Advice Requested- Album Art

[dakotabailey.livejournal.com]

This isn't a beware, more like a request for advice.

A couple of weeks ago, I ran a "doodles for donations" drive. The person in question (we'll just refer to him as H for now unless there's a huge need for everyone to know his name in which I'll be more than happy to provide it) paid me $2.00 and I came up with a digital sketch for him, seen below (obviously shrunk down).



The digital sketch was sent to him on July 2nd, 2011. I hadn't gotten a response from him so I sent him a note on FA on July 7th asking if he had received the picture. He confirmed that he had and that he loved it.

On July 10th, he sent me the following note

Hey I wanted to say yes i got the sketch and I absolutley LOVE IT! and i wanted to ask something of you.
I have an EP i plan to put out soon titled "Fuzzy Fuzzy Fuzzy" and I want to use the picture as album artwork for the release, so out of fairness and respect to the artist I am asking your permission to have my artist friend make a colored version of the piece that I can use as album art. If you are cool with this you will of course receive a Digital copy of the release in any format of your choice a few days before the release.
Please respond at your leisure, I am still currently in the mastering phase in working on the EP as well as I am waiting for a few Remix contest Entries to come through.
Have a wonderful day <3

While a little irked that he's having someone else make a colored version of my piece, I cannot really say anything about it as my TOS does allow it, as long as I'm still credited for the line-art. No big deal here. I responded with the following note

Hi there!
Thank you so much for the offer and I'm honored that you would like to use my art. First off, I have to ask, are you selling the EP or is it just a free, downloadable deal?

He responded with the following

yes I am selling the EP @
[link to his website]
and of course you will recieve credit on the album for the art
also you will retain all legal rights to the artwork of course, i respect the artists rights on this account, if somthing came up at anypoint you can easily request me to remove the art from the EP <3 and as I said when the EP is mastered and ready for release you will receive a Digital copy in any format of your choice.

Thanks to another LJ user, I've come to learn that he's already using this sketch to promote his EP on both Tumblr and on Soundcloud. Again, it's personal use, it's fine with me. My signature is still on the sketch.

I'm questioning if this comes up as using my art for commercial usage (which my TOS specifically states against). It's not like he's selling a portfolio or prints of the drawing or anything like that.  Even if it didn't come to this, would it be selfish of me to ask him to pay for commercial rights to the image or if I should just take the free EP (which, to be perfectly honest, I probably won't listen to). I'm thinking nothing more than $15. It IS A sketch after all, which is completely boggling my mind why he wants to use it for album art when I've done a more completed piece for him.

Thanks for your help, everyone! If you need any caps or any more information, please do not hesitate to ask!


Edit: 7/11/11
Thanks everyone for your suggestions! I have sent him the following email and will be waiting for his response

Hi there,
First of all, I'm really glad you like the sketch I drew for you and that you want to use it for the cover of your EP. I would've been happy to have colored it for you as well if you had asked (for an additional fee, of course). I'm going to have to ask you to take down the image promoting your EP on your album promotions on both Soundcloud and Tumblr. By using using it to promote something that you later wish to sell, it's using the image for commercial means which is against my TOS found here - http://www.furaffinity.net/journal/2407131/. If you would like to use the image for the album art, I can either sell you the complete rights to the image which basically means that you're free to do whatever you would like with it (T-shirts, posters, whatever) or I can sell you the non-exclusive rights which would just allow you to use the art for the album cover.
Please let me know what you decide to do!

Edit: 7/12
He responded to me with the following

I completley understand what you mean and  i will go right ahead with removing it, however i will point out that the sketch at this point has not been used to promote  somthing i am selling, it is set as the default picture for the Free mixtape i put up, but i will go right ahead with taking it down :3. and I don't need Full rights for the simple fact I am a for lack of better words a "Poor" musician so I do not have a whole lot of cash to sell shirts and posters and Etc. So I would only need to get permission to use it as album artwork. however i will need time to get the funds to buy the rights to the piece. as right now i am trying to get some sales going (Bad sales currently)


Apologies if I sound inexperienced or have asked inane questions. This is the first time I've dealt with something like this.

Comments

[raeraesama.livejournal.com]

If he's selling the EP, yes I believe it counts as commercial art much like cover art for novels is commercial art. Your art is essentially the face of the EP.

[badkitty.livejournal.com]

it is well within your rights to ask for compensation for drawing the image that he is using to flag his EP.
in all honesty, $15 is really, really low.

[kyetsu.livejournal.com]

I was going to say something like this. Someone is paying an artist $2 for a sketch, and having "an artist friend" make a full-colored version to use as album art? Something just doesn't sit right with me. Also, I'm not sure if you can charge royalties for that kind of thing, though I'm looking into it right now. =P

[taelifoe.livejournal.com]

From what I can tell, royalties can be charged only if the artwork is licensed, at which point a license to sell reproductions of the artwork is granted by the artist. I did some quick reading and pulled this up: http://www.nolo.com/legal-encyclopedia/licensing-artwork-negotiating-monitoring-royalty-payments-30093.html;jsessionid=89C7B2AB830758467788F64D94B89AE6

[kyetsu.livejournal.com]

Ah, thanks for the info! I've been playing around with the thought of doing artwork for album covers, but I wasn't sure how payments would work. That page looks like a lot of help!

[taelifoe.livejournal.com]

Sure thing :) It was a good thing to look up, as I wasn't totally sure on it, myself.

[magickitsune.livejournal.com]

I'm curious to see what people say to this, because I've always wondered how much one should charge for small-scale commercial rights to an image...

[raeraesama.livejournal.com]

OT, but I love that Duzell icon <3

[tanginello.livejournal.com]

Seconding the thought that $15 seems really low for commercial rights. It may be "just a sketch" but it's still going on an EP that he'll be making a profit off of.

Honestly, this whole situation seems kind of weird. If I were in your position I would tell him he couldn't use your image as the cover and cite the ToS. This guy seems kinda fishy.

[ocelotish]

Using that image for his EP (whatever that is) is commercial usage! I'd say even advertizing it with the image would be. To put it another way, one of my profs at school had a job to paint a background for the packaging of a fishing lure or something like that. He got paid for the rights to that piece even though it's far less important to advertizing than your piece already is. Commercial use is not just making prints, and artists are commonly hired for album covers and what not.

I'd say you could charge him for the rights. Consider this... if you were a photographer that took a photo in B&W, and he had someone add color, he still has to pay to use your photo.

[ocelotish]

As for the price of the rights, well, I'm guessing it's a small scale operation. What you might do is charge for the non-exclusive rights to use it digitally, only for ___ website and only for a year (or whatever) that'll make it cheaper while not ripping off you. Treat it as an editorial illustration. Because the rights they want are non-exculsive, short lived, etc. they're a lot cheaper than say a kids' book, where they want the rights forever.

[ankewehner.livejournal.com]

, so out of fairness and respect to the artist I am asking your permission
That line raises my hackles. It sounds like he thinks he's generous, doing things he doesn't have to do, when in fact he is required to get your permission.

he's already using this sketch to promote his EP on both Tumblr and on Soundcloud. Again, it's personal use
Nope. If he's using it to promote something he's planning to sell, it's commercial use.

I can see nothing wrong at all with you charging him for that.

[kyetsu.livejournal.com]

"If he's using it to promote something he's planning to sell, it's commercial use."

Exactly. The artwork is the "Face" of the EP. When people see this particular picture, either as a sketch or as a full-colored version, they will associate this picture with the EP being promoted. The fact that he's already promoting the album with the art without getting 100% approval from the artist (at least, that's what I gather from the OP) just doesn't sound right.

[ljmydayaway.livejournal.com]

If you don't mind having him use te image, I would sell him the copyright/commercial use for it. I'd personally sell it for ~$100, but that;s really up to you, and depends on how you feel about it and how big you think his projectis, etc.

He;ll probably bawlk at the price and stop using it.

sorry for the shitty typing, there's a klitty on my keyboard.

[mpd-84.livejournal.com]

They kinda sound like they're trying to guilt trip you with that last response...

[dakotabailey.livejournal.com]

Good thing I'm not falling for it ;)

[ogawaburukku.livejournal.com]

My advice kind of goes against everyone else's advice.

My guess is the guy is going to make $10 tops for his album. $20 if his parents buy a copy. If you can sample his music and tell it's not going anywhere, I wouldn't bother with it too much. And actually, having the guy's friend do it just means less work for you. You got two bucks for a quick sketch, that's not bad. You'll get some publicity (but honestly, probably not, since I don't think he'll sell much), and he was nice enough to inform you about it rather than you having to find out through the grapevine.

What I would actually suggest you do is stay on semi good terms with the guy, in case he does prove successful, and then if he seems to be going places offer to do the artwork for his next album. A full, completed pic with the pricing you desire.

I just don't see this getting any success. If it IS successful, to some degree, he'll likely follow up with a request for new artwork. That's the time to strike, so to speak.

Something else you could do is ask for a reasonable (for him) commercial fee that's something affordable for him for just that sketch and then offer to promote his album on your website or something.

I doubt you'd get a cent if you asked $100 for it, and he'd probably stop using your services for future potential commissions. I don't know, that's just how I see it. People will probably disagree with me, but as long as he promises not to use the art on t-shirts or whatever, I don't think you're going to be losing anything. It would be better to stay on his good side and offer your services (for a better fee) for something like those shirts or for stickers. It's up to you, but if I did a sketch I didn't put much thought into, and I got paid for it, and some lame musician wanted to use it for his lame album then it wouldn't be a big deal to me. It's not like he's Kanye West or Chris Brown or someone who will actually make a profit.