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European laws & comments:
Spain| Valencian Association of Professional Illustrators| by Nacho Casanova
The spanish Law of Intellectual Property (LIP) embraces
explicitly illustrators and comic authors. It acknowledges the authorship
of a work regardless of its artistic value. The LIP is divided in two
main parts:
Moral Rights
-No use can be made of a work without the author's permission.
-Author's rights can't be refused nor transferred to others except to
heirs.
-Authorship must be acknowledged.
-Authors have the right to sign with their real name or with pseudonym.
The use of pseudonyms doesn't imply any loss of authorship.
-Respect to the integrity of the work. A work can't be modified without
the author's permission.
Economic Rights
-The commercial use of a work belongs exclusively to its author. The author's
permission is required to make use of any work.
-The validity term of these rights reaches up to 70 years after the author's
death.
-The purchasing of original work is differenced from the buying of the
economic rights attached to the commercial reproduction of the work. The
original work must be returned to the author after its reproduction.
Basic legal conditions
-Each different version of a work (mediums, languages, territory of use,...)
should give place to different specific contracts or agreements.
-The contract or agreement should include at least: Amount of copies to
be reproduced; duration of the cession of rights; maximum allowed by law
is 15 years; the geographic area in which the work will be commercially
used.
As a general principle, the economic value of the author's rights should
be proportional to the degree of use.
Comments from APIV (Valencia-Spain):
These are the basic points of the Spanish Law of Intellectual
Property. However in some aspects the law can give place to confusing
interpretations that in most cases are contrary to the authors' interests.
Anyhow it must be said that if authors were better informed they could
protect themselves more effectively against abusive interpretations of
the law. We would like to finish adding three notes concerning our law:
-The Spanish law contemplates the possibility of works done by various
authors in collaboration, sharing the total amount of economic rights
proportionally among them according to their degree of participation.
-There is an article in our law that is generally misinterpreted. This
article presents the concept of "collective work", and it alludes to works
such as encyclopaedias, illustrated dictionaries, an animation films in
which a number of contributors work together. In these works the rights
belong just to the publisher or producer. In a collective work the participation
of one contributor can't be differenced from that of others, because they
all work under rigid constraints supervised by an art director or similar.
This point leaves an open door to frequent abuses against the authors'
rights, for many publishers apply the category of collective work to works
that aren't really collective.
-At last we will remark that in the Spanish Law of Publicity the economic
rights of any work done in this field belong to the client who made the
commission unless something else is specified in the contract.
Germany | IO - Illustratoren Organisation Volkmar | by Volkmar Döring
Nowadays, some publishers here in Germany get the idea they
want to 'outbuy' the illustrations, meaning they want to get the rights
for any purpose and kind of publishment, for any amount, and maybe (in
few cases) even becoming the owner of the artwork. But if that's the case,
it must be written down so in the contract, very highly paid, and yet
never will cover the creatorship of the works, for that one can never
(!) be sold. Common for our illustration jobs is, instead, that the publisher
pays for the right to publish them, over a period that has to be defined,
and in an amount that has to be difined too by contract, and they do not
posess the works of art afterwards. (Of course, they can additionally
speak the intention to buy, at a price that also has to be defined.) But
instead, we have to see that, in our contracts, we get our percents again
for each new form and purpose of issueing, and get noticed about these,
also when a book gets re-issued, and get a fair amount of percents for
the passing-on of any rights (film, merchandizing etc.) to a third party
written into our contract.
New and very fine in our German Publishing Rights is, that
any unfair, while too low payment written down in a contract can be fought
- even after years - when the work turns out to be a success, so the illustrator's
contribution can, finally, be honoured equally. Another bad habit becoming
more and more common among publishers is the effort of 'streching out'
the termin of paying our bills ('oh it must be stuck somewhere here in
the house') until instead they get norticed by our lawyer. So the money
works longer for them, while in the meantime, we get close to losing our
bank credits. In these cases, you even without going to court are allowed
to add "8 percent above the current base zins (?) of the German Bundesbank"
(now 1,13), making 9,13 percent to add to your bills, and the illustrator
can do this beginning from the 15th day if s/he has written on them "payable
within 2 weeks".
There's a telephone number "mediafon" you can call that
helps you with problems, and an organisation paying you an amount for
each published book or film (based on the no. of illustrations issued)
for honoring its presence in the public libraries (VG Bild/Kunst). That
makes it important becoming a member, it's free and makes a fair sum between
100 and 1000 Euro each year.
Sweden | Svenska Tecknare | by Anders Suneson, Lennart Eng & Inga
Sundell
The survival for an illustrator in Sweden is much based
on the copyright law. To maintain the control of our artwork in both financial
and moral aspects is crucial.
We do have a long tradition of publisher that was more concerned
about the illustrators. Today we have a harder climate and a changing
structure with big publishers that have a variety of needs and ways to
enlarge their profits. The tendency today is to ask for and claim all
rights at once in order to be able to explore the artwork in different
ways. This could be a threat for the illustrators and turn us in to some
sort of employees, without all advantages of being employed.
We need to join forces and act against the tendency of
making the copyright a right for those who use and exploited our artwork.
The basic idea with the copyright law is to stimulate creators, other
laws and system should stimulate those who make profit.
Today in Sweden our association is waiting for the implementation
into our law of the new copyright directiv from EU. This is an area were
we use lawyers to help us and we do work together with other authors associations.
Concerning reproduction rights in Sweden we do have a system
via a license-agreement in the copyright law that bring us an income from
photocopying in the school system. We are now distributing part of these
money back to individual rights holders in a system similar to the German
Bildkunst system. Our association believes that this area is very important
and we put a lot of effort into this both by following what's going on
with the law but also to support individual members to claim their rights.
The reason is that this is going on everyday, and we can see that there
is a harder climate today.
Italy | Associazione Illustratori | by Paolo Rui
According to our lawyer Avv. Andrea Pogliani, our national
legislation regarding specifically our profession is not in good shape.
The state legislation is based on a copyrights law first
drafted in 1941 and later updated through many decades, but with no specific
reference to illustration and illustrators whatsoever.
Besides, all modifications were added to the original principles
with no particular rationale and are often subjected to interpretation
by judges during litigations in court.
This ample margin for doubt and discretion on the judges
side leaves us in a state of constant uncertainty about which are the
rights granted by law and in which case these very rights put us in a
firm position when talking to the counterpart, be them publishers, advertising
agencies or any other company or organization which may need illustrations.
There are no such things as official contracts for our category
except in advertising, for which we have a "model" that was agreed upon
back in the '80s with the Advertising Agencies' Association and which
of course needs some updating especially for what concerns foreign rights
and new technologies. On all the other fronts we are often left defenseless
due to the simple fact that many big publishers and agencies have their
own legal counselors which advise them how to prepare contracts that may
avoid the application of the copyright laws altogether and illustrators
are more and more often left to face a take-it-or-leave-it dilemma.
Hollland | BNO | by Theo Barten
In the Dutch illustration / design market it is common and
provided for by the Dutch Copyright Act 1912, that the copyrights belong
to the freelance illustrator or designer. The illustrator/designer will
grant a license for use of the design, limited or not, depending on the
assignment given by the client. Most of the time the illustrator / designer
receives a fee or royalties for licensing. On the Dutch market however,
there is an increase of buying power of the leading firms in Holland,
mostly publishers. Which means that all the intellectual property rights,
including all rights for re-use and future ways of exploitation, have
to be transferred to the publisher for a one time fee or lump sum. Besides
that, the illustrator / designer often has to warrant and agree to indemnify
the publisher against all actions, claims, costs, demands and expenses
which may incur as a result of the illustration / design. In theory the
freelance illustrator / designer can never agree to this. Illustrators
or designers, who are represented by an agency, are in better position
to deal or negotiate about these unreasonable contracts.
France | La Maison des Illustrateurs | by Jean Pierre Labesse
Since the sixties, we have seen an evolution of, both the
role that the artist wants to play and the place of its practice in our
society. Also, the new technologies have certainly contributed to a greater
definition of artwork ('oeuvre de l'esprit') by law by including works
produced and distributed industrially. Different industries have emerged
such as the film's, the book's or the music's industry and thus, new channel
of communication. The artist uses television, cinema or the web to distribute
their work to a lager public. However, this mass production is quite compelling
for both the artists and the distributors to the extent that the work
will need to please an always more demanding audience. This has changed
the relationship between the distributors and the artists and the intellectual
property law reflects the pressure imposed on the artists. However, far
from being able to prevent abuses, the statutes are most of the time applied
at random.
Whether it is a small company choosing to apply only certain
regulations, -such choice being even sometimes specious, or whether it
is the legal department of a bigger company offering then to the artist
a very tied - up contract, the result is always the same; Too little protection
is given to the artists. In all instances, our association provides them
with minimal guidance as to what they should particularly pay attention
to. We strongly advise the young authors to make sure that they are entitled
to vary the most litigious provisions of the contract and in any event,
to balance the risks to accept the contract as such with the benefice
they could gain from the relationship. But let us face it; In this kind
of relationship, the one in the stronger position always wins and it is
never the artist!
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