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Discussion: TOS question

So this recently came up and it made me concerned. The artist in question has this in their TOS

"-If you have not bought or traded for the art piece and you and me have some sort of conflict, you will be added to a list and will no longer have permission to use it. That will be theft."

This refers to their freebie art. Is this allowed on a TOS?

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( 5 comments — Leave a comment )
Jun. 11th, 2016 03:18 am (UTC)
In short, yes.

In long: This is essentially revoking redistribution rights. They are not automatically granted to the client regardless of the character depicted on the art. When an artist promises you redistribution rights in their ToS they can stipulate in which conditions they can be revoked.

In this instance, it's fairly simple. If it's a gift and the artist has a falling out with you, they revoke the rights. Now legally that's perfectly kosher. Moral wise and maturity wise? Well, I'm sure that's open for debate, but I know of a few folks I've done art for that I would personally hope to never see them using the work again.
Jun. 11th, 2016 03:46 am (UTC)
Just because it's in a TOS doesn't exactly make it legally binding if the clause happens to be unenforceable by law and quite frankly a judge has final say on that, not random people on the internet.

It may seem as cut and dry as revoking redistribution rights but that's not always the reality in cases that appear to be cut and dry especially as there are other laws pertaining to gifts so a revocation of posting rights may not apply depending on the jurisdiction.

But I do believe we need new laws that spell out and protect rights of redistribution of the recipient/commissioner in which their own IP is being used. But I doubt that will happen as this sort of issue is very much a non-issue outside of the fandom class artist when the work is not being used commercially and merely posted online in some gallery of sorts.

However, that being said I would avoid the trouble and politely refuse a gift that comes with a string attached to it like that. Proper friends do not attach such strings to gifts. ;)Even with a falling out it's still a memory of when times are good and certainly not something that should be erased or a time when a gift is used to be vindictive.

Edited at 2016-06-11 03:47 am (UTC)
Jun. 12th, 2016 03:01 am (UTC)
Pretty sure the gift thing you're talking about pertains to physical items, not digital files.
Jun. 11th, 2016 06:25 am (UTC)
If you buy a physical piece of art, like a traditional con badge or a fursuit, it is yours. You can take a picture of your blender and post it to Twitter because you own that blender.

When you buy digital art you aren't actually buying an item. When you buy digital art you are paying an artist for a service, the creation of the art. You don't own the art so you don't control where it can be posted.

Unless you arrange upfront for rights to distribute the art don't assume you have these rights. The artist owns the rights to the image and buying these rights is extra.

If you are no longer friends with an artist and they tell you to take down the art they made for you that seems petty but within their rights unless you bought the rights to the artwork.

The Short Version: Yes it's allowed and even if it wasn't in the ToS you should assume this is the case.
Hunty Belmnt
Jun. 11th, 2016 05:00 pm (UTC)
Douchey, but it's allowed.
( 5 comments — Leave a comment )


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