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Advice about Copyright and all that.

I know you guys have many posts addressing copyright issues and I know what the general thought is regarding it - however, I did an art piece for a relative and giving copyright over was assumed in this case... no price agreed upon though he promised to pay me, not a problem as it was really a gift and I would have done it for free.  It's for his personal brewing company - to my knowledge, not to be sold, just for fun, anyway.  So I spend time drawing this image, it's a fully colored piece with no background, something I'd normally charge $50-75 for the image itself on a letter-sized cardstock. I send off the hi-res raw scan and color-corrected scans and will be sending the originals soon. 

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.
BUT......
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)."
Were you talking about a case where copyright handed over with the art is agreed upon beforehand, or just in general when you commission someone, where you pay for someone to draw you art, and you give them the original, but still retain the actual rights to the work you created?  Just wanted clarification on what you meant."

...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.
Artist's beware has moved!
Do NOT repost your old bewares. They are being archived.
https://artistsbeware.info/

Comments

( 63 comments — Leave a comment )
ankewehner
Nov. 24th, 2013 08:37 am (UTC)
Has he been in business for a long time? He may be going by laws that are 20 or 30 years out of date with the "copyright needs to be registered" bit.
enter_data_here
Nov. 24th, 2013 11:45 pm (UTC)
He has been running this business for about 40 years, according to my mom, and he got it from his dad. My mom says altogether they have been running 50+ years. So this is what I was thinking too, after reading a site that says copyright has changed over time to further protect artists due to the invention of copy machines and the internet, which made owning the original artwork not proof enough of copyright anymore.
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epiceternity
Nov. 24th, 2013 09:36 am (UTC)
"rights in cinematographic works"

It's worth noting that copyrights are different according to what media they are covering. Standard copyrights and who gets them and how long they last etc is different if it's film, music, art, written works and so on. It's easy to get confused if you're researching copyrights and end up looking at the wrong media ones without knowing. *this is why copyright law is such a headache*
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epiceternity
Nov. 24th, 2013 09:26 am (UTC)
(I'm speaking about UK copyright as that's what I'm familiar with. I know US is very similar but has a few differences so feel free to correct me if it's not the case in the US)

You can not register for a copyright, it comes into existence as soon as the idea becomes something physical.

(You can buy an extra level of copyright protection by using companies that for a fee will give out a number and prove additional support if you had to take someone to court for copyright infringement. But it's not required for copyright to exisit)

The only way copyright changes hands from the holder to another is if it's assigned (sold) or licensed (rented). Normally this is done with a paper/digital contract or agreement.

(note- along with copyright, there is also moral rights which cover the right to be credited as creator and right to alter the creation, these also can be wavered or assigned etc.)

When copyright is assigned then creator gives up any right to use the image. This is why most try to licence copyrighted things so they don't lose them entirely. So yes, you shouldn't have posted the image without permission from the new copyright holder.

So in cases where you've been commissioned by others to make art, the copyright is automatically yours, not the commissioners unless you've-
a. assigned or licensed it.
b. otherwise stated that the commissioner gets copyright.

One other example of copyright assignment would be me working for a studio. When I first started, I signed a contract that automatically assigns the right to any images I create for the studio to the studio.
There is also a confidentiality agreement that means I can't talk about anything I create for the studio until it is published (I can talk privately to family/close friends etc but not other studios/companies/social media to clarify).
Now because my copyright is automatically bought out, this is my studio fee is higher than say, what I get paid working in a shop. This is not only for skill/experience/professionalism but to also compensate me for the copyright assignments.

Sadly there's a lot of commissioner ignorance with some believing that they automatically get the copyright because they've paid for the image to be made. This is not so and the fact you've got a reminder of this in your TOS is good!

Now you can register Trademarks, which is what logos usually fall under as they tend to be the business brand logo so maybe he was confusing it with that?
epiceternity
Nov. 24th, 2013 09:40 am (UTC)
Also, forgot to mention. If you put something up on the internet (which you have the copyright to) it's always a good idea to put a copyright notice on it. The copyright notice should consist of the © symbol, your name (or screen name for internet security) and the date.
This is due to the 'orphan works' rule being used as an excuse for companies to help themselves to anything that doesn't have the copyright holder's information on.
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ibagface
Nov. 24th, 2013 12:36 pm (UTC)
I will explain to you what I personally was taught on copyright from my lecturers.
When you create something, it is automatically copyrighted to yourself. When being commissioned, unless specifically agreed upon, that copyright is still retained by yourself, the artist. You are essentially creating an image for someone and giving them permission to use that image. This may be for a certain amount of time, for certain area's of the world and for only certain uses. This is why its a good idea to discuss exactly what your allowing your commissioner to use them for before creating. Unless the commissioner buys that copyright from you then they have to essentially jump through your hoops. If they use it over the time/out of the territories you have specified/used on something you havnt agreed upon then they should compensate you for that.
As for your specific case, its up to you what you want to do. You can inform him that he is infact wrong on the copyright laws and that you will be using the art for your portfolio unless he wishes to buy the copyright. If he doesnt want to buy the copyright then thats fine and let him know what he can use it for. Id suggest that until you come upon an agreement you dont accept the money he has sent and that you dont allow him to use the image until you guys have sorted out an agreement.
sunhawk
Nov. 24th, 2013 04:00 pm (UTC)
Interesting, in my experience it's almost always been assumed that of course the artist has a right to post the artwork to their own portfolio unless there is something sensitive in nature about the artwork itself or the client specifically asks that it be kept private. If you were trying to sell stuff with his logo on it that would be different, but to just showcase a copy for your records is usually not a problem.

Posting something on the Internet does not mean you are releasing it to public domain, as you have to post specific notifications about your intention to do so (ie posting a Creative Commons license / explicitly state you give permission for anyone to use the artwork for any reason, etc) though it is a common excuse that people try to use when they steal the artwork of others. Even on the Internet, your art remains copyrighted to you or to whoever bought the copyright.

He is incorrect that art produced for a fee is not copyrighted to the artist, money is not the issue, it is the contract you sign where you explicitly state you are giving him copyright control and you still retain moral rights. If he didn't explicitly buy the copyright, he just paid you to create the logo, then he has even less of a leg to stand on. Typically you charge an additional fee for copyright rights, not just your hourly rate + materials, usually its at least a couple hundred bucks, otherwise they are just essentially paying for the right to use artwork you created, the only thing they would have a right to would be their own company name and that's assuming they trademarked it.

Legalities aside and regardless of whether he paid for the copyright, even though he didn't explicitly tell you not to post the logo before he had a chance to "launch" it, it's generally a good idea to wait for the client to be the one to post their new product/logo if you are aware that it is part of a rebranding campaign or the material is otherwise meant to be released to the public by the company ie. new product photos, new catalogues, etc. Though the chances of the client's customers seeing it first through you is slim, it's just good courtesy to your clients to acknowledge that the material is now theirs and they will naturally want control over how it is distributed.
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nambroth
Nov. 24th, 2013 05:07 pm (UTC)
Yep-- if you (the OP) is in the USA, this is correct.

The only time someone that is purchasing the art automatically owns rights to it is when you are working for a person or company where you agreed to a contract stating this before you begin any work.

For example, many game companies will have artists sign a contract stating that the company owns the copyright/all rights to artworks created by the artist while at work (and some actually say that they own ALL art created by the artist while they are employed, at work or at home, so be careful).

But for freelance? You own the copyright, and all other rights, unless a sale/transfer of rights was expressly agreed upon. In some states it is actually ILLEGAL to transfer copyright without a written, and signed, contract between the two parties!

Short version: Unless you have a contract between you that agrees otherwise, the copyright is yours, OP.

How you deal with the situation from here is up to you.
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stormrunner1981
Nov. 24th, 2013 05:22 pm (UTC)
http://www.copyright.gov/title17/92chap2.html


Note: Work for hire is when you are doing work for say Disney - you cannot copyright your image you drew of the new character in the new film (seen here: http://www.copyright.gov/history/studies/study13.pdf). They also have a right to say you can or cannot use it in a portfolio (though Disney is surprisingly okay with it last I heard).

Commissions are a slipper slope unless there is a contract or TOS to state otherwise. (see page 142 of study 13 - page 23 of the pdf)

It also says that unless there is a written contract of some sort - transfer cannot be done.

As for worry of Fair Use: http://www.copyright.gov/history/studies/study14.pdf

The author (you in this case as no contract) has to indicate to such extent that someone can use your work as a whole. So anyone that takes it can be held accountable.

This is what I have gathered reading through these extensively. Anyone can correct me if necessary.

Posted links so that you can show this to him if he has a problem with it. Sorry.



Edited at 2013-11-24 05:25 pm (UTC)
tifaria
Nov. 24th, 2013 05:26 pm (UTC)
Oh wow, they are so very, very wrong. Sorry for the wall of text, but I don't know a better way to respond than targeting the individual statements here.

I also planned on copyrighting the image so it couldn't be copied

They can't copyright the image if they haven't paid you for the right to do so.

nor can I copyright it since it is now in the public domain by virtue of you posting it without a copyright symbol.

Nothing posted online is public domain unless you attach a creative commons license to it/otherwise explicitly say you are allowing it to be used as such. And again, unless they have paid you for commercial rights to the image, you still retain the copyright. You had the copyright the moment you created the image and putting a little copyright symbol next to it doesn't change that.

ust 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).

Wrong. They're so wrong. Well... okay, they're mostly wrong. There are certainly cases where a client may ask that you not post something before their product launches (in which case, this should be in a contract that you both agree on), or if you work for a studio, you may not be allowed to post work at all because you may have signed an agreement saying that you won't. However, you are certainly allowed to use your own work in your portfolio, otherwise, how can you possibly show what you're capable of?

Copyright or Trademark is something the is applied for (to the government), it is not something that is intrinsic to the art.

You can apply for copyright if you want, but the moment you create something in a fixed form, you own the copyright. Applying for one just offers you additional protection should you end up in court over it. Trademark is a whole other can of worms and does need to be applied for.

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.

The purchaser is only paying for the physical work itself, so they are not the sole owner unless they have paid you for the copyright/commercial use rights. Saying that's true unless an agreement is negotiated is incorrect. The artist is the owner/copyright holder unless the client pays the proper fees to the rights. That is the default.

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

It's polite to let people know in your TOS that you'll be using the pieces in your portfolio, but ultimately, it's your art and you are allowed to do so.

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?

That is what he's saying, yes. And he's wrong (again, unless he has paid for commercial rights). You do not have to apply for a copyright to your own work, or to post it online/in a portfolio (unless your client wants you to wait until after a product launches or something, in which case, that needs to be in a contract). Working without a TOS does not mean you forfeit your copyright, and it does not mean that this person now owns it. A TOS is a good idea to protect yourself, but those are basic things that don't change even with one.

I'm not sure where they're getting their information from, but it sounds like it may be outdated information. I'm honestly not sure. As others have suggested, I would get all this ironed out before accepting the payment for the image. Hope you get it all worked out!
kayfox
Nov. 26th, 2013 06:45 am (UTC)
I know its pedantic, but the creative commons is not public domain (except one of the "licenses", which is a declaration that the work is in the public domain).

How the creative commons works is you have this work that would otherwise be a copyright violation for someone to use, and you provide with it a license that allows them to do things, but only under certain conditions. The GNU General Public License and others like it work on the same principal.
(no subject) - tifaria - Nov. 28th, 2013 06:38 pm (UTC) - Expand
vellacraptor
Nov. 24th, 2013 07:17 pm (UTC)
Yeah, let him know that posting it on facebook may have ruined the surprise, but that public domain is 100% NOT true.

Also for copyright, YOU hold that automatically. NOT HIM. Regardless of the situation. The ony instance when it is transferred is when you explicitly say "you now hold the copyright" or similar, whether in contract form or through email.

So you may proceed to correct him and let him know it is still copy-written and safe. :)
teekchan
Nov. 24th, 2013 07:44 pm (UTC)
Skipping over the comments but, the artist retains all copyright automatically unless it is 'work for hire' or the person buys the copyright.

I'd be going by 'he hasn't paid, it's not his yet'. It's still protected under your copyright, as they haven't transferred over to him yet.
enter_data_here
Nov. 25th, 2013 03:09 am (UTC)
If I do any more art for anyone, free or not, I'm handing over a copy of my TOS which will include a link to the .gov site. I'm pretty lax with how people use my art so long as they don't replicate it for profit or claim credit for the actual skill employed to create it.
enter_data_here
Nov. 25th, 2013 12:15 am (UTC)
First of all, thank you for your responses. What you all say is how I understood it too. Unfortunately I will likely have to call the copyright office or whoever deals with that and ask them directly, because he is not the kind of person to accept info unless it's from a higher authority. I don't have any intention to argue with him though.

Second, I'm still going through comments and will have to come back later tonight to finish them, but I updated the OP with some additional info:
"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. "

Edited at 2013-11-25 12:16 am (UTC)
absturz
Nov. 25th, 2013 01:03 am (UTC)
You've heard it by now a couple of times, you remain to be the copyright holder of your art unless it was agreed otherwise (either verbally or in black and white).

That aside, he sounds like an unpleasant client, the cheap kind that does not wish to pay much and does not have a lot of respect for an artist.
He was not specific on what he wants (just a commission or also exclusive rights?), and now he talks you into what he would like to have. He also seems to be guilt-tripping - how could you have possibly known that it was meant to be a surprise?

And it doesn't matter what he has done for your family before - you're doing buisness, and it's two different pairs of shoes. At last that's how I think.

2/10, would not want to have as client.
enter_data_here
Nov. 25th, 2013 01:49 am (UTC)
I think it was more the fact that we weren't on the same page, as I obviously have different view on copyright than he did. I generally trust this community on the issue cause you guys actually do research on this and plenty of you have real experience in this type of business (as in, licensing, assigning copyright for publishing, etc).

As for his possibly being cheap: no, he came to me specifically because it was a family favor and a project for FUN, and that I wouldn't charge him the same amount I would charge a stranger. He's already stated that if I don't like what he's sent we can work it out. Even if he does turn it into a big business, I'm happy that he'd be using my art. They aren't rich either, which is why I'm seeing it as helping out. My only issue was with his copyright knowledge.

I genuinely believe this was a miscommunication with incorrect info on copyright, not an instance of dealing with bad people.
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canilupine
Nov. 25th, 2013 02:19 am (UTC)
The law regarding an employer holding copyright to the artwork doesn't apply in this case, because you are not his employee. He is your customer. He was fully in the wrong to assume copyright.

Since the "damage" is minimal, you can both take this as a lesson learned, and hopefully he understands that he can't simply take artists for granted.
enter_data_here
Nov. 25th, 2013 03:04 am (UTC)
I am just afraid he will claim it is work for hire by virtue of money being exchanged. If it gets nasty I'll just drop it and be wary henceforth. I might have to start using my TOS again even with relatives and free gifts. :C Which makes me sad.
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enter_data_here
Nov. 25th, 2013 03:02 am (UTC)
I sent him an email containing info from the http://www.copyright.gov/ site... I hope he doesn't have a negative reaction, but he will only respond to facts copied and pasted. I feel confident now that I understood copyright correctly, thank you all for the links and advice.

I'm scared to even go there but I would like to be able to say that I tried.
enter_data_here
Nov. 25th, 2013 02:24 pm (UTC)
Got this email response:

"Jessica,

This discussion is over. You need to improve your reading comprehension skills. Do not respond to this email."

So I guess it's safe to say he doesn't take being wrong well after all. Stupid, cause the site is pretty easy to understand, even for me. Fortunately I couldn't care less how he feels about it and my mom is not getting in the middle of it. Glad for that, she says that's how he is and let it go, it's not worth it and I agree. But if he pays another person to draw for him then automatically assumes copyright, he's going to be sued, and rightfully. Thanks everyone. Hopefully he takes some time to think about it but I doubt it. From now on I'll deal with him using a TOS though it's entirely possible that our relationship is ruined over this.
otherscape
Nov. 25th, 2013 03:54 pm (UTC)
Is he still going to use your work for is logo though? Did you give him a hi-res copy?
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