Who owns the art, the painter, or the purchaser?

Today, I got a note back from the Copyright Office about whether I actually owned the copyrights to the art in my filing (which included the text I wrote and the art I commissioned and revised with freelance artists).

Here’s what the copyright examiner stated:

Copyright initially belongs to the author(s)/creator(s) of a work. Supervising or paying someone for their services does not necessarily transfer copyright ownership. It appears some of the artwork in the deposit may be pre-existing artwork. The author of the artwork is the person who originally created the artwork. Please explain if you are the creator of some, all, or none of the artwork.

Okay, fine. But here’s what I explained to the examiner.

I wrote the manuscript. I sketched, designed, and described the artistic concepts on which the illustrations are based. I provided these drafts to the artists. I have reams of text threads that show my specific and ongoing instructions to them. I approved revisions to the illustrations, and paid for each one. I kept paying until I was satisfied with the final result, then the artists and I parted ways. In many cases, I provided extensive details about the specific features of every piece of artwork, but allowed the freelance illustrators to have some creative freedom in realizing my designs. Some of those artists, in fact, have asked PERMISSION to post the final versions of the art to their online portfolios, in implicit recognition that they were doing work for me, not creating an original work of their own accord.

One might think that whether I own the art is a question of legality, whether the copyright is awarded to me would depend on legal proof or legal documentation. However, oddly enough, the Copyright Office says that:

Please Note: We cannot interpret legal contracts or documents, as such please do not send them to us.

So, I suppose it’s a legal issue but…not. It seems like more of a judgment call. Strangely, though I am a business professor who has taught entrepreneurship classes and detailed some of the nuances of intellectual property protection, the awarding of these rights is a bit hairier in the execution.

Now, to be clear, I’m all for giving artists the credit for the IMPROVEMENTS they made to a design that was not their own, a concept that did not belong to them, and a vision that they helped to realize. However, in my view, just as an architect owns a building design and the builder helps her realize that design, so, too, does an author who describes and details (and drafts) an illustration own the copyright to that, while the artist who helps finalize it deserves payment (and they got it).

We’ll see how this turns out.

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