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Selling Prints of Commissions

I'm not really sure what the etiquette is on this. Basically, someone commissioned work from me, and some time down the road, I decide that I want to sell prints of that particular drawing.

Is this something that's generally accepted, or no? Does anyone else here do this?

Ta.

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( 21 comments — Leave a comment )
kayla_la
Jun. 16th, 2010 01:14 am (UTC)
It is perfectly within your legal rights to do so as long as they didn't buy the rights when they commissioned you.

However, I would personally ask the commissioner if they minded and respect it if they didn't want me to. I don't see any reason to make my customers unhappy to sell a few prints, and it's not like it's difficult to email somebody. Many probably won't mind and will be pleased you actually asked for their permission first, which might even earn you more business and a good reputation as a considerate artist.

But that's just how I would handle it.
zi_mugudarina
Jun. 16th, 2010 03:31 am (UTC)
It is not within your rights to do so unless your terms of service specifically state that you can before the transaction. Even if you don't sell the rights to an image, you can't sell an image based on someone's idea without permission.
alaitallon
Jun. 16th, 2010 04:25 am (UTC)
Incorrect. The artist retains full rights to the work, regardless of whose characters are in it, because one cannot copyright an idea or character. Trademarking is another beast entirely and is the reason why people like Disney can chew on someone for selling prints of their characters, but random artists with no trademarks cannot. You are completely legally allowed to sell prints of your own art work provided you haven't specifically given up your rights to do so.
lilenth
Jun. 16th, 2010 07:32 pm (UTC)

As the other person said, your post is wrong. Ideas can't be copyrighted, specific expressions of those ideas can be trademarked, ie vaporeon is a trademark so selling a print of her would be a violation of nintendos trademark.

I can count on one hand with room to spare the amount of people who actually go to the bother of trademarking their character designs.
redadillio
Jun. 16th, 2010 01:14 am (UTC)
I'd say that proper etiquette is to ask the commissioner if its okay.
anuvia
Jun. 16th, 2010 05:30 am (UTC)
this.

Quick, simple and easy way to handle it.

yamato_iouko
Jun. 16th, 2010 02:17 pm (UTC)
Agreed. It's very possible to do something that's legal and still prickish in life, so it's best to get their permission before doing so.
lilenth
Jun. 16th, 2010 01:19 am (UTC)

I'd suggest detailing in your terms of service that commissioning a work does not include the rights to it and that you retain the right to sell prints if you deem fit unless you have made a seperate agreement with the commissioner to sell the rights.

I'd discuss it with the customer this time though since you have already taken the commission, legally you can do it but just because you can do it doesn't necessarily mean you should.
balloonpup
Jun. 16th, 2010 01:26 am (UTC)
I'd just suggest asking the commissioner. I've been asked by a couple artists and have no real issue with it, personally, but it does feel better when one asks.
moonvoice
Jun. 16th, 2010 01:31 am (UTC)
I do it all the time. If person wants exclusive rights to my artwork, or even limited rights, they're going to have go to into a contract with me that indicates that I'm not able to seek other profits from that work - and they would have to pay a lot more to justify the profits that I will lose from giving them exclusive (or limited) rights to my artwork.

I always liken it to... if you write a book, and publish it, other people can buy your book and they own that item, but they don't own the copyright to your book, they don't own the other books, and they can't say 'don't let anyone else buy that book.' They just own their copy of the book. And the price they paid for it reflects that.

The difference between wanting a single commission from an artist, and wanting exclusivity to that piece, can be the difference between buying a $100 piece of art, and paying $1000 for the same piece of art + exclusivity (at least) to reasonably cover the artist's lost sales and exclusivity.

Your client owns the artwork, but they don't own the copyright to the artwork. You are able to sell prints, or whatever you want. You don't have to ask the client, unless you've drawn one of their characters.

If you have drawn one of their character creations, then you're dealing with another kettle of fish entirely. Because you then own the copyright to the art, but they own the copyright to the character, and that makes things far less clear cut.

I would develop a commission TOS if you haven't already, to indicate that purchasing or commissioning a piece of artwork is not the same as purchasing or commissioning exclusivity; which would entail a steep hike in price. This stuff should really be taken for granted in the art world; in the same way that it already is amongst musicians and writers, but sometimes you have to make things explicit.

Edited at 2010-06-16 01:32 am (UTC)
jurann
Jun. 16th, 2010 01:36 am (UTC)
The problem is that if you write a book about a copyrighted CHARACTER using details of that character in your book, it is now a derivative work using a copyrighted character, and you need permission from the owner of the character to reproduce or sell that work. And especially in furry fandom where people's character are often a deep reflection of themselves, they can take that issue VERY personally. You may not get successfully sued, but you could get sued and find yourself in court paying legal fees and time to defend your case if you're not careful.
moonvoice
Jun. 16th, 2010 01:39 am (UTC)
That's what I was indicating when I wrote this:

"If you have drawn one of their character creations, then you're dealing with another kettle of fish entirely. Because you then own the copyright to the art, but they own the copyright to the character, and that makes things far less clear cut."

If the artwork is in the furry fandom, and you've drawn someone else's character (or in any fandom, really), it is much less clear cut.

If you go to make extended profits off artwork you've done that's involving someone else's character even with the client's permission; the person who has copyrighted the character is owed some of those profits too.

That's where contracts come in handy, I think.
jurann
Jun. 16th, 2010 01:52 am (UTC)
Ah, you are correct, I missed that part of your post or didn't understand it clearly when I first read it. =) Contracts make things a lot better, but the issue is that you need a signature in order to make a contract binding in court. =/
lilenth
Jun. 16th, 2010 07:35 pm (UTC)

Characters can't be copyrighted as a single entity, they have to be trademarked and most people do not trademark the character they hire artists to draw.

Character's can be copyrighted as part of a whole, but their designs are usually trademarked.
jurann
Jun. 16th, 2010 01:33 am (UTC)
You really need to either spell it out clearly IN ADVANCE when you take a commission that you are retaining all rights to reproduce the image, or you need to obtain the permission (preferably in writing) from the owner(s) of the characters. If the characters are copyright or in some other way owned by someone else, then reproduction falls into a grey area of the law and even if you may win a lawsuit against you, it's going to cost you time and money to defend yourself. Best to make all of this abundantly clear in advance, and failing that get permission. I know others think it might be legal, but it's not ALWAYS legal, and best to Cover Your Ass (CYA).
pandemic_panic
Jun. 16th, 2010 03:28 am (UTC)
Just an FYI (and not just aimed at you Jurann, but everyone who reads this thread), characters and their likeness cannot be copyrighted, they can only be trademarked. The difference being that copyright is instantaneous as soon as you draw/write a specific piece, where as trademarking requires money and paperwork and is not instant.

Legally, if the character is not trademarked then making, reproducing, distributing, or selling artwork of the character, so long as the seller holds the copyright to the specific piece (i.e. they drew it, or have permission from who did), is perfectly legal.

But yeah, the average joe bob furry who commissions artwork doesn't usually know this, so they will probably throw a fit and may try to bring lawyers into it (or at least attempt to, which while it would be fruitless, could certainly damage a reputation in the process), so it would be advised to state these things implicitly in your TOS, and as a courtesy ask people who commissioned you before your TOS was posted if you can sell commissioned artwork as prints.
greenreaper
Jun. 17th, 2010 07:03 am (UTC)
It's not quite true that you can't use copyright protection. There have been a few cases where famous characters were copied and a case was successfully brought for copyright (not trademark) infringement. But this generally applies only to the most famous of characters, when a particular graphical representation of that character was used.

For example, if you took Pikachu and drew a character with very similar markings and colourations that acted in the same way - copying the "specific and unique" factors that made it Pikachu - a claim could be made that you had infringed the copyright of a graphical character.

Trademarks and unfair competition is probably still a better way of handling it because you can make a claim based on "likelihood of confusion" rather than whether or not they copied enough specific features to make it copyright infringement.
chaimeleon
Jun. 16th, 2010 01:49 am (UTC)
Copy pasting from post before this:

Legally, you don't even have to ask. You created the work, and therefore have the rights to make copies or derivatives for sale. In my TOS I have the following:

"The artist reserves the right to re-post the art in question on any personal websites as an example of their artwork. The artist reserves the right to make reproductions (prints) of the artwork at their discretion. The buyer has the right to negotiate a price (starting at $200 for personal, $600 for commercial) to purchase the rights of the image so as to prevent future print sales of the image."

Which basically means, if the commissioner does NOT want me selling prints or making derivatives at any time, they need to purchase the rights to the image for a hefty fee, if not, I can use at will.

When you are taking a sketch for a commission, or a commission in an 'unfinished' stage like a sketch commission, and reworking it for sale or use in your portfolio, you are fully within your rights, even moreso, as at that point it isn't even said person's character anymore, just something that was initially sketched for someone else.
accomesafterb
Jun. 16th, 2010 04:42 pm (UTC)
It's assumed that you have the rights to your work unless you give them away in a contract or they have you sign a contract where you sign over rights to them.

Unfortunately, online you're selling to the Average Joe. A.J probably doesn't know anything about copyright or trademark. Here you run into the problem of possibly offending someone or someone assuming they bought all rights. In this case of A.J it's ethical to inform the person of your rights and their rights before the transaction. This is why contracts you write up or a simple TOS are very good ideas and save you a lot of question asking (No matter what you should have one to back you up).

I personally have a TOS that states I can use the artwork for business sale or self promotion for all small commissions I do. So to answer your question I do sell prints of commissioned artwork as long as the TOS was present.

In the end though, if you're REALLY stuck you can simply ask.
natmea
Jun. 17th, 2010 03:40 pm (UTC)
While I have the right to sell prints of my work regardless of whose characters are in it (unless they are trademarked) I wouldn't. I would see it as wrong to the commissioner and to myself. I can sell my own stuff if I have to sell prints.

But that's me.
starchildebrite
Jun. 17th, 2010 05:33 pm (UTC)
I have a journal up on my page that people can comment to at any time to note me about particular works they do not want recreated. So if one doesn't want me reselling the print version, all one must do is ask.
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