Tuesday, January 11, 2022

To My Insurance Company.

I've been engaged in a battle to renew my business insurance lately. It's gone on for an unbelievably long time, because I can't find anyone to insure us properly.

When asked about the reasons why companies are - I'm going to say 'scared' - to insure my business, it seems to boil down to two things. 

1) The majority of my work over the last ten years or so is for North American clients. This seems to terrify them.

2) The insurers seem hell bent on protecting the mythically vulnerable from me - rather than the other way round, in a system that protects other people from being copied by me.

As most illustrators will know, we are most at risk from being ripped off by a third party - including large companies and startlingly high-profile corporations who ought to know better (we all know who I'm talking about, insert your own anecdote here) than we are at risk of plotting to rip them off, or each other.

These things are new. Or maybe they only seem new; when I reflect on it, there's been a growing sense of anxiety in the voices of those I speak to every time I ring up for annual insurance. It explains why I've moved companies so often. It contextualises why I'm constantly getting new quotes, from fewer and fewer companies. And it reveals an increasingly protect-the-big-guys modus operandi; if a missed deadline means Acme PLC can't make their print date, if Josephine Bloggs thinks I've copied one of their images, if XYZ Corporation has to clean paint up off their floor on one of the astonishingly rare occasions I have to work on-site, they're protected - what I mean is, I'll get help from my insurance company to defend myself, as long as whoever I need to defend myself against is in the UK, of course.

But as the explicit and very focussed questioning of each company I've spoken with has revealed, if I see someone using or copying my work commercially, their insurance policy affords me no protection.

In a nut shell, they don't have my back.

This might seem like moaning, but it is not. This is my business, built up over almost 30 years, and heavily, deeply invested in, year on year, not only materially, but emotionally and spiritually, and with an incalculable amount of hard work. When I hand over money to protect that investment, I expect more than my iPad and my paper stacks to be protected.

The reason this issue creeps beyond the scope of the mere mathematical technicality of insuring a few Apple devices and a load of inks against fire or theft is because it speaks to the much larger issue of copyright theft, and image and style misappropriation, an article about which I've been sketching out for months. Why are insurers more nervous about me stealing a company's work? Why is there a chilly gaping hole where there should be a policy that kicks in to help me take action the moment a serious IP theft is discovered and the infringer decides, for once, to fight back?

No, really, it's OK; I've paid four figures for a 'comprehensive' insurance policy, but you sit back lads; I'll tackle that one myself, especially the new NFT 'company' who've decided to mint my work for their own profits (true story).

Now, of course it's my job and my responsibility to take all the available steps to make sure my work is 'protected', so that I don't need to take action against anyone. It's quite literally part of my job; reading the contracts; knowing what I'm signing; reading the NDAs. Use lo-res images online and watermark and make online images non-grabable if you must, but none of these things will protect an image from being misappropriated, whether that's reproduced through mimicry or used and applied wholesale. People who aren't so intimate with the subject will talk sympathetically but a little glibly about 'registering' the copyright of an image, but copyright is covered by the Berne Convention; the right to be identified as the creator of your own work at the point of creation, rather than as a result of 'registering' it in some way, is a human right.

One or two companies said they would insure me to make a claim - but only if, like me, the infringing party was based in the UK. To date, I've had infringements in the US, Australia, New Zealand and Germany - and just one or two in the UK. And those are the ones I know about.

So why isn't that taken into consideration when a company draws up an insurance policy for a creative business? Perhaps I'm being too picky; I can certainly be that. But it just feels like an absolute basic protection in the contemporary creative market.

Here's the email I sent to the most recent insurance company I spoke with at length. I was fed up with saying the same things, and I decided to write it down so they could actually address the problems within their policies.

Whether they read it or not I have no idea; the courtesy of a response wasn't forthcoming.

But I'm posting it here and sharing it in on order that other companies, who might actually offer positively evolved, customer-centric policies which are different from those I've dived into thus far, can talk to me if they see fit. 

And having learned during the course of my research that a great many illustrators have no insurance AT ALL, I'm hoping I'll hear from other creatives who have had the same problem, or are looking for insurance at the moment - and more helpfully, from people who have solved the issue with an appropriate policy.

If you have thoughts or experiences that resonate, I welcome them. In the meantime, I have my pens pencils and hardware covered, but for now, I feel that the industry is set to either put this issue even further at arm's length, as it decides it's too 'Wild West' an issue to successfully navigate/monetise, or it will be forced to evolve in a fast-moving world of NFTs, social media and visibility, and in doing so recognise what the dark matter, the heavyweight inner core of any creative business that needs protecting actually is - its creations.

Some details in this email have been slightly changed for purposes of making the scenarios easily understood by the recipients who are outside the illustration industry, and to avoid identifying individuals. 

If at times it sounds like I'm explaining what an illustrator is or does, it's because that's exactly what I've had to do. Many times over.

~ † ~

Dear Insurance Company Person,

Thank you for forwarding the documents for the policy you propose for my business, after speaking with me on the phone for forty minutes yesterday. I'm unable to accept it, because it does not cover my needs.

What’s quite bewildering at the moment is that, after almost 30 years in this trade - and I mean, wholeheartedly, professionally immersed in nothing but this trade, on a worldwide scale - I’m finding an increasing reluctance to insure me and my business. For over 20 of those years I’ve worked with American and Canadian clients, and clients elsewhere in the world, and historically it’s never been ‘a problem’ nor subject to any additional questioning or clauses.

Over the last 4-5 years I’ve seen a creeping nervousness around that, and I do not see a reason why this would be. I don’t know of a single case of an illustrator being sued - for any reason - other than by another illustrator  in cases of blatant copying. This happens - there was a case a few years ago of two American illustrators fighting it out over alleged copying, but it was eventually resolved without resort to legal means, which remains the preferred way of resolving such things. 

What I don’t see reflected in your policy, but do see happening around me frequently, is cases of the illustrator having to fight a case of having their own work infringed by companies - both small and large.

To cite one example, a couple of years ago the large high street chain **redacted but named in the email** copied a colleague’s very distinctive work; that colleague had to fight that case of (very blatant) copying, and that colleague 'dealt with it satisfactorily' and got the work withdrawn. It was 'cut and dried’. 

There are myriad examples of large clothing companies helping themselves to artists’ work online, without permission.

I myself have had to deal with over 60 copyright infringements of my work by other people to date - and I have dealt with them, successfully, without ever having to resort to legal means, because I know the business inside out and I know copyright - as it applies to my trade - inside out.

The only recent example I know of which speaks to the kind of scenario that form the basis of this particular fear from insurance companies, is this. A very, very well-known British high street chain hired a design agency (standard practice) for a campaign that involved an illustrator creating a ‘friendly monster’ for a Christmas campaign. They would have briefed the illustrator closely for such a high profile campaign, and the resulting monster, once it hit the internet, was immediately recognised as a close copy of a long-existing famous character illustrated by an equally famous illustrator.

The illustrator whose work had been copied, although within his rights to pursue the case, was maturely philosophical, resolving the issue with humour and grace:
 "Talk of legal action has flooded my Facebook feeds, but I won’t be pursuing that. Instead, I hope that advertising agencies and the big companies they work for, take care to credit creative people whose work they might reference. We have the finest children’s book writers and illustrators in the world – their work should be cherished and credited properly." 
The key issue though is even if legal action had been taken, it would have been the design agency hired by the company who was challenged, NOT the illustrator, as the design agency was responsible for the creative direction taken.
(In this case the illustrator, who was relatively inexperienced and no doubt very excited to have received the commission, was unlikely to have questioned their commissioner’s art direction.)

But if that illustrator had chosen to pursue a legal route (and presuming he has insured his business) he should surely have been able to do that with the backing and confidence of his insurers, to whom he had paid money to protect that business, the IP in which forms the substance of the business in a far more meaningful way than his easily-replaced pens and pencils.

Such cases are not common. But my point is that what I am way, way more at risk of having MY copyright infringed, than I am at risk of infringing someone else’s - my job is to create original images, and I have created thousands of them.

The other scenario an insurer might be fearful of, and one that has been posited to me many times now, is an illustrator delivering work late, and thus triggering a sequence of damaging events such as missed print deadlines. But I have never heard of this happening; when deadlines are running close, they are modified, or the work is adapted to suit the timescale, or, in some cases, a client can choose to go with an other artist or buy stock imagery to meet their deadline - there is always a way forward, and I know because I have been involved in some extremely high profile jobs with their attendant deadlines, budgets and pressures, and successfully carried out every one of them.

I’m not suggesting that legal challenges never come up, but the emphasis on a client suing an illustrator suggests a fundamental lack of understanding of the job of an illustrator and the industry at large. And this fear of legal challenges seems to be infiltrating the insurance industry, even those pitching themselves as specialists to the creative industries.

I can’t go with your policy as it’s not right for me, but I welcome the opportunity to highlight why that is, and why the thinking underpinning the policy feels flawed, and outdated.

All the best,
~ † ~

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