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Selling artwork of someone else's OC?

Hi, all,
I've been thinking a lot on copyrights and stuff, these kinds of things really confuses me. 
My question is, is it alright to sell the artwork that you drew of someone else's oc? Like if someone commission you to draw a painting of their OC, can you sell the original physical drawing of it for profit without asking or their permission? what about prints?

I see people selling their sketches of drawings done for commissioners to other people, is this OK?
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neolucky
Aug. 7th, 2012 07:25 am (UTC)
I searched high and low, and couldn't find a post already dedicated to this topic, so I decided to let it go through.

Personally, If I am drawing a traditional commission and the buyer has no interest in the original, I then sell it at a convention at a fairly cheap price. Or I change it to be a slightly different design.

Artists who are more careful, will ask the owner how they feel about it, but generally it's completely legal to sell an original image to someone else, despite being commissioned for it. Permission is not necessary, but is a very nice thing to do for customers.

I sell prints of art I've been contracted to do for paysites and commission clients. I have it in my TOS that I frequently use these images in portfolio books and art prints. As far as I know it's legally totally kosher, and unless the client pays for rights to the art, the artist has all control over distribution and sales.

It's absolutely OK to see people selling those images =).

Edited at 2012-08-07 07:26 am (UTC)
kaekokino
Aug. 9th, 2012 03:43 pm (UTC)
Ive seen it in the TOS sometimes too tho right?

something like "all commission work may or may not be used as advertisement or the base for other merchandise"

so if someone commissions you, and they read the terms, they cant complain about it?
dazen_cobalt
Aug. 7th, 2012 07:28 am (UTC)
I think while it is technically ok and you are well in your rights to do it I'd consider it a slippery slope. I feel like the original art should go to the person who commissioned it. Prints are another story. I say so long as you're not claiming the char itself you should be ok.
_patches_
Aug. 7th, 2012 07:46 am (UTC)
Neolucky made a lot of the good points.

As a courtesy, I always ask the person who purchased a commission if they would like to own the original. I usually give it to them for a low price + shipping, or just for free + shipping. All depends on the piece and how much time I put into it.

While you are legally okay to sell and make prints of any art you've created, I personally think it's best that you either put it in your TOS to warn people ahead of time, or get their permission... That way you don't have to worry about any hard feelings. It's always good to cover your bases.

Don't let anyone give you the "Well, I bought the commission, don't I own it?" speech, unless the transaction was specifically to receive an original piece. Anyone expecting you to mail them the original and take money out of your pocket to do so is silly.

Personally, I would prefer to always own art that I've bought from people, and I would also appreciate it if they didn't sell prints that included my original character... But if they want to, I know I can't stop them. So that's why I usually take extra precautions when selling art of other's characters. Do unto others as you'd have them do unto you and all that jazz, blah blah blah, yakkity-smakkity.
chronidu
Aug. 7th, 2012 07:47 am (UTC)
Legally speaking if the character is not trademarked, the commissioned piece is yours to do what you please with.

Is it moral/good business ethic/going to make your customers happy that you are selling artwork of their character? Well that's a completely different story.

Personally speaking if in this situation I would ask the characters owners first before selling, just as I would prefer to be asked were my commission being sold ((heck I even might want it for myself after all)). That aside, if they responded with a no, I would edit the character enough to not be said commissioners character.
wolf_goat
Aug. 7th, 2012 08:59 am (UTC)
As others have said, technically there is nothing to stop you, but some people are very protective of their characters in fandom communities and thus it's curteous to ask about it. If you think this situation might come up regularly, make a TOS entry about it.

For prints, it's a very good idea to add into your TOS that you reserve the right to make prints of commissioned artwork unless negotiated otherwise beforehand (which may incur an extra fee, depending on the subject matter).
pocket_entropy
Aug. 7th, 2012 09:04 am (UTC)
This is a topic I've been curious about for awhile. I have the original of a commission the customer never paid for and I've been going back and forth on whether to sell it or not.
mialattia
Aug. 7th, 2012 11:49 am (UTC)
You should sell it, for sure. They didn't even honor their end of the contract (not paying), so you are not bound by those terms. No artist should be tricked into working for nothing.
thaily
Aug. 7th, 2012 09:42 am (UTC)
Unless you have negotiated otherwise, the artist retains all rights to commissioned work. Including commercial.

This is standard for freelance work.
mialattia
Aug. 7th, 2012 11:48 am (UTC)
Yup, this is how it works "in the real world"! Just because a client pays you to produce a piece doesn't mean they buy exclusive rights to it in doing so. Alerting them/asking before you do is a simple courtesy that's good for when you deal with fandom art, since there are clients who don't realize this.

Typically artists include the original traditional work with the purchase, but technically (in 'professional client' markets) the client would pay again to actually own the piece, and an additional (hefty) fee to block any reproductions from being made.

Selling prints is standard practice, of commissioned work or no, and selling originals depends on how you want to handle it. You could give it to them, have them buy it, or sell it. I would suggest if you don't include it in your commission price, you offer it to them for an additional fee (BUT MAKE THIS CLEAR UP FRONT, as I said, many clients don't understand that owning the physical piece will cost more!). If they don't take it, you are free to sell it.
frisket17
Aug. 7th, 2012 12:20 pm (UTC)
For my own commissions, I do not do prints or otherwise unless there's permission from the owner. (this is just my own standing and doesn't reflect on the ethics/legal standing of it.. just personally what I do.).

If I have plans for an image and want to do a print set, I set it up before hand that I'll include them in X project, but they must realize I plan on selling prints, etc. -- So I also give the option in the up front too when I can.

But good question, btw :)
flyingfluff
Aug. 7th, 2012 01:37 pm (UTC)
Depends on the TOS the client agrees to when they commissioned the artist. Unless otherwise specified, normally the artist will retain the rights to that image.
feropup
Aug. 7th, 2012 02:07 pm (UTC)
Since copyright law in the US defaults all rights to the creator, unless it is specifically in their specific commission agreement that the commissioner has the rights to the picture that they are commissioning, the artist retains full rights to the image unless the character is trademarked. This includes reselling the original if the commissioner didn't want to pay for it, or selling prints of the work if the artist finds it particularly striking.

That being said, it is nice to put it in the ToS to remind people of that who don't know it.

That also being said, it is common courtesy that the artist should offer to sell the original to the commissioner before putting up to sale for the public, but if the commissioner can't or won't buy it, the artist is fully within their right to sell it to anyone who wants it.

To put it simply, if you don't want them reselling the original, or selling prints of the work, you have to negotiate that with the artist before commissioning them. And be prepared to probably pay more to have exclusive rights to the image, because you are taking away potential profit from the artist.
taelifoe
Aug. 7th, 2012 05:30 pm (UTC)
Yup, this is what I was thinking, as well.
nambroth
Aug. 7th, 2012 02:16 pm (UTC)
Okay, so there are a few ways to look at it, but in the end, it is your VERY BEST INTEREST to outline how you deal with these situations in a ToS or at least a nicely written email that the client must agree to before any art or money happens.

Legally-- unless the character is trademarked or part of a product's trade dress (the overall selling look of a marketable item or line of items), OR unless you both sign a written contract that agrees to the sale of right to the image-- you, the artist, own all rights to the expression (the artwork) of the character that you do.

Now, if someone commissions you for a physical piece of art, and expects to get it in the mail, well! That is one thing. This is where it pays to be very clear in your ToS and agreement with the customer.

If someone commissions you, and you do a physical piece of art, but the customer does not expect the original, then yes .. you may sell it legally. It would be VERY polite to offer it to sale to the original customer first, but not required. If you want to avoid any drama, state very specifically in your ToS what you do with unclaimed originals-- if you would like to sell them then be clear. That way the client knows exactly what is going to happen beforehand. Some people are totally okay with this and some are not... head this problem off before it starts by writing a clear ToS.

The same with prints. If you offer prints of your stuff and you want to do so with commissions also, you legally can, but consider writing that into your ToS as well so that it doesn't blindside an ignorant client and cause drama later on. As an example... until recently, I tended to keep my commission prices a bit low (compared to industry) and as a compromise, I sell prints of stuff. The added income from print sales used to balance out keeping the commission price lower and everyone was happy. On the unusual occasion that someone did not like the idea of prints being sold of their commissioned work, I charged an extra "no prints" fee that helped cover any income I lost from not making print sales of the image. The important part is that I had all this in my ToS and no one was blindsided or angry in the end!

No, really; writing this stuff into your ToS isn't legally necessar... but my goodness can it save you a lot of headache in the long run!

karthegrax
Aug. 7th, 2012 02:30 pm (UTC)
From what I've seen, most artists will include a "I can sell this art if I choose, post it in whatever gallery I choose, advertise myself with it, UNLESS you discuss with me to keep it private before the commission commences" (this normally carries a fee) In their TOS.

Given certain members of the fandom can be quite.. grumpy, I really would advise against it though. Personally I don't want their entire watcher base shouting on my page over a drawing I sold for $10. It's drama I could do without.

Honestly I don't like the idea of selling an image you have been PAID to create for someone else for profit. I guess most of you could argue that its no different to selling prints of personal art, I just think I'd feel ripped off if I bought art that (I wasn't aware) had been drawn for a separate paying customer. But, then again, I've never supported myself through commissions, and I guess it makes sense that you would get every $ you could.

TL/DR: Yes you can, but, most likely at some point, you will get someone who throws a hissy that you have.
nightmare_chan2
Aug. 7th, 2012 03:21 pm (UTC)
I'm just gonna echo everyone that while it's legal, it should have some sort of mention in your TOS so people aren't blindsided. As someone who frequently orders artwork of OCs only, I know one time I was very upset at someone selling prints of an OC I had gotten from her when nothing was mentioned in her TOS.

On the other hand, it's also good to offer the original to the owner. If the original is available, I will more then likely purchase it and I think most people feel the same - and if they don't, then I don't see anything wrong about selling a commissioned original if the owner of the OC didn't have an interest in purchasing it.

I would maybe also write who's OC the character belongs to when you sell it though, assuming you'd do it on a site. I've seen cases where people sell originals with OCs and the winners assume they are adoptables... or worse where the artist claims that OC belongs to them. I'm sure you won't but just throwing it out there! I feel like the whole topic is a little bit more sensistive then selling fanart. If you have the warnings, certain people will feel comfortable with working with all of this. However, if you don't give a heads up of some sort I can see how some tension can be created later between you and a few unsuspecting customers.
eski
Aug. 7th, 2012 03:44 pm (UTC)
Also repeating what everyone else has said here! It's perfectly legal, but a good move to inform them first. I don't do a lot of traditional art commissions any more, mostly digital. As far as rights to make prints and things go, it's also automatic that the artist retains the rights. Unless the contract/tos states the art is a "work for hire" specifically or the artist is an employee (as opposed to a contractor) at least.

My Terms of Service informs all clients that I retain the rights to the resulting image, including reproduction rights. I find not every client knows the in-and-outs of copyright and trademark law, so adding clauses to my ToS to inform them of certain things is nice. I think it's about finding a balance between legality and courtesy; Retain your rights and protect theirs, but make sure everyone knows what's going on even if it should seem obvious.
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