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I know this has been discussed in comments several times here, but I can't remember if there was an actual discussion journal about it. [Mods, if there is, please link it to me if you know where? I can't find it!]
In the event there's not, I had a question or two!

I've seen people in this community say that people who re-sell characters with additional art included are in the wrong. If I'm correct in remembering [and it's possible I'm not], this is due to the commissioner not having the right to transfer "ownership" of an image they don't exactly "own" in the first place [unless they've purchased rights] and to charge someone else for the privilege to essentially just repost it is unfair to the buyer. Is it also unfair to the artist?
I see where it could become a problem if the new character owner misused the artwork somehow, but if it's basically only reposting rights being transferred, that's not much of a change from what the agreement was previously...or am I missing something?
[I personally don't think I would mind if someone transferred reposting rights to someone with the sale of a character as long as they weren't charging extra for those rights. The extra charge is the problem, though, correct?]

If I'm getting something wrong, it might invalidate my followup question, but assuming all the above is right...
I recently [and essentially retroactively] added to my ToS that re-sale of my artwork included with a character sale is prohibited. How can I even enforce this?

Today I found that someone I've done art for in the past has sold their character to someone who I have no problem with and who hasn't reposted the work I did of said character. I have no idea if the character was sold for an extra cost to cover extra artwork, I'm just relating the situation that spawned my thoughts and subsequent question.

Hypothetically, if the new character owner did repost my art, what could I do? I would feel bad revoking their rights to repost it if they paid extra for that right, plus their reposting of it doesn't exactly hurt me or my business [in this case, it would actually probably help]. It's not the buyer's fault they got essentially scammed out of extra money.
As far as I know, I can't do anything to the person who sold the character, though, and they're the one I'd be upset with. I could punish the buyer, who wouldn't deserve it, but the person who was actually in the wrong gets extra money with no consequence no matter what I chose to do.

Does your answer change with the information that the original character owner never actually paid me a dime? [Every piece I've done with this character in it was a gift from their (ex?) significant other meaning that they'd be making a complete profit--there's no deficit from paying for the artwork originally, which usually seems to be the defense for people who are in favor of this practice.]

Thanks in advance for any input/opinions!

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Comments

( 26 comments — Leave a comment )
sleetfury
Jun. 11th, 2014 02:16 am (UTC)
Well personally, the new artwork has nothing to do with the character's original designer. You can ask them not to upload the original art but the rest of the artwork isn't down to you.
starcharmer
Jun. 11th, 2014 03:45 am (UTC)
I'm way confused by your comment. Could you word it a different way possibly or explain what you mean?

For example, what "new artwork" are you referring to? My entire post deals with the issue of previously completed artwork, there's no new artwork involved. Or did you mean new owner and typo it? Because that would make more sense. :P
sleetfury
Jun. 11th, 2014 04:50 am (UTC)
Oh see I thought you were saying something like that they'd bought more artwork of the character? Referring to the additional artwork.
starcharmer
Jun. 11th, 2014 04:59 am (UTC)
No, I really don't care what she does with the character. I have no vested interest in it.

I mean when you see Character Owner [A] say "Selling this character for $150 - comes with 15 extra pictures!" because they had gotten 15 commissions of the character from Artist(s) [B] in the time that they owned it.

9/10 times, A doesn't ask ask B if it's okay if they essentially charge a third party [the new character owner] for "ownership" of B's artwork.

If that makes more sense, haha.
sleetfury
Jun. 11th, 2014 05:13 am (UTC)
Oh yeah I see what you mean! Well, point still kinda stands. If somebody does that you can always pull the artwork if you're uncomfortable with it. Adopts are hard to keep track of.
tealmoonxiv
Jun. 11th, 2014 05:25 am (UTC)
I'd like to be notified of the sale.
Then I'd let the new owner display the art.
zaulankris
Jun. 11th, 2014 05:52 am (UTC)
This. I mean, this is assuming the new person isn't a jerkface and/or removing your credit, it's free advertisement because now both of their watchers know about you. That's pretty awesome, if you ask me.

@ OP: that being said, you should absolutely go and tell both parties that this stuff isn't kosher, and just because you're letting it slide right now doesn't mean other artists will.

AFAIK, when you buy digital art you're paying for someone's time + skill and the right to look at the thing they did for you, and that's about it. The artist generally grants you permission to post it on your gallery, but if the artist says you're not allowed, well... you're not. You also don't own have the right to modify the artwork, put it on t-shirts, sell prints, etc. Buying someone's old digital artwork is so wat, you're getting nothing for your money. Since you cannot copyright a character design itself either, that kinda sucks too. What this basically comes down to is that if you adopt Jimmy Foxpants's old character, he's probably not going to get in your grill about it when you commission your own artwork of it. The artists may or may not be okay with you posting the work they did for the original owner in your gallery. If you decide that whatever you're paying is worth that, then okay. If you're not aware of this going into the transaction, then that really sucks.

edit: words r hard

Edited at 2014-06-11 05:54 am (UTC)
starcharmer
Jun. 11th, 2014 03:32 pm (UTC)
That's pretty much why I wish I had been informed at least. I'd want to be able to give the new character owner my ToS so they could understand what exactly they had rights to and inform the previous owner that they no longer had any of those rights.
dinobutt
Jun. 11th, 2014 01:00 pm (UTC)
I state in my TOS that rights to my artwork can't be transferred without my written permission and none of my work can be used as advertising or incentive for a sale of any kind.

If it were to come to my attention that someone went and did it anyway, if the sale were still in progress I'd revoke the rights from the seller and do what I could to have my work removed from wherever they're showing it.

If the sale was already done, I'd contact the buyer and try to work something out with them, since it's not their fault if they unknowingly were sold art that the seller had no right to offer. As long as they could agree not to turn around and resell it again and understood the issue I'd let them use it. I'd blacklist the seller for sure though, for the blatant violation of my terms.
starcharmer
Jun. 11th, 2014 03:35 pm (UTC)
This is exactly the kind of answer I was looking for. :) Pretty much answers all my questions! I think I'll change the wording of that section of my ToS to something similar as what you've written here. Thanks for your input!
dirtiran
Jun. 11th, 2014 02:32 pm (UTC)
I find this one a kind of weird one to keep track of. And what I mention below is from the perspective of a person who usually just cuts attachment from any character I sell (every artist is different of course!)

If a person pays for art of a character off me (or commissions me to design one/buys a adopt). Then sells their character I personally have no issue with the new owner displaying the art of said character in their own gallery.

In a way, its just passing the torch of who has the right to "display" the character, and does not remove any rights I have to the image.

If the original character owner charges more because there is existing art of it, I don't really mind this either. I see it all the time with things like fur-suits being sold with badges ect.

That's for the new owner to decide if its "worth" it or not, and I am not really offended if I am not notified. In the end, if the characters sold, it seems logical to me that people may want to display existing art of it.

I sort of see it as what happens in many circumstances of reselling art. Things can devalue or become more valuable depending on people think its worth. A costume head a person buys, may sell for more later if they decide to sell it on. Same with sculptures, original artworks purchased, furniture...ectect.

If the new owner was abusing the artwork itself in some way (like profiting off it), you are within your rights to have it removed from where its posted if need be, and that's usually the only time i'd react :)
starcharmer
Jun. 11th, 2014 03:43 pm (UTC)
A problem in this case is that IF my art were being sold/transferred [which I thus far have no evidence of], it would be selling it for profit as the character owner never commissioned me. The work I did of the character was all gifts. :/ Hopefully that isn't what happened, though.

I definitely see what you're saying and pretty much agree, I just would kind of rather be informed so I can toss a copy of my ToS to the new owner and make sure they understand what they can and can't do with my artwork.
lurkerwisp
Jun. 11th, 2014 02:59 pm (UTC)
The original commissioner doesn't have any right to sell your artwork unless it's hard copy originals. They also don't have any right to give away your artwork unless, again, it's a hard copy original.

It really doesn't matter that they're 'selling' the character. They don't have the right to sell or give away your images.

If I learned that someone was selling digital copies of my work (which basically, that's what the whole 'posting rights' thing is) they'd be sent a request to stop. If they didn't stop, or argued, I'd send my request to the hosting site to remove my work from their gallery, and anywhere the person who received it had posted. I don't sell the image rights with my work, and letting people post it in an online gallery is just a nice thing to do for the original commissioner. Favors aren't transferable property, but they are able to be revoked.

If they were selling or giving away the original piece in hard copy without the receiving person posting the image online, I'd have no problem with that.
starcharmer
Jun. 11th, 2014 03:46 pm (UTC)
That's pretty much how I always understood things. Physical goods are different from digital files, and that's what it says in my ToS.

I definitely agree with you, but at the same time, I wouldn't really have much problem with it if they weren't profiting off of it and if I was informed/asked previous to just assuming they have the right to do this. It kinda feels like being stepped on.
lurkerwisp
Jun. 11th, 2014 03:58 pm (UTC)
It feels like it because they are. :/

You're willing to extend the favor of letting someone post your art online without specifically purchasing the rights to it if they ask. That's great! That's really nice of you. But it's not required, and they have no right to assume that you'll go for it and just not tell you anything. They're trampling your copyright, and it makes sense to be upset about that.
intj_reflection
Jun. 11th, 2014 03:27 pm (UTC)
Not a Copyright Lawyer nor do I Play One on TV
(All information below was gleaned during my time working for a publishing company that underwent two copyright lawsuits. It was gained second hand in discussion with those who were actually dealing with the trial.)

Copyright law has not caught up with the online art market.

Unless otherwise stated, digital commission artists are not working on a Work-for-Hire basis. This means that a commissioner is basically paying the artist for the time to create a work based on their ideas, not buying the work itself.

In the online market this transaction results in the commissioner receiving a copy of the work they funded for their personal use. They are then presented with limited personal usage rights in terms of the work in question. Typically these are expressed as limited posting rights (artist must be given credit as the creator and primary copyright holder of the piece) and occasionally limited printing rights (this right may not exist if the artist personally makes money from the sale of prints of their work).

Most new artists entering into commission work and nearly all the new commissioners I've run across have little to no knowledge of this process. They tend to assume that a commissioner owns the right to the work in a more comprehensive way, especially if it features their "character". Others know but don't care because they feel they either lose nothing from relaxing their hold on their rights or make a net gain in further exposure/free marketing.

Typical furry characters are not copyrightable, very rarely trademarkable and as such are not technically saleable. There is no protection for them in the court of law or in typical free-trade. There has become a market for adoptable characters (where an artist designs a character in a Work-for-Hire type of scenario) and for some original characters with existing fanbases or interesting designs despite this.

Despite this many people believe they "own" their character, usually due to a misunderstanding of Intellectual Property laws. As such they assume they have a right to sell not only the character but work associated with it, even if just as an "increased fee" on the character sale. Since they don't own anything about the images, they're doing the artistic version of selling property that fell off a truck.

Making money off another person's work is illegal, but at this point I doubt you would ever see this go to trial. The best you can do is request that your work not be included in a sale-packet if you catch it ahead of time. If a sale has taken place without your knowledge you can revoke posting rights to the seller and the purchaser, but then it's up to you if you want to get flack from people who don't understand how things work.

~*~*~*~*~*~*~

TL;DR - Your understanding of the situation is correct. Not every artist knows/cares enough about their rights to challenge it. You'll probably run into people who'll bitch about your walking over commissioners. Request removal and DMCA if they don't comply and you don't mind looking like the bad guy for protecting your work.
starcharmer
Jun. 11th, 2014 03:52 pm (UTC)
Re: Not a Copyright Lawyer nor do I Play One on TV
Dang. That pretty much answers everything, including my question about what I can do. The answer is nothing! haha
Just as I suspected.

I think I'm going to go with adding to my ToS that my work is not to be traded or re-sold but that reposting rights can be transferred as long they're not charging extra for them AND I am informed about the transfer. I'm not going to let the original character owner continue to post something they've let go of and I want to be able to make sure the new character owner understands what they can and can't use my art for.

Thank you for giving such a detailed answer! :)
sleetfury
Jun. 11th, 2014 04:01 pm (UTC)
Re: Not a Copyright Lawyer nor do I Play One on TV
I hope you don't mind but I am going to screenshot this and use it the next time someone confronts me about copyright on generic furry design #1000000 :V
starcharmer
Jun. 11th, 2014 04:20 pm (UTC)
Re: Not a Copyright Lawyer nor do I Play One on TV
Haha I'm totally bookmarking their comment too. It explains things so well. x_x
intj_reflection
Jun. 11th, 2014 05:21 pm (UTC)
Re: Not a Copyright Lawyer nor do I Play One on TV
Go right ahead!

I just feel that I need to reconfirm that I am not an expert on copyright law and my information was obtained second hand. Things could have changed since I left the company (well, since it declared bankruptcy and closed) and I would have no way of knowing.
houndofloki
Jun. 12th, 2014 01:31 am (UTC)
Adoptables seem to create a really odd grey area. Because any given furry character design is (in all likelihood) not trademarkable anyway, the buyer has essentially paid for nothing. Because they just paid for your time in creating the art and don't have any rights to your work except to view it (which any other random person also has), they've basically turned around and sold nothing after buying nothing. The only thing on the auction block, essentially, is the "right" to say a particular character design is yours. I really don't think this transaction "works" in any context except the fandom one.

Because it's such a fandom-specific and unusual thing, I tend to think the best way of protecting yourself if you're going to dip into adoptables is just to have a really clear TOS. Now granted, it would be difficult to enforce it any meaningful way anyway and adoptables seem by their very nature somewhat "honor system", but a TOS does at least give you the ability to warn other artists or buyers of someone who's not playing by the rules.
rai_say
Jun. 12th, 2014 10:03 am (UTC)
As someone who often buys characters "second hand" so-to-speak, I always try to find the original artist for the piece, and let them know that the old owner has sold it (and often times, for how much, if I can remember).

That way, the artist knows that I have it, and they also know that the original "owner"/commissioner didn't get more for it than they paid for it?

The vast majority of the time, the artists are totally cool with it!



As far as copyright goes- technically, no. I understand that I don't REALLY own the character, as the artist still retains rights to the work? Commissioned art (in terms of most commissions) is really like buying prints- the only difference being is that the commissioner is basically getting a limited edition print of only one copy (if that makes any sense).

starcharmer
Jun. 12th, 2014 10:21 pm (UTC)
That's really good of you! I wish there were more out there like you. :)
rai_say
Jun. 12th, 2014 10:53 pm (UTC)
Oh, thank you TT_TT

I just thought it was kinda a common courtesy thing? Then again, I guess there are a lot that don't do that so :(
poizenkat
Jun. 14th, 2014 08:46 am (UTC)
I personally believe the amount of art DOES raise the value of the character, but it is still the character being sold and not the art. Meaning that the new character owner has to ask every artist for permission to post the art.
revka_hunt
Jun. 20th, 2014 10:00 pm (UTC)
I see no issue in letting designs and such trade hands from commissioner to commissioner. The only rule I have is that they don't sell it for more then it was purchased for because then they would gain a profit that I the artist did not.

As for other tag along works I feel the same about that, if they bought to pictures of the character for say $20 and the original character they purchased was only $5 then they decided to sell all three as a bundle for $15 I don't see a problem.

As long as the artists don't suffer a hit for their profit margin it makes no difference if party A or party B purchased the piece, it was bought regardless of the ownership status. As for reposting art on the other hand, proper credit and permission should be given before displaying the piece on your page. Most artists just want to know that someone isn't stealing work made for other people. Also keeping in mind some artist do not give permission to resale of designs in which you would have to supplement giving it away or trade.

tl;dr I see no problem with it as long if its done within terms
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