This didn’t originally start life as an Ask A Writer question – it was included in an email and I thought, as I have had similar problems in the past, that it would be appropriate to tackle as the very first answered AAW question. I’ve rewritten the email so it forms a question <grin>.
“I hired an artist to produce a cover for my eBook and paid him a fee. Twelve months later, I still don’t have a cover. What should I do?”
The immediate question is simple – do you have a contract? If so, does the contract specify a due date and (potential) penalties for non-deliverance?
If there is a contract, you can – and should – contact the artist and request an update. If, for whatever reason, the artist is unable to provide the artwork, you can reasonably ask for a refund and try to obtain a cover design from another artist. An artist might claim that he did a chunk of work for you anyway (the cover sketch and suchlike) and so should keep the money, but I wouldn’t take that argument too seriously. You hired him to produce a usable piece of artwork and he hasn’t done it.
If there isn’t a contract, it will be harder to push the artist into either completing the commission or refunding your money. However, you can still contact the artist, explain you need the artwork by [whenever] and request an update.
You’ll have to decide if you accept the reason for the delay for yourself. (Personally, I tend to be more forgiving if I get told these things in advance.) If you think it is a good reason, you still need to decide if you want to give the artist more time or find a different artist. At the risk of sounding heartless, this is a business. You need a cover to publish a book. If you want to give the artist more time, you probably need to be very clear on the due date.
If not, recovering your money may be difficult, based on your (and his) location. You may find that it costs more to get the money back through legal means than you’ve already spent. But you’d probably need to talk to a lawyer about that.
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There is a certain tendency amongst self-published writers to forgo contracts and rely on gentleman’s agreements between writers and artists. I understand the impulse – and I don’t like involving lawyers any more than the next independent contractor – but the writer is buying a piece of artwork. It is important to make sure you know what you’re actually getting and that you have full rights to it. Failing to dot every ‘I’ and cross every ‘T’ now could cost you later.
Most professional artists have a standard contract. But if you have to write your own, it must include:
-A description of the design. You can be vague or achingly precise – I have a habit of saying ‘space combat’ or ‘exploding starships’ – but the vaguer you are, the more room there is for misunderstandings. A line reading ‘Brad Pitt in a marine uniform’ leaves the artist with the option of dressing Brad as a Jarhead or a Bootneck, depending.
-A description of the formatting requirements. You want something you can actually use. I generally go for ‘JPEG suitable for Amazon Kindle’ as a basic requirement.
-A statement of the writer’s rights to the artwork. You want an exclusive piece of work. (Think of it as buying a car – the old owner doesn’t have any rights to it once the money exchanges hands.) Most artists will want to keep the right to use the artwork in their portfolio, which allows them to show off their talents, as well as being specifically credited for the work. You should let them do it – I’d be more worried if they didn’t want to do it.
-A due date. If you need the artwork by 01/10/2017, you have to specify that in the contract.
-Price and a payment schedule.
The artist will want something at the start – or when the preliminary sketches are produced (so there’s agreement on the basic design). You need to stipulate when (and how) those payments will be made.
-A statement of what happens if the artist is unable or unwilling to complete the job to the writer’s satisfaction.
There are quite a few variables that need to be taken into consideration. A typical ‘exploding spacecraft’ cover is one that can be repurposed, if necessary; a cover based on a very specific design may not be reusable. The artist will probably want more money up front for the latter!
This is a delicate balancing act. On one hand, the writer wants a usable cover and doesn’t want to throw money away for nothing; on the other hand, the artist has put work into the design and will want something for it, even if the writer cannot use the cover. Think very carefully before you offer too much money up front – ideally, make sure the artist has a good reputation before you pay too much before any work is actually done.
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As I have said before, writing is a business. If you want to make money, you have to approach it as a business. You’re hiring an artist to produce a usable piece of work. If the artist can’t or won’t keep their side of the agreement, you have to go elsewhere. Cover yourself because no one else will watch out for you. Write and/or read the contract carefully!
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The Chrishanger 
From a contracts perspective (at least in the US), if you hire the artist to provide the art work and the artist breaches that contract, you can receive “expectation damages.” In your example, expectation damages would include a full refund plus any price difference you had to pay another artist to provide the art work. In my experience, it is best to send a demand letter stating the party is in breach because the party may be allowed a reasonable period of time to cure the breach unless the contract specifies otherwise.
Another major issue for this type of agreement is intellectual property. There are a lot of pitfalls that can occur if you do not obtain ALL rights in the artwork. The artist will retain all rights in copyright not assigned to the author, and as such, you need to be very specific as to what rights are assigned with respect to what the artwork will be used for, where it can be sold, and whether you have the right to prepare derivative works. As an example, if you limit the agreement to a book in UK, you may need to renegotiate the rights to the artwork on a movie deal in the US or a book deal in Japan. In many countries artists also have moral rights and some allow the right to revoke a granted license after a period of time (usually a long period of time ~25+ years). Moral rights can provide the artist with a right of attribution and integrity. The integrity rights can allow the artist to prevent intentional distortion, mutilation, or modification of the work which would be prejudicial to his or her honor or reputation.
In the US, we typically include contract language that specifies the artwork is created as a work for hire (which basically means you own the original copyright instead of having an assignment), but contracts also have a fallback provision that if a court deems the work not to be a work for hire, than the artist also assigns rights to the work. With assignment provisions, its very important that the contract specifies that the assignment is occurring presently. Stating the party agrees to assign in the future is not an assignment. You will need to litigate the matter in order to get a court order for an assignment before actually owning the rights. Assignments that include conditions are also very dangerous.
One last point – if you do not have a contract, there may be a contract anyway. In the US, we have a doctrine called the Statute of Frauds (SoF) which applies to oral agreements. Essentially, the SoF provides a number of circumstances where an oral agreement is not enforceable. The most relevant one to this issue is that the work must be able to be completed within a period of one year. (if it were for the sale of a good rather than a service, the good must be worth less than $500). If you are hiring someone to make a book cover, this would be able to be completed within a year. The terms of that agreement may be very difficult to argue in a court, but there is still a basic agreement, which is enforceable. As such, you can still try to recover expectation damages if they blatantly do not deliver.
I am providing the above for edification purposes only. This is not legal advice. Please consult an attorney before relying on any information in this post.
Just to follow up and make clear one of the points Adam raised – in the United States any sale, use, assignment of any item protected by copyright such as artwork MUST BE IN WRITING. Also, the artist does not have to apply to the copyright office to be protected by copyright law. However, if the artist wants to collect money damages the artist must have applied for a copyright, otherwise the artist is only entitled to injunctive relief.
Great points! Thanks for filling the gaps. Another note, you need to register the copyright within 3 months of first use in order to obtain statutory damages. Statutory damages means you can collect money damages without proving actual damages. In the US, you can register on the copyright website without an attorney. It is very simple and costs $55.
Makes me wonder how many of us are US IP attorneys.
I can’t comment on the legal issues, but as someone on the other side of this coin (an artist), I can say that it is important to have clear expectations. Communication is key, if a deadline is missed and they haven’t contacted you that’s a pretty bad sign. Short of them being run over by a bus they should stay in touch with you. Sadly some artists can be flaky. Which is unprofessional and just bad all around.
Also unprofessional is to ask an artist to work for free “for the exposure” or some other such nonsense. Unless they’re a good friend of yours/ they volunteer their services. Even then, it’s better to show that you value an artists work.
One of my artistic friends has a saying they throw at free for exposure requests “My kids can’t eat exposure and people die from exposure.”
btw coverart, do we get a coverartwork for Gordians knot in a while?
Not yet – the artist is still working on it.
Chris