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Just need advice!

This isn't a post to report anyone...myself or any of my customers...I just finished reading about _graywolf_'s experience, and I got to thinking...

If I haven't had it written anywhere in contract or discussed with commissioners thus far, would I be able to legally have them cease and desist from using their commission from me for prints and selling them? [If that didn't make sense, I meant essentially making a profit from selling work that they paid me for...]

I don't expect this to happen, my commissioners have always been wonderful people and patient joys to work with [:D], but if it did happen someday, would I just be shit out of luck, or would there be something I could do?

All this has made me seriously consider sitting down and writing a terms of service journal in my commission-dedicated journal so that I can avoid anything of the sort ever happening! I've never been art thieved to my knowledge, so I haven't really been watermarking my work or putting visible copyrights on them, and this community is making me so paranoid, I swear...
Does anyone have a terms of service page that they wouldn't mind me basing mine off of? It almost definately wouldn't have everything that the one I referenced from had, and maybe I wouldn't use anything...I'm just sort of new to all this and wondering what sort of things should be covered in a ToS.

Also, is it unethical to be commissioned by someone for something of their character, give them the original piece and then sell prints of it? I don't have a printer that could handle anything like that, but I think I may have seen people doing it, and I always wondered how that worked with people's original characters being in the piece [or Disney, Sonic, etc. copyrighted characters, for that matter].

I hope I covered everything I've been wanting to ask...*sigh* It would be just like me to forget something. P:
I think I've seen posts like this in this community before, but I know some of the rules have changed, so like...is this still allowed? I guess we'll see if it's let in...
Thanks in advance for any help/advice/comments, guys! <3
Edit: Yep, it's allowed...mainly edited because my HTML was off...honestly, why can't I get it right? -_-
Artist's beware has moved!
Do NOT repost your old bewares. They are being archived.
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Comments

( 146 comments — Leave a comment )
drake_anaya
Jan. 18th, 2007 07:01 am (UTC)
If I haven't had it written anywhere in contract or discussed with commissioners thus far, would I be able to legally have them cease and desist from using their commission from me for prints and selling them?

From my understanding, yes. You are selling a piece of artwork, but without a contract you can't prove that you're selling the rights to it. Just because I buy a comic book doesn't mean I have the right to reprint it. :)

Also, is it unethical to be commissioned by someone for something of their character, give them the original piece and then sell prints of it?

You legally have the right to make prints, unless the character is registered with a trade and copyright office (in which case you're infringing copyrights). However, it is considered common courtesy to ask in advance if you're dealing with a personal/fan character.
As far as selling prints of fanart goes, I personally think the practice is pretty dubious, but certain venues (like anime conventions) have different policies on what they allow in their marketplace.
starcharmer
Jan. 18th, 2007 07:10 am (UTC)
Oh, I would definately ask if it was alright with the commissioner beforehand...I'm really anal about how I appear to people, and if I even THINK I offended someone that I respect without meaning to, I freak out and overreact in trying to fix it. o.O
I think I have one piece I'd like to try printing with, it's my most popular one, but I'd have to get a print quality printer. :/

"Just because I buy a comic book doesn't mean I have the right to reprint it. :)"
In my eyes, it's kind of different with a commission, because the people paid to have a specific done and they might see it as belonging to them after they have it in hand.
I do understand what you were saying, though. I really appreciate your input. (:
Love your icon, too! :3
(no subject) - drake_anaya - Jan. 18th, 2007 07:12 am (UTC) - Expand
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bladespark
Jan. 18th, 2007 07:06 am (UTC)
Well, I can't help on TOS, I do fursuits so my TOS stuff covers totally different issues.

On the issue of making prints of a piece involving somebody else's character, they do own the character still, but you own your depiction of it, if that makes sense.

Say if you did my FlameSong here. I would still own FlameSong, drawing her would not give you any rights to her, and you couldn't claim her in any way, but the art itself is still yours, and you own it. By hiring you do make a picture of her, I gave you permission to reproduce her likeness, and so after that you do own all rights to that specific image, even though you don't own the character as a whole. So yes, it's ethical to make prints of such a picture.

Some artists don't do it, out of a desire to avoid annoying customers who are protective of their characters, but it isn't unethical, that's just something they choose to do.

(I must note here that when you draw something Disney, Sony, etc., it's not the same, since Disney didn't pay you, nor give you permission to do it. So if you make and sell prints of that, you're on very shaky legal ground, and though you still own your art, and have all rights to it, if it contains a character you haven't been given permission to reproduce, you can get into all sorts of legal trouble for profiting off of their characters.)
starcharmer
Jan. 18th, 2007 07:12 am (UTC)
You explained that so well. <3 Thanks so much, I completely understand. :DDD

Actually, now that you put it so logically, I feel kind of dumb for asking. ^^ *blush*
I guess I do still have the ToS question, though...XD
(no subject) - kerstin_orion - Mar. 19th, 2007 01:02 am (UTC) - Expand
(no subject) - kitsuken - Mar. 18th, 2007 09:33 pm (UTC) - Expand
Actually.... - techdragon - Mar. 22nd, 2007 12:24 am (UTC) - Expand
Re: Actually.... - kitsuken - Mar. 22nd, 2007 11:00 am (UTC) - Expand
Re: Actually.... - techdragon - Mar. 22nd, 2007 12:34 pm (UTC) - Expand
Re: Actually.... - kitsuken - Mar. 22nd, 2007 12:39 pm (UTC) - Expand
lilenth
Jan. 18th, 2007 07:32 am (UTC)

Legally unless you sell the reproduction rights to them, they can't reproduce it even if they paid you to draw it. They're only paying you to create it, places or people that need reproduction rights will have it put in the contract and pay you extra for the rights. Most commissions in the furry fandom and the like? Aren't for enough money for the reproduction rights to be included.

You are well within your rights to sell prints of any original completed piece unless you've sold/given away those rights. Character's no matter how original don't come under copyright unless it's as part of a larger published piece, most characters from businesses like disney are trademarked which is character protection, ie mickey mouse? Is copyrighted in terms of the cartoons/imagery he's in and trademarked in the terms of being a symbol/character of disney's. So you can create a mouse character so long as it doesn't bear an overwhelming resemblance to the whole story/design that is the totality of mickey mouse, since mickey mouse isn't just a distinct design, he's a name, personality and in multiple published stories with other distinct characters.

Most people insist that being asked is only polite however unless you sell them the reproduction rights to an image or unless you have agreed in writing not to do prints then they have no legal right to stop you from making prints of a commission if you wish to do so.

It's illegal to print and sell imagery that contains derivative work, trademarked character pieces, and yes even speed the super-flame-hog gary-stu who marries amy rose would be illegal to sell since it's derivative of Sega's creation. I wouldn't dabble in it personally since although companies rarely jump on small timers about it, it still does sometimes happen and people can get in a lot of trouble over it.
starcharmer
Jan. 18th, 2007 07:39 am (UTC)
That was a joy to read. (: Thank you for all the info!
(no subject) - nambroth - Jan. 18th, 2007 02:15 pm (UTC) - Expand
atateatarin
Jan. 18th, 2007 09:40 am (UTC)
I agree with all above commenters ^^


Myself, generally I check with off-dA commissioners before I even post the work to my gallery, so naturally I wouldn't do prints of it. I'm not too big on prints anyway :D I guess my own views of characters and protection carries over into my morals, but generally the only boundary there is whether or not you yourself think it's acceptable :)

But I also agree that it wouldn't be acceptable to make and sell prints of someone else's work, even if the character is theirs, without prior permission, just like if you did someone a commission and they uploaded it to their devart gallery. Of course, people do things like IDs for each other all the time, that's just a little different as obviously the original artist has given the person permission to use the artwork on their account as an ID.


I stand on a bit of a line when it comes to work of my own characters. I wouldn't be particularly happy if someone was selling prints of say.... my avatar Atarin, only because I view her as an online representation of myself (even though there isn't a great lot I can do about it without trademarking her somehow). Howeeeeever, if say someone drew a character of mine such as.... well, Andel, either as a paid work with no purchased exclusivity rights on my behalf or as a gift/fan art, I wouldn't really have a problem with them selling prints - especially as I don't perceive any measure of a threat there - Andel is the lead in a book I've already had published.


On ToS, the simpler and clearer you can make it, the better. If there's a lot of details or ramble, or they're hard to see, I can guarantee you, a lot of people just wouldn't bother reading it, and then would claim ignorance when you have to cite them.
atateatarin
Jan. 18th, 2007 09:41 am (UTC)
(LOL comment character limit! XD)


Overall, some things you'll want to clarify are things like how many revisions on each stage of a commission (concept, sketch, cleaned sketch, colour pallette, finished image) you're willing to do, or what stages you'll show, if any - and if you don't provide any revisions, make that very very clear.
Be sure to include a policy on timeframes and refunds, and a disclaimer about how Reel-Lyfez sometimes intervenes, so sometimes stuff will be late (to cover for those impatient few we all know are out there that weant their updates yesterday and complain when you don't answer their messages within 12 hours XD ) and whether or not you are willing to sign WFHAs or otherwise sell the reproduction rights to work you do. naturally that would warrant a breif statement on where you stand on rights and distribution - what basic rights you reserve, and what exclusive rights the commissioner has.
Make a note on what themes you will and will not do - if you will or won't do yiff or yaoi, violence, and all those other questionable topics people tend to ask for from time to time.
Also be sure to clarify that you're not responsible if the commissioner gets their piece and has a problem with the style. Just to make sure they're familiar with the kind of art you do, and don't expect something else instead. Alongside that, if you have trouble with any kind of critter or somesuch (like if you can't draw humans, or have trouble with wings) and that requests for that subjectmatter may either be turned down or taken upon on a 'at your own risk' basis.

Also, it's getting a touch into the niggly details here but it might be a good idea to include a point stating that you won't be held responsible for discrepancies caused by lack of information. In my experience as both the commissionee and commissioner, I've found the best results all-round come from clear information. We're not mind readers by any means, and we certainly can't see what's inside the client's head unless they explain it in painful detail. I usually make sure to clarify hazy points first before starting anything, just because if how I am, but generally, it can't be helped if there are differences in the form of improvisations where information was slightly lacking for pose or composition.
The reason I say this is I saw something only a few days ago from one of my friends where a commissioner hadn't familiarised themselves properly with her commission terms, nor had he provided significant information, and then complained when it didn't turn out 'just so', and it wasn't done in the style he expected (full-cg) even though said style would have cost almost triple what he asked for (colouring job). Obviously a case of misunderstanding, but noteworthy all the same.



Ack! I rambled myself *dies* Well, I hope I'm not repeating stuff you already are familiar with :D This is of course just my set of personal viewpoints and interpretations, by no means am I implying it is 'just so' :D

*laughs* I should probably take my own advice (and follow your lead) and get all my clearer commission info up, suppose I should include it in my website revamp ^^
starcharmer
Jan. 18th, 2007 09:49 am (UTC)
"On ToS, the simpler and clearer you can make it, the better. If there's a lot of details or ramble, or they're hard to see, I can guarantee you, a lot of people just wouldn't bother reading it, and then would claim ignorance when you have to cite them."

Good call!

All of your advice was read and is appreciated. I think I'll use what you've said as a guideline for what I put in my ToS, as you've seemed to have included everything I've ever seen problems with. Some of the things I have -touched- upon, lightly, in my journal [like what I will and won't do, the at your own risk, etc. I actually usually charge a little extra for things I'm not comfortable with (i.e. cars) if the commissioner expects me to do research on it, and put forth the extra pushing effort to make it look better than if I just drew it from a reference how I would normally draw something...rambling again yay]...oh yah. hahaha Forgot what I was typing.
So anyway, I've touched lightly on some things, and other things I've never even thought of mentioning.
I think I'll write that up tomorrow. :D
(no subject) - crssafox - Jan. 18th, 2007 03:40 pm (UTC) - Expand
thaily
Jan. 18th, 2007 10:16 am (UTC)
Commissioners pay you for the labour of drawing something and usually the resulting original work, unless specifically stated they do not buy the commercial rights also and they remain yours. You retain the right to reproduce/print the art and sell it, the commissioner does not have that right.

You should definately write up a TOS though, to prevent confusion and prevent customers from coming to the wrong conclusions. I have mine here if you want to use it for reference.

You're legally entitled to make prints of any of your work unless people have bought the commercial rights to it, that includes commissions. Again you might want to mention this in your TOS to prevent confusion amongst your customers. Some of them might argue you'd need their permission to resell art with their characters in it, but unless they're copyrighted/trademarked you don't need permission. Ofcourse it'd be nice of you to ask if they'd mind but you don't have to.
Characters like Sonic or Disney characters are trademarked ofcourse and personally I wouldn't touch them with a 20 foot pole. Doing non-profit fanart for yourself is one thing, making money off it is another.
starcharmer
Jan. 18th, 2007 10:28 am (UTC)
I can't recall the last time I did fanart of a copyrighted character. ; ; I'm sure I have before, at least once, but I guess it was a long time ago...

Thanks for the input, your ToS will be very helpful when writing my own. :D
laneypanda
Jan. 18th, 2007 01:12 pm (UTC)
As a customer of commissions, I would certainly hate an artist to sell prints of my commission to willing buyers unless I was asked first, even then it would only be allowed if my character had it's name next to it in very small print or.. something like that.

I know for most artists they legally know that they own the character because they worked on it, but it's just a matter of common (which may not even be that common) curtosy and principle to me.

It just makes me nervous to think that anyone has access to my character as a print, some which might be able to scan, modify, and make it their own... Bleh.
starcharmer
Jan. 18th, 2007 01:19 pm (UTC)
I'm sure no artist would ever reproduce a commission of a personal character of yours without asking, especially if you said you'd rather not have it printed!

"As a customer of commissions, I would certainly hate an artist to sell prints of my commission to willing buyers unless I was asked first, even then it would only be allowed if my character had it's name next to it in very small print or.. something like that."

I understand that completely. In fact, I was thinking that if I ever liked a piece [and had other people like a piece] enough that I'd ever think of selling prints, I would put the original commissioner's character name with a copyright and the commisher's name. Maybe a link to their website or something...just to show that it wasn't my character and it's not someone else's character.

Usually if I think of selling prints, it's just a made up character from my brains or...just a generic nothingness character that I don't even name. X)
Not that I've ever seriously considered prints...
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leswamp
Jan. 18th, 2007 02:44 pm (UTC)
Most artists reserve the right to sell prints of anything they produce, regardless of content. I reckon that's standard.

I don't see the problem with a customer selling prints of your work as long as the content belongs to them via copyright. Disney pays artists to draw Mickey and then sells all manner of product with said artwork on it. That's how art works in the real life business world. One may as well get used to it.

As long as the customer isn't passing your work off as their own I don't see a problem.

(Admittedly, to me this is all hypothetical. I don't sell prints of art done for me and I don't think anyone is selling prints of work I've done for them. I'm not in the print business.)

To sum up, if you draw a picture of someone else's copywritten character, you both have the legal right to reproduce and sell said art in any manner either of you wishes unless one or both of you sign a legally binding contract to the contrary.

leswamp
Jan. 18th, 2007 02:52 pm (UTC)
Or at least that's what my attorney told me when I asked him about it. :)

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rakshepsaar
Jan. 18th, 2007 04:02 pm (UTC)
I don't know anything about proper ToS's, but I can tell you that I would be royally pissed if you sold prints of me. ;P

I think a good thing to do would be to address the issue with your commissioner beforehand. In this fandom, most of the work you'd be doing would be of peoples' personal characters, and very few would be alright with you doing that. You'll hear both that you're legally entitled and that you are in no way entitled to sell work you were commissioned to do, but it could really be argued either way - that if you did the work, it's technically yours; and that the person paid for the work, so it's technically theirs.

I think the best course is a happy, considerate medium: that unless agreements are made otherwise, it's not cool for either person to resell.
rusti_knight
Jan. 18th, 2007 05:33 pm (UTC)
I hope you pay well for commissions then. :P In my TOS, I reserve all rights to make prints unless specifically asked not to, and in that case, it may cost you extra. If, as stated before by others, your character is trademarked and you can provide proof of that, I won't, of course, but otherwise? You'd just have to be pissed off unless you were willing to pay.

I rarely do make prints of commissions, since they are often fairly personal, and wouldn't mean much to someone else (like, say, the mini sprint car commissions I've done in the past. They don't mean much except to the family of the driver/owner, since there aren't many folks in the way of fans in small time racing), but my rights are still there. Is it nice? Eh, so-so, it's *business*, and business ain't always rainbows and sunshine, even if it is 'professional'. Ya do whatcha gotta do to eat, shower in hot water and feed your dog.

But if you ask me not to, and it's definately a printable image that *would* sell well as a print? Be prepared to fork over some extra, dude, sorry.

You've just convinced me that that in addition to ToS, I think I need to draw up a little contract so someone can't come back at me later going: "Nuh uh!!!! You changed it!"
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crssafox
Jan. 18th, 2007 04:20 pm (UTC)
Also, is it unethical to be commissioned by someone for something of their character, give them the original piece and then sell prints of it?

Is it legal? Yes. Unless (see my comment in response to someone else, above) you're dealing with a trademarked character or someone bought the rights to the art from you.

Is it ethical? Maybe. You, as the artist, are legally able to print as many copies as you like. You still own the rights to the artwork, assuming no one bought the rights and the character's likeness is not trademarked. But if someone commissions a fairly personal piece (say, as a wedding gift or something) it may not be nice to sell prints of that particular piece of art. Then it wouldn't be as personal. You would be within your legal rights to DO so, but then the commissioner whose idea you are reselling also has every right to tell others that you, as an artist, are willing to re-sell more personal pieces. Likewise, if the commissioner asks you not to make prints, but a year or two down the road you change your mind and decide you want to make prints of the final piece, again you have every right to do so, provided that nothing was signed in a contract stating you wouldn't ever reproduce the art (again this is something that typically costs more money, to offset potential income generated by selling prints) but the commissioner again would tell others not to commission you, that you don't honor certain agreements.

Personally, I ask people if I can make prints of the art they're commissioning from me. I've got one commission I'm working on now, it's just a general concept and a basic pin-up, that would sell well as a print. So I asked the commissioner if he'd mind if I sold copies of it. He's fine with that. To further my example... down the road, if he decided he didn't want me selling prints of it any more, I wouldn't be legally bound to stop selling prints since he is not buying the rights to the artwork, but it would be nice of me to.

I hope I'm making sense, and not rambling too much. ;P
starcharmer
Jan. 18th, 2007 04:24 pm (UTC)
You're making perfect sense. (: I've been reading all the comments to this entry...didn't think there would be so many and they're coming in so quick! :O

That pretty much sums up what everyone's said. I would definately ask someone if it was okay before just doing it, and I wouldn't even ASK if it was a gift to someone else or something personal like that. The most recent one I started is a gift of sorts to a boyfriend...I'd never take something like that and devalue it by making more of it.

Mostly, I was wondering about things like what you mentioned, the pinup. Things like that that are pretty much generic that might sell well, and I still have pretty much no idea what would sell well. XD I need to do some homework or something...lol
(no subject) - crssafox - Jan. 18th, 2007 04:30 pm (UTC) - Expand
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neongryphon
Jan. 18th, 2007 10:13 pm (UTC)
Unless the copyright was bought from you (which requires a contract), or the character is trademarked, then any art you produce is yours to reproduce as you will 'all rigts reserved' (this can exclude art you produce while under a contract with a company, which is a different thing entirely).

Profitable or not, it’s not illegal to distribute art you created. However, morally, I would not make $10 prints of an image that a commissioner of mine paid $100 for me to create. Not only if the roles where reversed would I be disappointed by this, but I can’t really see much profit in reselling such personalised artwork.
Sometimes you can attract more buyers by not reproducing commission work for 3rd parties. But it is still your legal right to if you wish.

I also have a ToS. You can find it here: http://www.neongryphon.com/terms_of_service.htm
starcharmer
Jan. 19th, 2007 01:54 am (UTC)
Sweet, thanks for the ToS link, I'll check that out when I make my ToS here in a few...

I only wish I could make $100 off one piece. :O It's one of my New Year's resolutions for this year, actually...must...get...better...
But yah, I definately see what you're saying and I agree.
tyrrlin
Jan. 18th, 2007 10:42 pm (UTC)
To throw a pickle in, what about trade art or gift art?

An artist draws as part of a "secret-Santa" type exchange, and like the work enough to make and sell prints. Is that legal/ethical?
lilenth
Jan. 18th, 2007 11:10 pm (UTC)

Depends on if the character is trademarked. Technically it's legal if the character isn't trademarked, but it would be at least ethical to ask the person if they want to purchase the reproduction rights for the piece.
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stitchedlamb
Jan. 20th, 2007 12:55 am (UTC)
Xainy! :D

Personally, as an artist, yet also as a commissioner, I would be highly upset if an artist sold prints of my characters. They're incredibly personal to me, and as I have somewhat of a pipe dream to someday make a comic about them, I would prefer other people don't make money involving them, or even worse, people other then the creator or artist having pictures of the character before they can be properly trademarked. Maybe I'm a bit paranoid, but it seems like opening up the door for problems in the future.

HOWEVER, as many others here have mentioned, it is entirely up to the artist. I would say it's safest to follow the Golden Rule though, you know? Make it clear to the commissioner that you hold the right to reproduce any artwork you create for them, and that then allows them to exercise their right as to whether or not they still want to go through with the commission, or discuss if you're willing to refrain from making prints. At the very least, they should be acknowledged as the creator, in my opinion.

This whole thing does raise a very good point as to reminding commissioners that it's their responsibility to find an artist that is willing to comply, if they feels so strongly about it. And it's the artist's right to refuse a commission if they only want to take jobs from people that are willing to let them sell prints.





starcharmer
Jan. 20th, 2007 03:01 am (UTC)
Yah, totally. I wouldn't ever ever make prints of anything without a commissioner's permission, even if it was a completely horrible experience with them and I didn't feel like I got paid enough for what they put me through. XD [which hasn't happened yet, but I'm sure it will at some point in my life, as it seems to happen to everyone at least once lol]

There are certain of my characters that I wouldn't mind prints being made of, but others [like my fiance and my characters] that I would be royally pissed about seeing other people have. >:[
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