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"Surprise Commissions" and TOS

So I made a change to my TOS recently, stating all participates in a picture must agree to my TOS because of usage rights whether they are buying the artwork or not. Some have messaged me with confusion as to why, thinking it's a major inconvience and others have agreed with my stance of protecting myself and other people's characters.
As an artist, I feel the problems start since I sell prints and art packs, and commissioners agree I can do this with the artwork when they fill out my TOS agreement form, but with 'surprise' commissions, I find I don't have every participates agreement and can't use the artwork. What if the other character disagrees with my TOS? It's been a strange grey area. Also, it's been a growing problem of people using other's characters without permission in pictures that the owner doesn't agree with. I feel this protect people better, and protect me from being in the wraith of a person who I accidentally helped harm.
For a long time, I've felt uncomfortable doing people's characters in paid work without the express permission as a 'surprise' gift for the person from the commissioner. Am I in the right for not allowing it anymore? Am I being too harsh?

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( 7 comments — Leave a comment )
Jan. 29th, 2016 10:28 pm (UTC)
It's going to come down to you and your personal comfort. Personally? I run a gore account and require express written consent from all character owners. If the buyer wants to make it a surprise they don't have to say what's going to happen in the image, but just that the image is going to happen.

An alternative that you can suggest to potential clients that they have their friends stick on their profiles who they're okay buying art for them. I have one such client that has that on her profile. No one else but the three people on her profile may purchase art of her character but them.
Jan. 29th, 2016 10:35 pm (UTC)
My policy for surprise gifts has been to ask the customer to prove they are friends or in a relationship with the recipient - usually they have each other's icons on their profiles, or their galleries are filled with pictures of each other, etc. There's not much else you can do without spoiling the surprise. If someone were to fib to me after faking this "evidence" then I would just take the picture down but not lose too much sleep over it, having done my due diligence as it were. If a person is concerned that their character is used without their permission in commissions, they can put phrases on their profile like "Joe Wolf only appears in adult situations with Susan Cat" or "No giftart without my permission please. No exceptions."

EDIT: CelestinaKetzia above makes a good point - you could leave the subject of the gift a surprise but obtain blanket permission that way.

I don't mean that to sound like the onus is on the victims of character theft, because that's a crummy thing to have happen, but unfortunately I don't know a better way to handle giftart. At a certain point you have to trust that your customer is telling the truth.

As far as prints go I know you have the right to make them in a paid transaction (even if they didn't want you to after the fact, but chose not to pay for print rights - you'd still technically have the legal right to but that's not a good way to get repeat business, is it :P). I am very curious how that would work out legally in a giftart situation though, where one of the subjects didn't know their character was going to potentially appear in a print. That's a good question.

Edited at 2016-01-29 10:37 pm (UTC)
Jan. 29th, 2016 10:47 pm (UTC)
Yeah the print question is what really made me make the rule. I do allow commissioners to request not to have a print done(I don't make prints of literally everything, so normally I ask before I do so anyways). My TOS holds no 'sensitive' commission information, so agreeing to it wouldn't ruin the 'surprise' of what the picture actually is.
As brought up above, keeping the specific content secret can be on the terms of the friends, but I would hope a friend lets the other know, "Yo your going to be in a (insert fetish here) picture, are you okay with that?" And if they aren't, they should not agree to my TOS and not get in the picture, or just tell their friend no and let me know they won't be in the picture of that type.

I'm glad people have different ideas about this. It's giving me some good stuff to go by.
Jan. 29th, 2016 11:01 pm (UTC)
I'd contact the owner(s) of the character(s) with "X wants to commission a picture of (character). Do you have any issues or restrictions to such an image? Do you have any issues with my TOS?"

Based on those responses you can decide if you want to take the commission or not.

It covers your aft, allows the owner to put limits (plenty of folks are fine with PG or pinup, but not adult content), but doesn't actually tell them anything about the surprise other than it's art by you, if you take the commission.
Jan. 29th, 2016 11:50 pm (UTC)
This is also a good idea.

I don't expect to find the perfect solution today, but ya'll have been helpful, thank you!
Jan. 30th, 2016 09:26 am (UTC)
I don't have much to weigh in about involved parties of a commission agreeing to a TOS but...

If a client wants to commission art from me featuring someone else's character in a suggestive or PG-13+ setting, I require the other person to send me a note, comment or email expressing permission. If that can't be done, I won't do the commission.

Several years ago it didn't even occur to me that not doing the above could be problematic. I was naiive I guess? I would just go ahead and draw it without the other person's permission and one situation turned into a mess - the other person was not ok with the subject matter, was not friends anymore with my client, and would definitely have said no to the whole thing if I had only asked first.

So I require permission from now on, even if their profiles suggest they're in relationships - you never know :/
Feb. 2nd, 2016 09:10 pm (UTC)
Like Celestina said about nsfw stuff, i always ask first. Otherwise, i don't really ask for permission because all of my gift commissions are clean pg rated, no pg-13 or above unless asking for permission.

Gift art is gift art. Not asking for anything in return, it's like a hobby i do with artists regularly.

I'd respect with the artist with permission but i feel like it's really not necessary and more of a bother. Really more of a major hassle honestly.

I love surprise gift commissions to people but having them asking the artist that i have permission to use their characters..?

Having them to come to you saying i have permission to use their character kinda ruins the whole thing on gift commissions. It's not that exciting anymore, you know?

But hey, it's up to you on this matter.

( 7 comments — Leave a comment )


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