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Art, copyrights, and you.
13 years ago
I often see a lot of misinformation on these subjects floating around, so I made this journal to hopefully be helpful to those of you out there who may not be so sure of your rights. And of course, if anything I've said here is factually faulty, I welcome correction.
1: The artist owns the art.
Upon creation, artwork is automatically copyrighted to its creator whether digital or traditional. It doesn't matter if you commissioned it or if it depicts your character, Unless you have specifically negotiated to purchase the copyright, it does not belong to you.
What this means: The artist is legally entitled to display it where they wish, sell prints of it or other commercial uses, and you do not (again, unless the copyright was purchased from them). Often, an artist will allow you to repost the commission to your gallery but that is a courtesy and not a right. The artwork's owner can file a DMCA to get the art taken down if it is posted somewhere against their wishes.
In the case of a commission for traditional art, even if your character is depicted, the artist has the right to sell the original if your transaction did not include receiving the physical piece.
2: Characters cannot be copyrighted in the same way that art is.
Yes you heard me. Copyright law doesn't exist to protect ideas, it exists to protect the expression of that idea (i.e. art, see #1 or in the case of when they're a part of something bigger like stories, which should also be copyrighted to be covered by this.)
Characters can be trademarked, but this process requires them to have a distinctive enough likeness that sets them apart from other characters, and for them to be used commercially. Once trademarked, in order to keep it you would have to show willing to legally defend this trademark. This is why companies like Disney are very defensive of their characters' likenesses, even to the point of making daycare centres remove murals.
What this means: Legal action cannot be taken against someone 'stealing' your fursona. While unethical, non-trademarked characters are not protected by law except in instances where representations of them (like artwork, again see #1) are protected.
3: Artwork commissions are not "work for hire".
I've seen people try to refute point #1 by claiming that commissioning an artist is work for hire. This is incorrect. Work for hire requires that the person be considered your employee, and a freelance artist is not. It also still requires a contract giving you the rights to the work!
What this means: Commissions are a contract between two independent parties, not an employee-employer relationship. This argument is entirely wrong.
4: "Right of first sale".
While the copyright remains with the creator still (see #1), if you purchase a physical representation of art like a print, traditional drawing or painting; just like with any object (eg a book) you have ownership of that object and have the right to re-sell it. Generally, it is seen as good etiquette to offer the original artist a percentage if selling it for a profit, or to give them the opportunity to buy it back, but you are not legally obligated to do either of those things.
What this means: You can sell the object that you own, but cannot make copies and sell those, or distribute it in other ways such as scanning and sharing it online as those violate the original copyright.
1: The artist owns the art.
Upon creation, artwork is automatically copyrighted to its creator whether digital or traditional. It doesn't matter if you commissioned it or if it depicts your character, Unless you have specifically negotiated to purchase the copyright, it does not belong to you.
What this means: The artist is legally entitled to display it where they wish, sell prints of it or other commercial uses, and you do not (again, unless the copyright was purchased from them). Often, an artist will allow you to repost the commission to your gallery but that is a courtesy and not a right. The artwork's owner can file a DMCA to get the art taken down if it is posted somewhere against their wishes.
In the case of a commission for traditional art, even if your character is depicted, the artist has the right to sell the original if your transaction did not include receiving the physical piece.
2: Characters cannot be copyrighted in the same way that art is.
Yes you heard me. Copyright law doesn't exist to protect ideas, it exists to protect the expression of that idea (i.e. art, see #1 or in the case of when they're a part of something bigger like stories, which should also be copyrighted to be covered by this.)
Characters can be trademarked, but this process requires them to have a distinctive enough likeness that sets them apart from other characters, and for them to be used commercially. Once trademarked, in order to keep it you would have to show willing to legally defend this trademark. This is why companies like Disney are very defensive of their characters' likenesses, even to the point of making daycare centres remove murals.
What this means: Legal action cannot be taken against someone 'stealing' your fursona. While unethical, non-trademarked characters are not protected by law except in instances where representations of them (like artwork, again see #1) are protected.
3: Artwork commissions are not "work for hire".
I've seen people try to refute point #1 by claiming that commissioning an artist is work for hire. This is incorrect. Work for hire requires that the person be considered your employee, and a freelance artist is not. It also still requires a contract giving you the rights to the work!
What this means: Commissions are a contract between two independent parties, not an employee-employer relationship. This argument is entirely wrong.
4: "Right of first sale".
While the copyright remains with the creator still (see #1), if you purchase a physical representation of art like a print, traditional drawing or painting; just like with any object (eg a book) you have ownership of that object and have the right to re-sell it. Generally, it is seen as good etiquette to offer the original artist a percentage if selling it for a profit, or to give them the opportunity to buy it back, but you are not legally obligated to do either of those things.
What this means: You can sell the object that you own, but cannot make copies and sell those, or distribute it in other ways such as scanning and sharing it online as those violate the original copyright.
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My Max falls under this, since he and the others are part of a large storybook.
aka, everything that is not furry murrsonas.
:p I got schooled in this by a very good friend that is a professional author.
It's also a reason I don't post any of my completed story work online yet. :S Having Max's visual and written description makes him a stronger candidate for story character copyright.
Oh god this, so this. Which is why a lot of fursonas fall short. There aren't that many truly distinctive ones, and by the nature of the fandom it's HARD to make something that is distinctive.
Ex. a Traditional art book.
I've been told on Furbuy that artwork can be bought/resold without artists permission for a profit. (Course this is by someone banned on FA for auction tampering, so I'm confused and slightly not believing.)
On the other hand, I bought much artwork from an artist who says that if I resell anything, they get a percentage of the sale.
I think this falls under the first paragraph, cause the artist DOES own the art, but I get mixed signals.
I know every artist is different, but is this done on a case by case basis? Or is this legit.
Cause I want to know the line between 'not screwing the artist' and following the rules.
Or not getting screwed myself, all together.
2) For You:
"For You" permits users to repost work created for them ONLY when the original artist has granted permission to do so. Credit must be attributed to the original artist. The original artist reserves rights to revoke permission at any time or any reason.
In my honest opinion, I do not think it right that the original artist the right to revoke permission at any time for any reason. My reason being because it violates the basic, fundamental principles of Offer and Acceptance in contract law in the sense that an artist would be free to break a binding agreement on a whim or out of spite if, for example, you and the artist have a falling-out or a disagreement about something in the future.
If there is going to be anything like what is outlined in the above provision, the artist should give a full refund to the commissioner and/or compensate them with a replacement drawing. It would be inequitable to have a rule where someone gives with one hand and takes with another.
I don't mind the artists retaining some say over their work, but if you paid for a picture and permission was given from the start, then why should the artist turn around and do XYZ?
I mean, I know of situations where an artist suddenly wants to change his or her image for whatever reason and then asks people to take down stuff. I would say to that tough luck if I were the one making the law. An artist is responsible for the the content they create and need to be prepared to accept the consequences. Whether it be if the commissioner alters the pic or lets someone else colour it.
It all boils down to personal responsibility. True, conflicts will arise, but it would be inequitable for an artist to give with one hand and take with another, especially if money and promises were made. It would be the equivalent of say, if you commissioned Pablo Picasso to paint a certain kind of picture for you during his "Rose period". He agrees, you pay him, he does it and hands it over to you. Next two months later, he goes through his "Blue period" and then orders you to take down the painting you commissioned him for saying he wants to change his image. You can see how detrimental this sort of policy is?
If you want the rights, that means the artist can no longer legally make money off that art, so you'll be paying $300+ in any normal situation whatsoever. In short, a refund for customers who don't want to respect the rights of the artist is basically the cusotmer saying 'your time was worth nothing, all I wanted was something to hang on my wall', in which case you should buy a print as right of first sale applies.
In fact, technically the right to even -display- the image in your own personal gallery isn't implicit in your bog-standard commission as it counts (under some legal definitions) as a reproduction. A lot of people don't mind, and a lot (including me) have clauses in their TOS that allow commissioners limited rights to post the art in galleries.
The point is that just because everyone does something doesn't make it legal or right.
This doesn't mean artist are arseholes, it just shows the freedom that furry commissioners actually enjoy when it comes to art!
But I also ask why should an artist retain rights over something you paid good money to have as your very own and which does not have anything in it that is his own and is copyrighted? Why should the commissioner be shortchanged over the whims of an artist? On top of that, I actually can see how such a legal policy could be used for fraud.
On a side note,
"The issue comes down to the concept of ownership -- very capitalistic. At what point does an artwork stop being the property of the creating artist and becomes that of the person who has paid to have it created and now theoretically owns the artwork?
Unless there are agreed upon stipulations as to what the buyer can or can not do with the purchased “artwork” once it comes into the purchaser (commissioner)’s hands and the purchaser should be free to do whatever he or she wishes to do with it. It might even be argued that the purchaser even has the right to make and sell copies of the artwork that he has purchased from the artist if that is not clearly stated in the initial agreement.
The idea that ‘you’ve paid your money to have the artist create a painting just for you, but when finished it still belongs to the artist’ is idiotic. How would that apply to anything else purchased in the real world?
Further, “perpetual artistic ownership” becomes indefensible when one considers that digital “originals” are exact duplicates down to the last byte to the millions of copies downloaded off the Internet once the artwork has been posted.
“The original artist reserves rights to revoke permission at any time or any reason.” What then is the purchaser purchasing in his initial agreement with the artist? Permission to rent the artwork?
FurAffinity inserting itself into the producer-purchaser relationship after the deal has been concluded sounds very much like Big Brotherism or preening ego."
As I said - if you want a copy that's yours to do with as you wish, then buy a physical copy and hang it proudly. If you want rights to do anything with -digital- images, then make sure the artist you commission is happy for you to do those things, and if you're worried about them renegging later, then have them draw up an agreement of what you both agree is fair use, and both sign it. You get what you want, the artist has their rights respected and they can't decide to take things back later on.
Rights do go both ways, it's just that the creators of works have more implicit rights than commissioners. If you want more, you have to ask, and contracts are the best way of making that happen fairly :)
You're not allowed to make money off someone's art if you don't own the rights to it, full stop. Taking a picture down out of an online gallery when that art doesn not belong to you should have no financial consequences whatsoever!
I'm not quite sure I understand the logic here.
. You pay, say, US $300 for a commission from an artist on FA.
. You have PayPal records showing the monetary transaction and everything.
. The picture is done and given to you to display in your gallery, which you do.
. Sometime later, the artist, for whatever reason, changes his or her mind and tells you to take down the pic which you paid for.
. You are left with either no pics in your gallery or are several pics shorter, and you just lost US $300.
To me, it almost kind of amounts to a fraud where an artist gives with one hand and takes with another. To me, I just can't quite wrap my head around how someone can pay for a service, either not have that service rendered or have it revoked through no fault of your own, and then not get you money back or part of it. That previous sentence, is what really troubles me.
However - you need to know a few things about the commision first.
1 - is it a digital commission with a print included, or an original work that you're receiving, or simply a digital artwork?
2 - were the rights to the image included in the price?
^ You need to sort these things out before you commission artwork. Always get a physical copy if you can (legally), and talk rights before throwing money if you're worried about it. Again, most artists won't do that kind of thing, it's incredibly rare for someone to both clean out their own gallery -and- ask every person that's commissioned them to take down the commissioned pieces as well, but they -do- have the right to do so. Whether or not they should is... well, immaterial, as it's out of the control of either party.
As I said, it's up to you to negotiate the rights you want before the commisison takes place. It's not a perfect system by any means, but it's certainly workable and can be equitable as long as both parties know the law and can reach a mutually beneficial agreement. It just takes a little more effort but is generally worth it.
In fact, most artists will be fine with simple rights being given with no extra cost - for example from my own TOS:
"As the artist, I hold the copyright over each piece of work I create. I do, however, release to the commissioner the rights to post the work in your own gallery, crop the art for use as an icon and save and print copies for personal use once payment is made in full."
That's a given. Anything more than that, like commercial use or rights to alter - you'd have to pay for.
Anyway, yeah. I understand where you're coming from, and I agree that it's a bit of a crap move to pull a 'delete all and rescind posting privileges', but... well, it's legal. You can disagree with the law and you can work around it with personal contracts though - as long as you know where you stand.
Thank you so much for your time, patience and kindness in helping me better understand. I'm still not too kosher with that law, but as a Law student, I do have respect for it.
The service that you paid for was the creation of the art. The piece was made. That is hours of their life that the artist cannot get back, and that is what your money purchased. Revoking permission for distribution does not give the artist that time back, nor does it mean that your copy of it ceases to exist (since I'd like to assume that people who commission art tend to save it to their computer). Expecting a refund is excessive considering you DID get what you paid for - the drawing of the artwork.
Like Fallimar pointed out, the best course of action is simply to ensure that everything is negotiated and agreed upon beforehand.
What I am talking about is when an artist revokes permission for you to post it anywhere or share it with anyone else so they can look at it and comment and whatnot. Intention also factors in. On a site like this, I don't think the majority of people will commission someone for an artwork which they cannot post and have people comment and look at it and stuff. You also pay for that privilege. That's why most people commission artwork. To me, it seems to amount to a fraud that you pay money to have work done and both parties know that the intention is to distribute/post it in your gallery, only for the artist to turn around and revoke permission altogether and keep the money you paid him or her. It seems to be giving with one hand and taking with another.
:Lionus: does elaborate the point a bit further than I do, but I do see where you are coming from and I do agree with what Fallimar said, that the best course to avoid any trouble would be to work out everything beforehand.
Anyway, another thing - Commissioners cannot alter art they've commissioned in any way without expressed permission. You can't commisison a sketch and then get someone else to finish it, you can't commisison lineart and then colour it yourself, and you can't crop art to remove signatures or even make ICONS. Seriously! Again, it's artist being cool that allows any of this to happen at all, it is not a right you have as a commissioner.
I LOVE the entertainment industry's take on reality. I almost wish I could live in their little bubbly dream world :P
I really appreciate your posts here by the way. You've been very insightful with your contributions =)
Heh. Thanks, I just hope that some of the mostly-useless trivia I remember can eventually help someone out once in a while. :)
This is completely hypothetical, but if the T.V. show Family Guy all of a sudden added an anthropomorphic skunk character as a recurring character, a skunk that is always depicted wearing a black leather trenchcoat, fishnet shirt, and black jeans, you're saying that I wouldn't have a case if I tried to claim they were using my character and profiting from his likeness without my consent?
That doesn't sound right.
For some reason I imagine a hobo in the 1960's, slurring his speech as he drinks himself into a stupor in an alleyway in New York, yammering on about how he is the original creator of Mickey Mouse, and has a crumpled up piece of paper with a sketch of said mouse in it, dated from the 1940's, and how because of how fucked up this is, he's now a homeless drunk while Disney and his heirs are living the high life.
Mind you, that probably doesn't apply since there's actually a physical depiction of the character in play.
Keep in mind that legality and community consensus are two hugely different things - If someone blatantly uses someone else's character design it's something that the community as a whole will condemn, and with good moral reason - but they don't have a legal leg to stand on. It's like the Chinese mascot mills nicking designs from Mixedcandy and such and selling their products on ebay. It's reprehensible and most people agree it's a dick move, but it's still legal as the character designs haven't been trademarked and don't fall under copyright law. the same companies like to even use the likenesses of trademarked characters and 'get around' the issue by calling the character something generic or claiming they're different because of some minor inconsistency. Even that's most likely illegal, but international prosecution is a hugely expensive and ultimately futile business unless you're made of money and/or in the pocket of every high-ranking judge/politician available.
Yeah, it sucks, but remember that the laws are there to prevent specific transgressions, not be umbrellas that protect everyone. The system is flawed, but thankfully we have communities who have their own set of guidelines that tend to work rather well at discouraging crap behaviour in all but the most arseholish of people, and said arseholes generally destroy all their credibility by defending their bad moves.
While this initially seems to be a subject brought up due to what the artist and commissioner can do with the art of a commissioned piece(assuming here) I'm researching what might be the other side of such commissioned deals, the characters themselves.
I found this site here, and it might be worth a read. http://www.wipo.int/copyright/en/faq/faqs.htm
According to it, a character can indeed be protected by copyright, but there doesn't seem to be much detailed info on it.
I'm going to try to contact some professional intellectual property lawyers about the subject, and I will be sure to inform you of anything I find out on this matter. ( in the mean time I'll be researching more!)
This is something that really does need to be cleared up in online art communities, so hopefully this leads to enlightenment! ^^