandise, so it was signed as a one-off work-for-hire deal. The manager still grumbled about how pushy she was being.
The imagery has appeared on countless merch items since. It’s hard to estimate the economic value, but it was surely a lot more than £10k.
She bought herself a new mattress and took a couple of weeks off.
Unlike OP’s artist, she never expected more. Creatively, it was a bit of a side project. But the truth is the band could have paid £5k or £10k a year in licensing fees without even noticing, so there’s something rather sad about it all.
I think the article artist didn't expect more at the time. The "haunting" implies that in hindsight they believed they should have charged more, but that's not really how things work.
> The imagery has appeared on countless merch items since. It’s hard to estimate the economic value, but it was surely a lot more than £10k.
You get paid based on the cost of replacing your work with someone else's work, not on the value of your work product.
But even if you want to argue for paying people based on value produced, your ex didn't produce that value. It came from the band. People buy band merch because they like the band, not because they like the art.
The aqualung cover image would be basically worthless right now if the artist had kept it while some other image went on the cover of aqualung.
Not surprised, the stories of artists signing for X and getting never properly compensated (either for X or X-extended-to-anything-else) are countless.
And there's little you can do, unless you can nail down the exact culprit to a specific court.
For example: Apple is selling my music, without my consent or without paying due royalties. If I go to them they say "we pay royalties to the distributor", the distributor says "we only deal with labels" and my label has gone bust. Another label now has the rights. They don't know me. They don't have a contract with me. They have a contract with a deceased label that sold them rights they never acquired. So... yeah, it's never going to be fixed.
> They have a contract with a deceased label that sold them rights they never acquired
Surely, if that can somehow be proven in court, those rights would become void and you should get your music back. I know this might not be practical (the court system is not cheap, in most countries), but it's not a principle set in stone that "people get screwed".
This is a case of 'contract regret'. If there was a legal case then for sure it would have been litigated and he might have won but as it is all that you could say is that it is really sorry that he got very much hung up on that one painting when instead he could have used its success to significantly raise his prices for other commissioned works with hopefully better contracts.
On another note: whoever made Jethro Tull's cover for that particular album could have felt that way because it was their music that people were buying, not the album cover.
> the two men hammered out the contours of a handshake deal: For $1,500 (approximately $10,130 in 2018 dollars) dad would deliver three paintings.
> In Ellis’ Midtown office, the last painting was delivered. Ellis cut him a check and said something to the effect of, "Oh thanks very much, these are great,” dad recalls.
Am I missing something here? Seems obvious why lawyers won't take on this guy since 1) there was no contract and 2) the no-contract agreement was not broken.
There's definitely a contract, just a verbal one with no record. The lack of a written copyright assignment allowing reproduction sounds like a problem to me, but the law has undoubtedly changed over the years.
The thing that annoys me about cases like this is the music industry's vampiric determination to get every last dollar out of someone copying MP3s, while being blasé about actually getting money to the right creatives.
Royalty issues can destroy bands. Often the litigation can consume more money than the royalties are worth, because people are hung up on what they "deserve".
The guy sold a painting knowing it was going to be used by a rock band for an album and took a one time payment.
Then he spends the next several decades complaining about it, so much so that his son tries to extract some sort of narrative about the whole process to support his fathers position.
In some ways I can actually relate, so perhaps I’m projecting my own hurt from lack of Justice... but in this case the guy was paid and it was only after it was successful did he start wishing he got more money.
> In 1971, Terry Ellis, the co-founder of Chrysalis Records, paid him a flat $1,500 fee for the three paintings which would comprise the album’s artwork
It is too bad he didn't negotiate a royalty agreement, but then they might not have given him the work, either.
FWIW if he had invested $1000 in the S&P 500 on January 1 of 1972, that investment would be worth about $100K today, according to some online calculators that I tried.
Granted, investing is a lot easier, now that online brokerages exist. It was probably not something that many artists did back in the '70s.
I don't really know the specifics on this artist's success/income, but investing has the pre-requisite of being able to save the money first.
Generally speaking, and of course with all due exceptions, most painters, even many of those that were later acclaimed as masters, tend to have the need to sell their artwork in order to barely survive, so, besides the missing online brokerage, there would be the issue about the possibility of saving and investing.
Anyway, to provide another easy comparison, the Average Hourly Wage[1] in US in 1970 was around 3.50 US$, while now it is around 22.50 US$, assuming that buying power is correspondent, the US$ 1,500 in 1970 represent something like US$ 10,000, IMHO not that bad for three paintings.
>But dad’s earnings had a hard cap. In 1971, Terry Ellis, the co-founder of Chrysalis Records, paid him a flat $1,500 fee for the three paintings which would comprise the album’s artwork, consummating the deal with nothing more than a handshake. No written contractual agreement was drawn up, and, much to his eventual dismay, nor was any determination made about future use.
Well, if he got his $1500 he shook hands on (and which seem a good amount for the time, heck even today an artist can be paid less for an album cover), then he doesn't exactly has any legs to stand on.
Milton Glaser was paid about $2,000 in expenses to create the I Love NY logo, one of the iconic marketing images of its decade. He later said, "I was very happy to do it. I was very happy about the consequences.”
Carolyn Davidson originally made $35 for designing the swoosh that Nike made famous."
I like the artist and the cover art but nothing illegal or particularly unethical took place here. The attitude of those stating otherwise is reflective of our time... break the law to impose some arbitrary and often misinformed notion of justice on the world
121 comments
[ 4.4 ms ] story [ 189 ms ] threadAnd it's understandable that he feels bad about it. So I do feel bad for him. We've all made mistakes.
Given the headline, I had expected more than grief about no royalties. I mean, that is a disturbing old man.
[1] https://en.wikipedia.org/wiki/David_Choe
Sure it is. Just because nitpicking is possible doesn't make the basic idea impossible. For example, of course the new owners would know what they were buying.
> Who decides what constitutes wildly successful? Who decides how many percent
Just as an example, it could be "more than 4x the expected revenue cited when doing the original negotiations", and 5%. (Or if "wildly successful" is too likely to get cheated, make it unconditional.)
> and who gets what share of it?
Plenty of ways to do it, just pick one.
The risk of course is that there becomes a boilerplate that strips out such things, and it gets used so much that it becomes the new "default".
Seriously, just a handshake. So fleeting. So trivial. It's just a gesture, after all.
Imagine if it was just there, without being negotiated. Not a large enough amount to meaningfully affect the budget, just enough for huge successes to give a payout.
But now I look back and I read, "I have trouble feeling bad for..."
Did you silently edit your comment, or did I accidentally misread it? I meant to respond to the topic of someone failing to empathize with another human being, which is a completely different conversation than someone failing to feel pity for another human being.
If you're worried about someone else getting rich from your work, while you get nothing, but it's impracticable to get royalties because the work will be used to create various derived works in various unforseeable ways, then perhaps the thing to do is offer them, in return for an immediate cash payment, non-exclusive rights for ever, but exclusive rights only for the first five years. You'd probably have to put something in about the purchaser licensing back to you any other necessary rights (e.g. trademarks) to make this work, but it might then mean you'd get a second chance at negotiating five years later. In the case of the cover of a successful record, either they come back to you five years later with more cash, or else you sell your remaining rights to someone else who wants to make T-shirts or whatever. Or you donate the image to the public domain if that's what you prefer. I'm suggesting this approach not so much as a business plan but as a way of avoiding irrational feelings of frustration or indignation, but it might also be a good business plan in some cases.
Personally I like non-exclusive rights. It helps avoid orphaning of works and ridiculous situations in which it's impossible to republish a book unless you can get 19 people to all agree and give permission because that's how many people might have inherited a share in some required exclusive right.
We here in SV have evolved a culture and a set of business practices that do a much better job of compensating us fairly. We make good cash money, and we tend to get a share of the success when things get big. It's not like we as individuals were clever enough to negotiate all of the details; it's a system mostly other people worked out over time.
But we're very lucky in that people with our talents and skills are still much rarer than business types would like. That's not true with artists, and the music industry's default practices, especially then, were generally shitty. There's no reason this guy shouldn't get as fair a shake as we do.
(And before anybody has a personal story of not getting a fair shake: yes, that sucks, which is exactly why you should want to see systemic changes that minimize that happening to others.)
So? I agreed to be paid a few thousand bucks for a few hours of work. Why does he owe me anything other than what we agreed on?
And in that particular case the visual branding plays a very prominent role in selling the shoes anyway, so the artwork matters a lot, lot more. I remember feeling embarrassed for not wearing shoes with that swoosh logo back when I was a kid, the marketing and subsequent judging by other kids was that overwhelming at the time.
It carried over into adulthood too, because when I bought my first article of clothing that had the Nike swoosh on it (a t-shirt and basketball shorts, no big deal), there was this crazy sense of relief, like "Finally, I'm no longer the outcast," even though it was more than a decade after I was out of school and hadn't seen 99% of those kids since.
Would you be willing to give the lion's share of the money you were paid to code it back if the site flopped?
> We here in SV have evolved a culture and a set of business practices that do a much better job of compensating us fairly.
It'ss not culture, it's market economics.
> But we're very lucky in that people with our talents and skills are still much rarer than business types would like.
Exactly. The rarity is key here.
> There's no reason this guy shouldn't get as fair a shake as we do.
He did. Plenty of programmers do work for hire and contract work, and aren't paid in partial ownership.
If I'm a farmer, and I hire someone to work in my field, do they deserve a share of my crop just because they worked it? Does the amount I paid them, if what was agreed upon, change their rights of ownership beyond the up-front agreed upon terms?
I don't see this being any different just because it's an artistic work. There may be a disagreement on what was actually sold, the image and all future uses of it or the singular representation that was handed over, but I hardly see that as worthy of some greater discussion of work, it's worth, and how people are compensated. There are worthy discussions to be had over that, and how we deal with it as a society, but a contract dispute in a case because nobody bothered to even create a contract, such as this, seems a poor start to me.
> Would you be willing to give the lion's share of the money you were paid to code it back if the site flopped?
That's why you'd only get a little bit of the money, rather than half. But it still makes a lot more sense than 0%
> If I'm a farmer, and I hire someone to work in my field, do they deserve a share of my crop just because they worked it? Does the amount I paid them, if what was agreed upon, change their rights of ownership beyond the up-front agreed upon terms?
If each unit of crop takes one hour of labor, and you sell it for $2000, you're a terrible person if you still pay minimum wage.
https://en.wikipedia.org/wiki/Damocles
You pay more in taxes, anyway...
(And the other costs and risks in farming are nowhere near 250x the cost of labor, are you joking? Any situation where you're paying minimum wage AND labor costs are less than 1% of revenue is unconscionable, and I can't believe anyone would suggest otherwise. I wasn't intending for anyone to jump up and become a hyper-capitalist strawman, I was using a stupidly huge profit number so that everyone could agree that fair pay shouldn't be unlivably low...)
As if the two were separate. The idea of market economics itself is a cultural artifact. But this is obviously culture, not some sort of universal law of economics, because Silicon Valley is a unique ecosystem that people keep trying to copy by adopting behaviors, practices, and ideas. Those are all cultural traits.
> He did. Plenty of programmers do work for hire and contract work, and aren't paid in partial ownership.
Sure. And, back to my initial point, if Zuckerberg, or some other entrepreneur had used that to get his initial product built and then said, "Fuck you, buddy" to the person that helped make him rich, people here would have empathized with him. Some would have called it wrong. Because we are part of a system that believes that the benefits of great success should be shared among those who created it.
The principle is the same. It's disappointing to me that people here will apply that to themselves, but suddenly turn to "might makes right" when it's somebody they don't identify with.
> Easy thing to say. But imagine Zuckerberg had hired you to code the first version of his site, paid you a few thousand bucks, and then he went on to be one of the richest men in America?
The GP still has it right. Paid for a task. Done. It would be different if he toiled away for 100 hours/week for no pay, with the hope of having a hit. As originally described, he has no more of a claim than the guy that made Zuck a sandwich at the food truck.
That may haunt me, but I still wouldn't deserve any more than what I got.
"[A lawyer specializing in this sort of law] explained that when dad and Chrysalis came to a handshake agreement, as long as the paintings were originally considered “works made for hire,” the copyright for the paintings always belonged to Chrysalis, thanks to the 1909 Copyright Act. Copyright laws were amended in 1978, making it more difficult for commissioned works to qualify as “works made for hire,” especially in instances where a contract was less-than-specific. Unfortunately, the courts have heavily favored publishers for cases that dated prior to 1978, which means dad missed the cutoff by a scant seven years."
So what's the difference?
Jim Carrey was offered $350K for Dumb and Dumber, which he turned down (he wanted $400K). Then when Ace Ventura became a surprise hit, the offer for Dumb and Dumber was raised to $7,000,000, which he took. He made only $350K for Ace Ventura, but that opened the door to a bigger payday.
Based on the success of Dumb and Dumber, he was the first actor ever to be paid $20M, for Cable Guy, a flop at the box office.
You get paid for /previous/ success, and that's what the author's dad should have learned.
Edit: removed mistaken reference to Liar Liar, thanks
I recall hearing that such and such cover was done by the same person who did some other cover.
If you remember what Manhattan was like 25-50 years ago, you wouldn't be saying that.
In the 80s you could buy brownstones for $20k.
Do album cover artists ever get windfalls from successful? Unlikely I think, unless of course they were well known artists who insisted on royalties.
The album would have been similarly successful with any cover or no cover.
Also, it's very presumptive to assume I deserve a cut of your project just because it is successful. Not only do I claim my artwork had something to do with it (I doubt many people cared much about the album cover), but I can't give you one price and then extort you later because you actually have money now.
What the artist could have done is paint as many new versions of the image as he wants and sell them.
I've never actually bought art at an art fair, but I was with a friend who bought a ballet drawing once. I don't remember her signing anything to indicate use. She used her debit card and bought a painting which later hung up on her wall.
I feel like if this happened today, this wouldn't be acceptable. If I sell you a piece of art, you don't get the copyright for that art. You can sell the art like you sell socks, and the person who buys that art can resell it later. But you can't make copies and sell them as your own. Or stand in front of it, take a photo, and use it as a book cover claiming fair use.
If there is no contract, you haven't signed over your rights, and we should default on the side artists rights side of it.
> If they take that piece of art and copy it and put it on a book cover .. now that's not right.
...where exactly do you think book covers come from?
> If I sell you a piece of art, you don't get the copyright for that art.
If you sell me art that I'm going to use for a book cover, I will in fact get the copyright for that art. There's no other way for me to handle that.
[1] https://en.m.wikipedia.org/wiki/Moral_rights
https://en.wikipedia.org/wiki/Copyright_law_of_Germany
[update: copyright in German might be like this: https://en.wikipedia.org/wiki/Copyright_law_of_Germany]
Nobody got ripped off here, and everyone got exactly what they should have expected to get.
> I doubt many people cared much about the album cover
Back in the old days of 12 inch records, people did care about album covers. I mean yeah, the music obviously matters more but album artwork was actually pretty important as well.
One of the things I feel we've lost with digital music is the entire presentation of a record. That's not to say things are worse now because we've gained stuff in return (eg music has never been so widely available as it is now). But album artwork (not just the front covers) did actually matter to a great many people.
I agree that it would be different if my music discovery came from browsing records in music stores where look could influence me, but that is not how I ever went about it.
It's all about risk and option value. Most creative works never make a profit, so how much is a profit share worth? Most people need cashflow; if you need to pay rent at the end of the month, how much is a payout worth that's distributed over your life plus 70 years afterwards?
https://www.telegraph.co.uk/culture/music/rockandpopfeatures...
https://en.wikipedia.org/wiki/The_Great_Gig_in_the_Sky
Seems like the artist should have negotiated for a piece of the residuals but now regrets that...
A good album sells merchandise, which quite often is using imagery from the album front. T-shirts, posters, ... you name it.
Yes, the merchandise is bought as a reminder of a good experience but once it's out in the open, it becomes a form of brand advertising. Familiarity breeds interest (as well as contempt), and interest generates sales.
NB. Unrelated to the other part of your comment - I would happily buy a shirt with The Division Bell's cover even if I didn't like the album. There are limits, though. I'm NOT paying £75 for a cycling jacket with that image - such a thing was available in the V&A exhibition.
So a deal is a deal, if one agrees to the terms of a deal (oral or written), it must be honoured, otherwise there will be no collaboration. Imagine the marketer who helped putting the project on every headline turns around to ask for an extra cut of the success? Not possible, but he/she can certainly charge a higher fee for the next project.
Nowadays artists are much more educated about the value of copyright and we as art consultants/project coordinators help intermediate how deals are structured, so the value of the artist's work is properly recognised and rewarded.
As others have commented, success builds upon success, one must be able to see the bigger picture to be successful in any career pursued.
Sure thing. The deal was for an album cover. Perhaps $1500 in 1970s money is a fair sum for that, even for an iconic album.
Did the deal also include T-shirts, posters, and exclusive prints of the said cover signed by the band's front man?
That's where the contention is. Some people would say yes - work for hire is work for hire. Some people would say no. Pre-1978 copyright law is one side, later versions - on the other.
A deal must be honored - so it was, and then it was not.
But another way to look at this is, if the artwork is commissioned by the company for commercial purpose - much like if someone is commissioned to create a logo for a company - then the copyright is generally transferred to the company.
In the absence of a written contract, one can argue both ways, which I think is why the lawyers didn't think there was a strong case.
I persuaded her to charge £10k, which was around what she earned a year. She was going to charge much less. Neither of us considered future revenue from licensing or merchandise, so it was signed as a one-off work-for-hire deal. The manager still grumbled about how pushy she was being.
The imagery has appeared on countless merch items since. It’s hard to estimate the economic value, but it was surely a lot more than £10k.
She bought herself a new mattress and took a couple of weeks off.
Unlike OP’s artist, she never expected more. Creatively, it was a bit of a side project. But the truth is the band could have paid £5k or £10k a year in licensing fees without even noticing, so there’s something rather sad about it all.
You get paid based on the cost of replacing your work with someone else's work, not on the value of your work product.
But even if you want to argue for paying people based on value produced, your ex didn't produce that value. It came from the band. People buy band merch because they like the band, not because they like the art.
The aqualung cover image would be basically worthless right now if the artist had kept it while some other image went on the cover of aqualung.
And there's little you can do, unless you can nail down the exact culprit to a specific court.
For example: Apple is selling my music, without my consent or without paying due royalties. If I go to them they say "we pay royalties to the distributor", the distributor says "we only deal with labels" and my label has gone bust. Another label now has the rights. They don't know me. They don't have a contract with me. They have a contract with a deceased label that sold them rights they never acquired. So... yeah, it's never going to be fixed.
Surely, if that can somehow be proven in court, those rights would become void and you should get your music back. I know this might not be practical (the court system is not cheap, in most countries), but it's not a principle set in stone that "people get screwed".
On another note: whoever made Jethro Tull's cover for that particular album could have felt that way because it was their music that people were buying, not the album cover.
> In Ellis’ Midtown office, the last painting was delivered. Ellis cut him a check and said something to the effect of, "Oh thanks very much, these are great,” dad recalls.
Am I missing something here? Seems obvious why lawyers won't take on this guy since 1) there was no contract and 2) the no-contract agreement was not broken.
The thing that annoys me about cases like this is the music industry's vampiric determination to get every last dollar out of someone copying MP3s, while being blasé about actually getting money to the right creatives.
Royalty issues can destroy bands. Often the litigation can consume more money than the royalties are worth, because people are hung up on what they "deserve".
The guy sold a painting knowing it was going to be used by a rock band for an album and took a one time payment.
Then he spends the next several decades complaining about it, so much so that his son tries to extract some sort of narrative about the whole process to support his fathers position.
In some ways I can actually relate, so perhaps I’m projecting my own hurt from lack of Justice... but in this case the guy was paid and it was only after it was successful did he start wishing he got more money.
It is too bad he didn't negotiate a royalty agreement, but then they might not have given him the work, either.
FWIW if he had invested $1000 in the S&P 500 on January 1 of 1972, that investment would be worth about $100K today, according to some online calculators that I tried.
Granted, investing is a lot easier, now that online brokerages exist. It was probably not something that many artists did back in the '70s.
Generally speaking, and of course with all due exceptions, most painters, even many of those that were later acclaimed as masters, tend to have the need to sell their artwork in order to barely survive, so, besides the missing online brokerage, there would be the issue about the possibility of saving and investing.
Anyway, to provide another easy comparison, the Average Hourly Wage[1] in US in 1970 was around 3.50 US$, while now it is around 22.50 US$, assuming that buying power is correspondent, the US$ 1,500 in 1970 represent something like US$ 10,000, IMHO not that bad for three paintings.
[1] Series Id: CES0500000008 here: https://data.bls.gov/timeseries/CES0500000008
Well, if he got his $1500 he shook hands on (and which seem a good amount for the time, heck even today an artist can be paid less for an album cover), then he doesn't exactly has any legs to stand on.
"Is it ever okay to sell the rights to your work?
Milton Glaser was paid about $2,000 in expenses to create the I Love NY logo, one of the iconic marketing images of its decade. He later said, "I was very happy to do it. I was very happy about the consequences.”
Carolyn Davidson originally made $35 for designing the swoosh that Nike made famous."