At a recent convention, I found myself involved in a conversation about ethics, copyrights and commissioned work. Basically, Luis (an artist named changed to protect the innocence) does convention sketches for $20. He was approached by a con goer and asked to do 4 small sketches. Luis and the con goer agreed to a price and Luis began to work. While in the midst of the commission, the con goer mentioned that he planned to use the sketches for online banners for his web site which was withheld from the previous price bartering. Luis finished the commission, but the entire transaction left a bitter taste in his mouth. When speaking about this later, a would be self-publisher (let's call him Hap) didn't understand why Luis was upset. Hap has been going around having artists draw his character planning to use them as pin-ups in his book at a later date. Hap wanted to understand Luis's issue, so that Hap was not inadvertently angering artists.
Luis asked me for my opinion and this is the result.
The difference between commissioning an artist to draw something for publication versus drawing something to add to your original art collection is wholly a matter of copyright. When an artist (or anyone) draws something that drawing automatically becomes copyrighted by thing. No matter who owns the subject of the drawing, the copyright (and thus all print rights) belongs to the creator (the artist) unless otherwise negotiated. Ideally, these negotiations should take place before the image is created.
When you are approaching an artist at a con to do a sketch, you are commissioning them to produce a piece of art for your collection. There is no other negotiation and thus you walk away with an original piece of art and nothing else. You paid for a product (the original art) and thus the copyrights to the image still belong to the artist.
When you are approaching an artist to do a drawing for publication, you are paying them for the right to use the image for reproduction. What you are paying for is the copyrights of the image. Exactly what rights you receive should be negotiated up front, in writing and signed. This is a simple contract and should be kept in your records.
So how does this affect you as a self-publisher? Generally, you will find that artists do original art commissions for far less than they do work for publication (especially at conventions). This may seem like a great time to get a pin-up done, but you must realize that for publication you need copyrights, but at a convention you're only paying for the physical art. So instead of attempting to save a buck, be honest with the artist and give them the chance to charge you more for the physical art and the copyrights to the image. What you may find is that being honest, you may not spend any more money AND you will get exactly what you want without being sleezy.
A perfect example is the alternate cover to Warmageddon Illustrated #1. I was sitting next to Uko Smith at Wizard World Philly and he was doing 11x 17 pencil sketches for $25. During a slow period, I asked him if he'd be willing to do a sketch of Tiegre from Warmageddon and he agreed. What I paid him for was the original art and that's what I walked away with.
Later, when I was in the process of printing Warmageddon Illustrarted #1, my local comic book shop wanted an exclusive cover. I gave them a selection of art to choose from and they choose the Uko pencil sketch (which was later inked and colored). Now, I could have taken the money and never told Uko about it, but I think honesty is the best policy, so I contacted Uko. He had no problem with me using the piece as the cover, so we got the piece inked and colored and it was used. After all was said and done, I made sure the Uko, Ed Eargle (the inker), and Garry Henderson (the colorist) all received copies of this limited edition cover.
Should you find yourself in the position of having access to a piece of art that you don't own the copyrights to, then you should do the same. As a comic book self-publisher, you may not have an endless supply of money, but your greatest commodity is often your integrity. Be honest with your talent and build a relationship on trust and respect. That will still be intact after everything else is said and done.