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I came across an artist that I am following on FA which made a recent change to their TOS. They now added a clause on Harassment. If you Harass the artist they will cancel your commission with no refund at all. The rational is kinda vague and they operate on a 3 strikes policy. They say they will answer any questions on your commission, but the vague part is here: "We will not tolerate being constantly messaged, contacted, e-mailed, etc. about your commission."

So what do they consider constantly messaged, contacted, e-mailed, etc? Is it Once a year, once a month, once a week, once a day?

What keeps them from saying my message would be considered harassment to give them an excuse to take my money and run?

So is this even legal at all?

I sure hope that more this doesn't become a trend on scape goats to take our money and run for more artists.
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( 33 comments — Leave a comment )
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gatekat
Feb. 27th, 2015 02:47 am (UTC)
I have doubts it's legal, but I don't know.
At a minimum it's completely unethical.
Legal or not, it's the biggest red flag there is to not commission them.
Seriously, no one is that amazing for their price.
spytdragonfyre
Feb. 27th, 2015 02:56 am (UTC)
No it is not legal. Its illegal to be paid for a service, not render service, and keep payment.
teekchan
Feb. 27th, 2015 03:12 am (UTC)
Not legal, but even I have a harassment clause. But it's for REAL harassment and breaking of my TOS. I will give a refund for the work I have not completed.

An artist can not refuse a refund. You may only get partial, but they cannot outright refuse. If they've done half the work, they will keep half the payment.

The only time they shouldn't, is if the artist cancels. Save for harassment/breakage of terms. Full refund should be given if the artist cant/no longer feels like working on your image.
sawblade5
Feb. 27th, 2015 03:21 am (UTC)
Might I add that this is a Fursuit Artist I am referencing
(no subject) - gatekat - Feb. 27th, 2015 03:26 am (UTC) - Expand
(no subject) - teekchan - Feb. 27th, 2015 05:40 pm (UTC) - Expand
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gatekat
Feb. 27th, 2015 04:00 am (UTC)
That example is solid grounds to cancel a commission. It's something important to include, since the reader may well have a different idea than you want 'too often' means.

That doesn't clear you to take someone's money and refuse to send the product they paid for.
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(no subject) - alisea - Feb. 27th, 2015 04:12 am (UTC) - Expand
(no subject) - intj_reflection - Feb. 27th, 2015 04:15 am (UTC) - Expand
(no subject) - gatekat - Feb. 27th, 2015 04:22 am (UTC) - Expand
(no subject) - ducttapeninja - Feb. 27th, 2015 04:17 am (UTC) - Expand
(no subject) - gatekat - Feb. 27th, 2015 04:15 am (UTC) - Expand
MOD COMMENT - kayla_la - Feb. 27th, 2015 04:19 am (UTC) - Expand
mortymaxwell
Feb. 27th, 2015 04:19 am (UTC)
"No refunds for harassment" isn't legal. Professional thing to do would be to cancel and issue a partial refund. I'll be staying away from artists like this!

Edited at 2015-02-27 04:20 am (UTC)
growly
Feb. 27th, 2015 04:27 am (UTC)
Honestly if someone can't handle people checking in every now and again about commission progress, they're probably not ready to take paid work, or need to reduce the number of orders they take at any given time, or something.

Sure some customers get over enthusiastic and email every other day, but those tend to be rare and the artist can simply ask them to stop (or set specific dates for contact, like "expect a progress email from me on the 15th!")
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keyoki
Feb. 27th, 2015 04:37 am (UTC)
If an artist feels uncomfortable with a client they can cancel a commission at any time but that does not mean they can keep funds given to them.

That is theft.

If you give me a down-payment on a car I can't just decide not give you the car or the money because you called me five times in one day. I can tell you to cut it out or I can give you your money back.
mod comment - celestinaketzia - Feb. 27th, 2015 04:44 am (UTC) - Expand
Roy Cast
Feb. 27th, 2015 04:52 am (UTC)
i understand that we go away from the topic. i have found nothing that says it is illegal.
though it can be unethical
keyoki
Feb. 27th, 2015 04:59 am (UTC)
A lot of artists take a "non-refundable down-payment" but its only non-refundable if the client is the one canceling. Otherwise I could take an item, sell it to five different people, cancel on all of them, and keep their money.

If you think of this in any context other than art it becomes really clear how illegal it is. If you pay for one night of a hotel stay, show up, are told you don't have a room, you expect your money back. If the hotel was like "well its a deposit and you're making me uncomfortable so we're gonna keep it" most folks are gonna call the cops and a lawyer.
intj_reflection
Feb. 27th, 2015 05:06 am (UTC)
You phrased this very well. I was attempting to figure out the best way to frame something similar.
wuvvumsoc
Feb. 27th, 2015 05:51 am (UTC)
It is very illegal. A partial refund would be justifiable if the artist did some work already but a full cancellation w/o doing anything with no refund is bad.
kazeno_taka
Feb. 27th, 2015 06:26 am (UTC)
Canceling a commission and refusing a refund for any reason is illegal.
Canceling a commission and giving a refund for any reason is legal.

It's really this simple.
chronidu
Feb. 27th, 2015 06:28 am (UTC)
Yeah no it is 100% illegal to just say "NAH I don't like you the money is mine now go away" Like seriously, it would not hold up in court what so ever.

The artist would be obligated to return the funds if they cancelled the commission, or whatever work is done and the funds remainder for work not completed.
thaily
Feb. 27th, 2015 08:25 am (UTC)
It would behoove artists to mention in their TOS if they have a limit to the amount of contact you can initiate; i.e. once a week or so.

Vague "no refunds in case of harassment" disclaimers are just one giant red flag. To me it kind of feels like they're planning to take offense and taking the money. Especially on such a huge expense as a fursuit? Find another artist to work with.

Legality-wise I think it depends on where they are, that's worth looking into. I think a partial refund (minus material, work and shipping unfinished product&material out) would be acceptable.
kytheraen
Feb. 27th, 2015 08:26 am (UTC)
If anyone has a clause like that in their TOS I become wary. I would imagine if you took money and produced art in a timely fashion, there's no reason for a commissioner to contact you, and no reason for repeated contact with no sign of either communication or art to border what you might then call harassment.

If you promised art, reply "yeah, yeah, I'm on it" for the first few times, then ignore the next few messages asking for updates or even another "I'm on it"... you don't get to call harassment and keep someone's money.

I'm purely speculating here, but this seems to be a pattern I've noticed. Bad comms/slow delivery/angry artists have harassment clauses. Cos they don't like to answer emails asking "where's my art?"

And yeah, not legal. Some nice analogies already posted :)
skanrashke
Feb. 27th, 2015 11:06 am (UTC)
Probably more than once a week is too frequent. Speaking as someone who has a similar clause in their ToS, it's to prevent people from messaging me 30+ times a day(Which happens all too frequently when making fursuits- a project which should take at least 2 weeks to complete, so waking up every day to 30+ emails in my inbox is usually grounds for me to cancel the commission, refund them and not deal with them again).
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