Now, my issue isn't with the exchange itself but what he said afterward, when I (admittedly) goofed and posted a small version to my FB page, friends and fof - people I know in person only. I took it down as soon as he sent me the response, and I am positive that it wasn't up long enough to be stolen (roughly 2 hours, direct upload not linked from an image hosting site), certainly not by my friends/relatives anyway. But, he never told me it was supposed to be a surprise, nor that I couldn't post it to my portfolio, the only problem was that I forgot to post watermark or copyright on the pic when I posted. Something I will never do again in such a case.
Now, just for clarification, I don't really do commissions anymore. But in the past, I had a TOS which specified that I would retain copyright of any image I created and the right to use in my portfolio, but only to protect myself from having clients sell prints of my work. Otherwise I was pretty lax about how the images were used, and only would issue copyright of my work if it was agreed upon before hand.
None of that was referenced to in this case, it was just a "I want a picture," "Ok what do you want?" and "I want this and that and I'll pay you, it's for my brewery (implying I'll own copyright)" "Ok I'll get it done! I hope you like it!" So I'm not concerned about this particular case.
Anyway, the email:
"First of all, the art is great! Way more than I expected. I will send you off a check Monday and I hope it is appropriate. Being in the BIZ I know what
I would pay for a similar art and I hope you agree. If not, let me know and we will work something out.
I had planned on having this printed out, labeling and distributing my home made beer to family and friends for Christmas. I also planned on copyrighting the image so it couldn't be copied. Unfortunately, since you posted my art (since I am paying for it) on Facebook, I can neither surprise my family (or possibly friends) with my amazing labels and great tasting beer nor can I copyright it since it is now in the public domain by virtue of you posting it without a copyright symbol.
It really isn't a big deal but just so you know in the future, when you produce art for a fee, you cannot post or display or even use it in your portfolio without the permission of the owner of the art (the guy or gal that is paying you). That all said, the art is AWESOME !!!!! I will make sure I get you a label when they are done for your portfolio."
This confused me, as from how I understand you guys explained it, copyright belongs to whoever made the image the moment it is created, no matter where it's posted. Obviously it's not a smart idea to post without watermark or copyright. As I said, it wasn't on FB long enough for there to be any impact, and what he seemed to be saying is that because I posted it, even for a short while, that he can no longer copyright it and it belongs to the public??
I sent an email for clarification:
"Just a quick question, when you said "It really isn't a big deal but just so you know in the future, when you produce art for a fee, you cannot post or display or even use it in your portfolio without the permission of the owner of the art (the guy or gal that is paying you)."
...And received this:
"Please note a Copyright or Trademark is something the is applied for (to the government), it is not something that is intrinsic to
the art. My comments below relate to my experience regarding commercial art generation by employees and or contractors. I am not
an attorney but I believe the following to be typical and common in my industry.
When you produce art for a fee, the art is not yours. It is the sole property of the purchaser of the art. The owner of the
art can apply for a Copyright or Trademark, whichever is appropriate, if he or she chooses.
The above statement is true unless an agreement to the contrary is negotiated between the artist and client. Everything
is negotiable. If you want to include art in a portfolio or post online, it is always best to make that a condition of accepting
a commission. Almost never would a customer decline."
Is he saying that any paid image automatically is copyright the person buying it? Or that I have to apply for a copyright anytime I want to claim my own art or post it online? Or is all this if I'm working without a TOS beforehand?
Can anyone in the graphic design/art for published works/etc industry experience let me know what is going on with this? My relative - who is a sign maker and deals with this frequently - says something different than what I previously understood about the subject. Just for future reference. Thanks!
Edit: I want to clarify WHY the exchange went the way it did. What happened is said relative and his wife surprised us by visiting and were here for about a week iirc. At NO POINT during their visit was any commission-type business mentioned, and they were here OFTEN. As they were packing their bags IN THEIR CAR to LEAVE THAT MINUTE, he then surprises me with this "I want you to draw me something" business. There was literally only enough time to find out what he wanted and why he wanted it, and that he would pay me but not how much. Then he left. No copyright was actually discussed and I don't work for him.. During the actual WIP time I kept trying to get feedback from him on how he liked the ideas and all that. He wasn't very responsive except that he liked it, so that isn't an issue. Again at no time was anything legal discussed and I have 0 experience with this kind of exchange, especially without a TOS.
I say handing copyright over to him was "implied" because he apparently decided it without telling me, which is partially why I was so shocked when he immediately laid claim to it. After he clarified in his email, I now understand WHY he believes it's his. I don't want to fight with him and his whole family because they are the kinds of people who you want to avoid even the smallest drama at all costs - and I say that not to insult but simply as a sad fact. I do love them and they have helped our family out a few times, which is why I offered to do it for free or whatever he felt like paying for cheap while I was in the middle of the drawing. So as I said payment is not an issue, though he sent something but didn't specify how much. I will be happy with the art cost, honestly.
In any case. I quickly told him he could have copyright in a text after the fact and apologized for ruining the surprise and I have determined that from now on, I will not do any more art for him without his signing a TOS beforehand and actual discussion. I'd rather he just take the image and be done with it than argue with him about it.
I also want to say in case your first thought is "He was intentionally playing you!" I don't' believe so. I don't know them intimately, and while I don't like certain aspects of their personality, I do know them well enough that there has never been any indication that they are those kinds of people. Just wrong information often, and don't want to listen to anything contrary unless you shove it in their face with cold hard facts. It is also entirely possible that he forgot about it until he was about to leave, or thought of it on the spot while they were leaving.