
My Dad Painted Jethro Tull’s ‘Aqualung’ Cover and It’s Haunted Him - NaOH
https://theoutline.com/post/4490/jethro-tull-aqualung-cover-artist-burton-silverman?zd=1&zi=2477you7
======
legitster
I couldn't imagine getting so caught up in one piece of work. I'd like to
imagine I would have just immediately turned around and told everyone I was
the guy who made the cover for Aqualung and focus my energy on the next
project.

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.

~~~
laumars
Others have already echoed my thoughts on copyright, so I won't repeat that,
but I do want to raise one other point you touched upon:

> _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.

~~~
samastur
We did but at least I, personally, have never bought or not bought a record
because of its cover.

~~~
Griffinsauce
You can't honestly know what subconscious effects seeing that cover had. To
say it had zero effect is pretty disingenuous when you take into account what
we know about human decision making and a massive global ad industry.

~~~
samastur
Of course I can say that for myself. Every record I ever bought was because I
knew at least some of the music on it beforehand and went to shop to get it.
Cover could influence how I felt about the whole package afterwards, but since
I never not bought something because how it looked, I can be pretty certain
that it didn't matter for my purchases.

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.

------
paulsutter
He should have leveraged the success of the album to get high paid work.

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

~~~
bshepard
Do markets for art work in the same way as markets for talent in film? To what
extent does success in mass media illustration correspond to success in
selling singular art objects?

~~~
toast0
It doesn't need to, if success in mass media illustration leads to success in
attaining mass media illustration contracts.

I recall hearing that such and such cover was done by the same person who did
some other cover.

------
tyng
I work in the realm of public art projects and thus have collaborated with a
lot of artists, mostly painters and sculpters. I must say the success of any
piece of artwork - especially the ones created with the public in mind - is
not the work of a single man or woman, but the result of the collaboration of
a team of professionals - designers, marketers, financiers, metal bashers,
crane operators, all the way down to the assistant who helped review the
contracts.

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.

~~~
romwell
>So a deal is a deal, if one agrees to the terms of a deal (oral or written),
it must be honoured

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.

~~~
tyng
Good point. I'm not familiar with the American copyright law, but you're
right, nowadays in most countries even if a piece of art is sold to another
person, the artist still holds the copyright (the right to make copies) unless
copyright transfer is specified in the contract.

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.

------
TheOtherHobbes
This happened to an ex of mine. While we were together she was asked to do the
album artwork for a top international-name stadium-filling band.

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.

~~~
thaumasiotes
> 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.

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.

------
ada1981
This is such an odd story.

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.

------
donatj
I have trouble feeling bad for the guy. He was paid what he had agreed to.

~~~
wpietri
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?

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.)

~~~
kbenson
> 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?

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.

~~~
Dylan16807
>> 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?

> 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.

~~~
ozim
Ok it is quite normal that people do not understand risks and costs involved
in running enterprise.

[https://en.wikipedia.org/wiki/Damocles](https://en.wikipedia.org/wiki/Damocles)

~~~
Dylan16807
Is it really such a huge burden to only get 95% of the rewards, as the person
taking risks?

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...)

------
crystaln
The nature of employment is that we produce works for hire. I don't see any
exploitation here.

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.

~~~
soperj
Would they still be selling t-shirts and posters of any cover or no cover and
pocketing that money?

~~~
crystaln
Nobody can say for sure. However the music is why the album sold, and I think
why people want to associate themselves by buying t-shirts and posters.

~~~
soperj
Bullshit. I've seen people wearing motorhead shirts for instance that have
never heard motorhead, and didn't even realize it was a band.

------
sklivvz1971
Not surprised, the stories of artists signing for X and getting never properly
compensated (either for X or X-extended-to-anything-else) are countless.

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.

~~~
toyg
_> They have a contract with a deceased label that sold them rights they never
acquired_

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".

------
cwyers
The whole article seems to vastly overstate how important the cover art was to
the financial success of the album. People rarely buy t-shirts of an album
cover because they really like the artwork in isolation; it's very often
because it reminds them of the songs on the album.

~~~
bostik
There is a self-enforcing cycle.

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.

------
coldtea
> _But dad’s earnings had a hard cap. 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. No written contractual agreement was drawn up, and, much
> to his eventual dismay, nor was any determination made about future use._

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.

------
bmpafa
key part:

"[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."

~~~
crystaln
And after that the copyright transfer was inserted into contracts.

~~~
shub
Not necessarily. At least for writing gigs my wife has done, often they
involve assigning all rights but not _ownership_ to the client. This is
spelled out in the contract, I imagine to avoid controversy over whether there
was "work for hire" or not. On the other hand, every dev job I've taken has
had me sign a thing saying that the work I do is work for hire and the
employer owns the copyright. Seems fair, they're giving me a paycheck after
all.

~~~
crystaln
Would this artist have made any money if they had assigned all rights and not
ownership to the client? No.

So what's the difference?

~~~
shub
In practice, none. I just think contract law is interesting.

------
bencollier49
What a strange article. He was paid a flat fee for some work and appears to
have got greedy and bitter when the album was successful.

~~~
zwischenzug
Yeah, I don't get it:

    
    
       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.
    

It's not even in dispute. There was a contract, so what if it was not written
down? Give me $1500 and you can do whatever you want with my three paintings.
Handshake. Does the typesetter deserve royalties too?

------
jimmydddd
[http://sethgodin.typepad.com/seths_blog/2018/05/on-behalf-
of...](http://sethgodin.typepad.com/seths_blog/2018/05/on-behalf-of-the-
buyout.html)

"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."

 __ __

------
DrScump
Raphael Ravenscroft, who played the famous saxophone parts on Gerry Rafferty's
"Baker Street.", was paid only 27 pounds... and that cheque allegedly bounced.

[https://www.telegraph.co.uk/culture/music/rockandpopfeatures...](https://www.telegraph.co.uk/culture/music/rockandpopfeatures/8241031/I-was-
paid-27-for-Baker-Street-sax-solo.html)

~~~
cromulent
Clare Torry was paid £30 for her vocals on Pink Floyds _The Great Gig in the
Sky_ but 30 years later she was given a settlement for vocal composition.

[https://en.wikipedia.org/wiki/The_Great_Gig_in_the_Sky](https://en.wikipedia.org/wiki/The_Great_Gig_in_the_Sky)

------
chrischen
> the two men hammered out the contours of a handshake deal: For $1,500
> (approximately $10,130 in 2018 dollars) dad would deliver three paintings.

> 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.

~~~
pjc50
There's definitely a contract, just a verbal one with no record. The lack of a
written copyright assignment allowing reproduction sounds like a problem to
me, but the law has undoubtedly changed over the years.

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_ ".

------
jacquesm
This is a case of 'contract regret'. If there was a legal case then for sure
it would have been litigated and he might have won but as it is all that you
could say is that it is really sorry that he got very much hung up on that one
painting when instead he could have used its success to significantly raise
his prices for other commissioned works with hopefully better contracts.

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.

------
rocannon
> 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

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.

~~~
jaclaz
I don't really know the specifics on this artist's success/income, but
investing has the pre-requisite of being able to save the money first.

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](https://data.bls.gov/timeseries/CES0500000008)

------
jimnotgym
It's funny that the record industry trots out the line that 'artists deserve
to be paid for their work', while trying to stop teenagers downloading...

------
pjc50
Does anyone know of a case where the album cover artist or photographer _was_
given an ongoing cut of royalties?

------
darepublic
I like the artist and the cover art but nothing illegal or particularly
unethical took place here. The attitude of those stating otherwise is
reflective of our time... break the law to impose some arbitrary and often
misinformed notion of justice on the world

------
8bitsrule
Lots of famous songwriters failed to work publishing rights into their (paper)
contracts too. Life is a beach for those who don't know their options.

------
shirajg
Why is this even a submission on hacker news?

Seems like the artist should have negotiated for a piece of the residuals but
now regrets that...

------
mdekkers
Alternative title: "Man at end of his career realises value of lawyers"

------
jasonkostempski
That animated section divider nearly made me drop my phone, thought it was a
bug.

------
mm4
never seen it before, never heard it before. I'm pretty sure that their case
is as solid as the cult status they claim this pice has.

~~~
RoiDuSilence
That's really just your own lack of culture. You should give it a listen, it's
pretty good.

~~~
mm4
yes since the only real culture is the Anglo sphere culture

