July 22nd, 2011

Commissions of Fan Art (and other inquires)

Hello! First time poster here. :)

I was thinking of starting commissions soon and I have a few questions concerning copyright. I've looked through the tags and although I saw hints of this subject, I don't believe it's been fully discussed.

My first question is concerning commissions of fan art. I know selling prints of fan art has been discussed many times here, but I'm strictly talking about someone commissioning an image featuring a copyrighted character and using it for strictly non-commercial reasons, and the artist who drew the commission doesn't sell prints of that picture. I've heard two views on this. 1) The artist is breaking the law because they drew the image of a copyrighted character for money. And, 2) even though what the artist drew had a copyrighted character on it, the image itself is still original and belongs to the artist. Needless to say, I'm confused. I've done some research on this, but all I really get is opinion pieces and articles concerning the selling of fanart, which is not what I'm looking for. Or is selling fanart technically the same as a commission of someone's character, since both times the artist receives money?

This leads into my second question: does the artist own the rights to the image or does the commissioner, especially when the commission involves the commissioner's characters? Some artist's TOS's state that they own the copyright to the image even though the commissioner owns the physical image. Does this still hold true (if it ever did) if the commission depicts characters that don't belong to either the artist or the commissioner?

I'd love to hear opinions on this as well as good links concerning these subjects. I know a lot of what I'm asking is probably obvious, but I just want to be super sure about this subject before I write my TOS or conduct business practices.

Thank you.