This post is intended for general information purposes only. It does not constitute legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly. Many states have pro bono programs to assist artists.
Gotta include the above statement for legal reasons. Unless you live in Maryland, I cannot provide legal advice about a specific situation. But I can provide general information about the law without running afoul of licensing regulations, so let me talk generally about some intellectual property issues: non-commercial versus commercial licenses, use limitations, and bonanza clauses.
As I mentioned in an earlier post, your maps are your intellectual property (IP); you hold the copyright in them the moment you create them. When you take commissions for maps, you can assign your copyright to the person paying you (which is what happens if there is “work for hire” language) or you can license your copyright. Remember that if you assign your copyright or exclusively license it to someone, you can’t use that map at all – you can’t even post it on your website – unless you retain a license for yourself.
For the rest of this post, I’m occasionally going to use “Commissioned Work” to refer to the map you’ve made for a client. You can call it whatever you'd like, just define the term (see my earlier post about contract definitions).
Commercial v. Non-commercial License, Use Limitations
Licenses can be for commercial use or non-commercial use. Getting paid for a commission does not mean you have to also grant a license beyond a limited use non-commercial license (you don’t even have to grant that, but clients reasonably expect it). You can think of it like buying a car – you pay a set amount for the basic car, but if you want weatherproofing and special rims, that’s extra. It’s the same for a commission – the client is buying the basic map (or digital image of the map), but if they want to use it for special purposes, that’s extra.
Here’s some possible language for the grant of a non-commercial license: “Cartographer hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, world-wide, perpetual, paid-up, royalty-free right and license to use the Commissioned Work for non-commercial purposes.”
Here’s possible language for the grant of a very broad commercial license: “Cartographer hereby grants to Client an exclusive, [OPTIONAL: royalty-bearing,] world-wide, perpetual, non-transferable (except as a sublicense), sublicensable right and license to the Commissioned Work to make, have made, use, sell, offer for sale, market, lease, import, have imported, or otherwise exploit the Commissioned Work.”
You can place limits on both commercial and non-commercial licenses. For instance, let’s say your client wants to use the map for her D&D game. That’s a non-commercial use. But if you want to limit your client to using the map ONLY for her D&D game – maybe you don’t want her to post it on her website or give it to someone else to use in their game – you can limit the non-commercial license to game use only. If so, you could say “Cartographer hereby grants to Client a non-exclusive, paid-up, royalty-free license to use the Commissioned Work solely for the purpose of Client’s non-commercial D&D campaign.”
Another limit might be geographical – you’re licensing your map only for use in the United States, for instance. Or temporal – you’re only licensing your map for a period of 2 years. The more limitations you apply, the less a client will want to pay for the license, so keep that in mind.
That said, if there is any chance your client will make money from the map, you should consider charging for a commercial license. You can charge an initial licensing fee, an annual licensing fee, and/or royalties. The royalties can kick in immediately, so that you get a certain percent of every sale, or they can kick in once the client hits a certain number of sales. The annual licensing fee can kick in later, too. Basically you can structure payments and fees in any way you want (although your success at getting clients to agree to hefty payments and fees will vary). If I were making a map for a private individual to use in his personal game, or to hang on his wall, I wouldn’t charge a licensing fee at all; I’d just wrap everything up in the overall cost of the map. But if I were making a map for an author who sells a good number of Kindle books, I might consider charging some type of fee and/or royalty. And if I were making a map for a company, I would absolutely charge an initial licensing fee and would also consider annual fees and royalties. A lot of this will depend on how “in demand” you are as an artist and who your client is.
Here’s an example of license fee language: “Client shall pay an initial non-exclusive license fee of [insert dollar amount] within thirty (30) days of the Effective Date of this Agreement. Client shall pay an annual non-exclusive license fee of [insert dollar amount] on [insert month and day] of every year during the term of this Agreement.”
Here’s an example of royalty language: “During the term of this Agreement, Client shall pay to Cartographer an earned royalty based on the total net sales of any product containing the Commissioned Work. The royalty rate to be paid shall be [enter percentage – usually 1% or 2%]. Client’s obligation to pay royalties shall continue until the expiration of Cartographer’s copyright.”
Bonanza Clauses
What if you want to help out a fellow artist and are willing to work for free, but want to get compensated if the client makes a boatload of money? Bonanza clause are a great way to work free of charge or at a reduced rate but guarantee that if your client starts making a bunch of money off your map, you will get to share in the success.
Here’s some bonanza clause language that could be added to the Royalties section of a license agreement: “If the cumulative net sales of products containing the Commissioned Work exceed $10,000, Client shall pay Cartographer a 1% royalty on the total net sales. Payment shall be made on a quarterly basis beginning one month after net sales exceed $10,000.”
By the way, you can include royalty and license payment sections even if you don't use them. That serves two main purposes: (1) you're letting the client know that licensing fees and royalties are industry standard terms, and (2) you can use a single template agreement and keep the paragraph numbers consistent across all clients. If you want to do this, it would look like: Section 9, Royalties. [Reserved.]
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