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So this is my first time doing this thing. Posting on a LJ that is (as well as openly stepping in to the furry fandom), so pardon my lack of knowing how to do anything. I've lurked for a while and while I've been watching the offline professional art world for a while, I've never really looked in to the world of commissions. Reading these pages have sent shivers down my spine and are making me reluctant to do so. However looking through some various stuff, I've noticed something in these commissions that I've seen lacking compared to most offline commissioners, at least in the sense of portrait and landscape painters.

http://www.roberthuitt.com/Commission%20agreement.htm

That. Primarily considering property rights and intellectual property rights. Looking through all of the old emails and all of that kind of thing displayed on this site, I have not once seen any form of this. I just figured of all the places to throw this out there so that it might be of some good, this might be the best. I've seen a lot of stuff where there are definite blurs between where a copyright starts and where it ends, so why not write it out? A simple version would be:

The character(s) represented within this piece are intellectual property of _________ and the title of ownership for said piece, upon full completion of payment, is transferred from __________ to ___________.

Pretty much states, legally as soon as a signature is placed, that the characters represented within the drawing belong to someone, so regardless of whether or not you own the drawing, you might or might not own the right to use the character, but also states clearly that the drawing/illustration itself is property of the one who is buying it. That means they can do with it as they wish.

Stops the abuse of the art piece outside of its decided purpose, but at the same time gives ownership of what was paid for. And if they want to paint a mustache on their nice new piece of property, they can. You do not have copyright over what is drawn, but you do have ownership over the physical drawing. The TOS of commissioners rarely seems to cover such stuff and are, from what I can tell, only thinly legally binding at best.

But I figured I would throw this out there. And again, apologize for doing anything wrong, lord knows I probably did.

Edit:

Okay, obviously, this is being misconstrued.

No, I do not mean that all artists should copy paste this in to their TOS. As I have been informed, the wording is horribly off and shouldn't really be used and all that wonderful stuff.

The main point of this was for people to at least be aware of certain aspects of ownership that might or might not be included in TOSs, something found in almost all offline art commissions. So, forget that I wrote anything about the entire transferrance thing at least be willing to talk to an artist as to the rights involved with a piece.

This isn't levying blame at one party, it's the responsibility of both to understand it and acknowledge that it is something that exists. I just meant that artists might want to think about adding something like this to their TOS and that commissioners should be on the look out for them just to understand what they are buying.

Nothing more.

Again, the example was not : "I think you should all add this."

It was simply : "Hey, something like this might be useful." Of course, with more actually looking in to what is accurate and possible to use.
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Comments

( 22 comments — Leave a comment )
lurkerwisp
Jan. 4th, 2011 03:48 pm (UTC)
This specific example looks like it would actually not help an artist who is not selling the rights to the image with the commission. It's more usual (in furry art at least) for the commissioner to own the character, but not be automatically granted the rights to make printed copies of their commission, post it everywhere online or use the image commercially.

That said, you're right. It would probably be a very good idea to have all of that written out clearly before any work begins.
mandyseley
Jan. 4th, 2011 04:11 pm (UTC)
This is what I was thinking. Great for traditional commissions or printed work, but the reason that isn't covered as much in furry art is probably because of the overwhelming number of digital commissions. Very often there is no physical object exchanged at all.

In such cases it's typical for the artist to retain the rights to the specific image, though the commissioner still owns the character. Basically, the artist isn't allowed to use that character anymore, but the buyer also isn't allowed to take that specific picture and modify/redistribute it. Copyright law supports this idea, as the artist doesn't give up the rights to any of their creations - paid for or not - unless they specifically sign them away.

I imagine for traditional commissions, it's more common for buyers to WANT the rights to the image, and be willing/able to pay for it - whereas in the furry fandom, it's a lot more common for people to just want to see their character drawn in different styles or get an image they can use as a reference for roleplaying, etc.
lilenth
Jan. 4th, 2011 05:22 pm (UTC)

Three things are wrongly assumed in your post.

One of the main types of artwork for many of artists in this community is furry artwork, furries as a rule pay pitiful amounts of money for their commissions, usually nowhere near enough to even begin to compensate an artist for the rights. So the only way people would switch to a transfer of all rights as standard is if the price considerably grew to either industry standard or near industry standard.

Secondly you can't technically "own" aka copyright a character, the vast majority of people do not own their characters, nor do they have them protected by anything more than the misconstruing of the legalities involved.

To register a character design, one would trademark it, which requires registering and using said design as part of interstate commerce in the US since many artists here are from the US. Other countries have different requirements but either way, it's not an automatically granted right like copyright so it costs time, money and knowledge of the procedure to specifically protect a character design.

A character may only be copyrighted as part of a whole, ie as part of a book, the person may own the character and his/her actions, personality and functionality within the main manuscript. This of course does not preclude characters have similar looks, names or anything else since a lot would be required to violate such a copyright.

Furthermore to be blunt, most characters would not qualify for any sort of protection even if registered because they're often so massively unoriginal and rarely have the iconic appeal that is needed to successfully trademark a design.

Lastly anyone who purchases an original from an artist automatically legally has the right to do whatever they want with that original (except they can't make copies or otherwise use it for things like that unless the rights were explicitly transfered via a contract), they can paint a moustache on it, burn it, sell it, line the bottom of their hamsters cage with it if they wish.
lilenth
Jan. 4th, 2011 05:26 pm (UTC)

As an add on to my last paragraph, while you can do what you like with your personal copy of the original, the artist retains something called moral rights which may make certain actions a violation of the artist's rights, ie if you were to deface an artwork, redisplay it and attribute it to them still, it would be a violation of their moral rights.
eskyes
Jan. 5th, 2011 08:24 pm (UTC)
"Lastly anyone who purchases an original from an artist automatically legally has the right to do whatever they want with that original (except they can't make copies or otherwise use it for things like that unless the rights were explicitly transfered via a contract), they can paint a moustache on it, burn it, sell it, line the bottom of their hamsters cage with it if they wish."

If that were true, the statement above wouldn't need to be a staple of the artist industry though. That's the thing. You have to be VERY specific about what you are paying for when someone is making something for you. Transference of rights is obscenely important and to specifically state that you are transferring the rights of ownership of the piece.

Unless specifically stated within the contract that you are buying anything more than for their time making the piece, you haven't bought the actual piece. They might be nice to let you hang it on their wall, but legally its theirs'. I spoke with an actual lawyer about this and unless SPECIFICALLY specified that you are buying the piece, legally they could come up to you one day and say "Hey, I want it back".

I have been looking this up and while no one has actually done much with it, legally if you have not contracted to sell the actual piece, they can legally get it back. It might be more trouble than its worth, but any artist who has made an image can, within their legal rights, ask the person they 'sold' it to to delete all copies and take it out of their gallery when they have a hissy fit and leave the fandom as per their property rights since they have not transferred rights of ownership to the person they are commissioning.
lilenth
Jan. 6th, 2011 08:23 am (UTC)

Lawyers aren't always right, the field of copyright is one of the most complicated and fraught areas of legal expertise.

Your suggested wording is actually quite dangerous because it's really ambivalent due to "ownership" not being defined (We really don't need the headaches, we have enough with idiots who think that because they paid for it they get all the rights), not to mention one cannot waive one's moral rights as far as I am aware without risking all of ones rights, and as has already been established, the main art consumer base for many artists in this community is a fandom that pays far far less than going wages, of course we're not going to give them all the damn whistles when they don't even pay for half a whistle.
stormslegacy
Jan. 4th, 2011 07:32 pm (UTC)
TOS are always good to have =3 that said, I would not sell my rights to reproduction for the small prices people pay. Professional artists get compensated a lot of money for those rights. I would include a contract with the clause stated for commercial work, but not for a standard commission.

Lilenth's post also succinctly sums up what I was thinking otherwise.
eskyes
Jan. 5th, 2011 08:26 pm (UTC)
Ya, but my main issue is that there isn't even ever a clause of "This can be used for personal use". Forget reproduction rights, those are another different ballpark, I am just talking about simple basic transference of ownership of the image. It's never even stated "This can be used for your personal use, but may not be reproduced", and anyone could easily go to all of their commissioners and state that they had to remove the things from their galleries because they are not pieces of art they own.
sovy
Jan. 4th, 2011 09:50 pm (UTC)
"The character(s) represented within this piece are intellectual property of _________ and the title of ownership for said piece, upon full completion of payment, is transferred from __________ to ___________."

Prefacing that I am not a lawyer.

There is not much legal bite saying that a person owns the character in a picture. You get into trademark and merchandising law when it comes to character; either the owner has it already or they don't but you are not in a position to give it to your client. Now, technically, you aren't going to get into any trouble if you leave it as is but if the intent you want to show to your client is that you do not claim ownership of the characters in the picture then it would be better just to spell that out; "This artist does not own the characters in this picture."

Going off that tangent someone could have created a character but I can redraw it in a different pose, different clothes, etc, and not be breaking the law. The exception is if the character is trademarked. There are some ways to get around this, like using the character in a parody if you are in the US. If someone takes the character you made and sold it like on keychains or figurines then we would have to go under merchandising laws and character licensing.

The stock furry artist TOS goes as follows:

1. Payment upfront before any work is done.
2. I own the copyright of the image if it is a digital image.
3. If there is a physical drawing then you own the physical drawing but I still retain the reproduction rights of the image.
4. You may upload the image to your personal gallery provided you give a link back to the original image and say who drew it in the image page description.
monsterfeets
Jan. 4th, 2011 09:52 pm (UTC)
Buying the rights to a piece of artwork to do with 'as you wish' is vastly more expensive than just buying a piece of artwork. They're two separate things in practice and in law. Sure if you want to you can, but generally people aren't interested in paying large sums of money for a commission, so you don't sell the right, for example, to make copies of and make money off of the piece. They don't technically ever have the right to deface it either because of moral rights, but no one is going to be able to stop them anyway.
eskyes
Jan. 5th, 2011 08:32 pm (UTC)
Ah, okay, so I stumbled when I didn't mention reproduction rights. Okay, my bad. I just meant personal rights.

Legally, if you commission an artist for a piece, they paint you it, you pay for it and then stick it on your wall but there isn't a clause stating that you have transferred ownership at all? Even if the contract states "Cannot be used for reproduction, only for personal use", that is still transferring some ownership. Without that?

The artist at any time could come with a lawyer in tow and force you to take the piece off of your wall and give it back to them because it is, legally, their property. They created it, you paid them to create it, but it is still their artwork and you have not contractually gotten the rights for personal use. It's still theirs and legally it's "on loan".

So, given a huge amount of drama happens, an artist on a huge site could legally state that there was no contract and force everyone to take down the pieces they paid for from their galleries. Which would be shitty if you paid for it to enjoy it, only to never see it again. Of course, you could just save it to your computer, but unless you have a contract or TOS that specifically states that they have the right to display it freely (if crediting the artist) there is no legal right to do so.

As an artist, that kind of worries me and it seems unprofessional to pretty much keep every single right about a piece, no even giving them rights to use it for their personal use.

And while they might not be doing it intentionally, that is essentially what they are doing unless they have something stating that.
eskyes
Jan. 5th, 2011 08:38 pm (UTC)
And as for ownership of a character:

Technically, as soon as you think up an idea and put pen to paper and it is an idea that is yours.

You own it. That is your idea and your character. With or without a trademark or copyright, you own that idea.

A copyright is NOT necessary to own it and it be yours. A copyright is just a nice legal document that shows that it is recognized that you own it and prevents others from publicly taking it.

In fact, a great example of this is with Blackberry. They used some cell phone data that originated in Canada and copyrighted it. Low and behold, the Canadians sued them and were able to get a court order to shut down Blackberry unless they complied with the suit. Of course, Blackberry finally buckled, but still, it shows that just because you copyrighted someone else's idea does not mean that you own it. As long as you can prove original creator (and have a ton of money if you are taking on, say, Disney), you own it.

Of course, that's harder for characters where all you need to do is change the name and the design by at least 10% for it not to be copying, but still.

If they can prove that they came up with it first (which is MUCH easier if you have time stamped stuff uploaded to an art site), they can sue you for larsony. It's a REALLY hard thing to do for characters and such, but it's a good legal precedent to at least have it stated "Hey, this is X's character, just so you know, legally and that stuff."
lilenth
Jan. 6th, 2011 08:48 am (UTC)

No, you need to do some research rather than kneejerking.

Once you put an idea down on paper, you own that specific expression of that idea not the idea itself, ie if you were to draw a drow with a sword, you would own that particular image of a drow with a sword but you do not own drows with swords.

Where did you get that guff about copyright from?

Copyright isn't a legal document, it's an automatic series of rights granted upon authorship of a work. A registered copyright is a legal document but you do not need to register to own a copyright to your own created work, you only really need to register for a copyright IF the material is to be used in a commercial manner and if there may be reason to sue someone over it.

The Canadian case (which I have not heard of) was probably a prior registered copyright, a copyright on the data registered in Canada would take precendence over a copyright registered in the US.

No, who has been teaching you this stuff? They have grossly misinformed you.

There is no magical percentage where upon altering something will make it yours. There is no such law, if your lawyer friend has been telling you so? He or she should go back to law school since the determination of whether a work is close or near close enough to a trademark or a element of a copyrighted work to make it a violation of a trademark or copyright can ONLY be determined in a court of law.

No, if you're going into a court of law, you need proof of copyright registeration, that is the only acceptable evidence of authorship, though in a pinch a statement of creation witnessed and signed by someone in an acceptable career and a later registeration may be acceptable.

Furthermore it's Larceny, and if copyright applied to characters which is doesn't? Larceny doesn't apply to copyright since copyright is a CIVIL right. That makes violating it a civil crime and Larceny is a criminal offence. It's only in certain jurisdictions and with a theft of a certain large amount amount that copyright becomes a felony. Furthermore Larceny involves the stealing of a physical personal item and requires that one take complete posession of it, so stealing a painting out of someone's workshop? Would be larceny, copying their sketch would not be.

Research, it's good for you, try it please before you try to speak authoritively on a subject.
eskyes
Jan. 5th, 2011 08:39 pm (UTC)
Primarily, what I was suggesting was less about necessity and more about etiquette of ownership. It's not necessary, but I feel like it'd be less "up in the air" as a lot of stuff I've seen around here if its stated in black and white contractually.
lilenth
Jan. 6th, 2011 08:28 am (UTC)

"The artist at any time could come with a lawyer in tow and force you to take the piece off of your wall and give it back to them because it is, legally, their property. They created it, you paid them to create it, but it is still their artwork and you have not contractually gotten the rights for personal use. It's still theirs and legally it's "on loan"."

Not if they wanted to continue working in the business, they can't. It's the same thing that keeps dA from appropriating too many works even though they can do it thanks to their ToS, long term income > short term profit.

You're basically claiming that just because you think that artists can shoot themselves in the foot that they're going to do so.

When people pay us artists decent wages for artwork, then they can start aggitating about getting more bang for their buck. It is not unprofessional to hand over rights that haven't been paid for with already low priced artwork.

Artist's have a right to earn a living just like everyone else. Personally I like it when my local stores have giveaways that net me extra stuff for my money but that doesn't make them obliged to hold them all the time.
lilenth
Jan. 6th, 2011 08:29 am (UTC)

*It is not unprofessional to not hand over rights,
eskyes
Jan. 6th, 2011 04:02 pm (UTC)
It IS if you are not informing an unsuspecting buyer that you are not retaining rights. If someone doesn't know what is going on with a sale and you are -not- telling them in full that you retain all rights to a piece, including their personal rights, that is completely unprofessional, regardless of the hypothetical situations it could cause.

And I'm sorry that I even suggested this, I thought it would be something nifty that would help out in certain cases, but obviously I was horribly mistaken.
eskyes
Jan. 6th, 2011 04:08 pm (UTC)
And seriously, it was a suggestion. I really can't say I appreciate at all you jumping down my throat in such a really rude matter to point out how I was wrong, uninformed and all that jazz. If I was wrong, you can point it out without coming across so abrasive and condescending. I wasn't trying to speak authoritatively, I was trying to get my thoughts across but obviously didn't do a good enough job at it.

It's really not nice and I can't say I appreciate it. I was just trying to help out, not to be told I didn't know anything and that I should have just stayed in my corner. I get it now though, I was horribly misinformed about how art works in online communities. My bad. I'll keep my mouth shut from now on.
lilenth
Jan. 6th, 2011 04:42 pm (UTC)

Before you buy anything you should research it, I wouldn't buy a car without research, why would you buy a piece of artwork without knowing what you were buying?

They have personal rights, specifically that they may sell or otherwise dispose of the original piece if they take possession of it, Artists retain moral rights anyway. Realistically, no artist is going to try to take back work off of someone, it just doesn't happen; The only case I've ever seen of anything like it happening was a well known drama queen who got pissy because she'd -given- a friend some drawings, they'd had a fight and the friend sold them. The friend was completely within her legal rights to dispose of the pieces she'd been given.

If an artist did try to demand back a work of art? They'd probably get ruled against in a court of law unless the contract specified the original belonged to them, since the client presuming that being given the original meant it was theirs to do with as they wished would be considered a reasonable assumption.

This is a busy community with many people coming here for information, if you want to post something informative to it, you need to do your research so you at least have an inkling of what you're talking about rather than plunging into it with the best will in the world and not a clue as to what you're talking about.

The reason I've wrote such long replies to you is because you not only spouted incorrect information but when given the right info rather than look into it? You spouted yet more incorrect information and tried to justify your initial incorrect ideas. Nobody is saying you need to go back to your corner or shut up, we however are saying that you need to research.

The initial text you provided? No lawyer would ever advise anyone to include in their contract, it's not specific enough and could lead to problems or the loss of the artist's copyright.

I can understand your motivations but I don't think you understand enough about the situation. Fact is standard operating procedure for most artists is to give the client the original to do with as they wish (within reason) and to let them display it on their personal site if they wish. You're basically arguing that clients need rights that by precedent they usually enjoy anyway and if they don't it's because the contract states they don't.
eskyes
Jan. 6th, 2011 05:35 pm (UTC)
I wasn't trying to state that if they don't enjoy it its because the contract doesn't state that.

All I was saying was:

A) From most TOSs I see on FA, this kind of thing isn't discussed.

B) If they are not discussed, that leaves them open to being legally very wobbly. And while it might not matter in small amounts, in times where you are paying a larger sum of money (100+), it is kind of important.

C) If someone is paying you money for a service, you should at least do the credit of explaining what exactly they are or aren't paying for. That is fair. I can't agree with "Well the buyer should no better".

D) If you DON'T want to transfer said rights over, that's fine, just state as much so that the person knows.

That is what I was trying to say, pure and simple. That is ALL my suggestion was.
lilenth
Jan. 6th, 2011 06:26 pm (UTC)

100+ is actually fairly low.

Ever consider that perhaps they should ask if they don't find it in the artist's terms of service?

The problem was your suggestion was couched in poor legal terms that would have simply hurt the artist and that it was backed up by a wealth of misinformation. It's one thing to think that clients should be able to do with the original what they want, it's quite another thing to suggest artist's should include a dangerous bit of text in their terms of service and to back it up with some glaringly wrong ideas.
eskyes
Jan. 6th, 2011 06:40 pm (UTC)
Yes I get it, I wrote a bad example. I didn't MEAN for someone to copy paste that and stick it on to their TOS.

It was an EXAMPLE of a vague idea. Not a "You should all have this on there".

I miswrote my intention, and used information that I thought was from a reliable source wrong. Okay, that's fine, poke at it some more.

I wasn't saying add this to your TOS, I was offering brain food.

My main point is that BOTH artists and buyers (Thus the tile of the thread) should be actively aware of this.
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