My Dad Painted Jethro Tull’s ‘Aqualung’ Cover and It’s Haunted Him
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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.
[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?
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.
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.
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.
And 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.
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.
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.
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.
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".
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.
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.
"[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?
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.
"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."
https://www.telegraph.co.uk/culture/music/rockandpopfeatures...
> 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".
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.
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
Seems like the artist should have negotiated for a piece of the residuals but now regrets that...