Advice - Selling prints of Commissioned pieces

[quescostumes.livejournal.com]

I've recently heard of an artist who is selling prints that contains other people's characters. The art and style is her own, and the art with characters are either gifts or commissions. The prints for sale include the original piece uploaded to art sites, without any recoloring or hiding others' characters. Should people buy these prints, it's basically making money off of others' designs, right?

It's not okay, right? Is it legal? Rude? Or just frowned upon?

How should someone handle this kind of situation if the artist in question is a friend?

Any advice, A_B?

Edit: Thanks everyone for your very useful replies! :)

Comments

[cyiakanami.livejournal.com]

As far as I know even if it's someone else's character, they are basically signing "trademarked" rights over to said artist for creative license and commons.
All artwork produced by said artist is theirs fully and legally unless otherwise stated through legal binding contract. And said rights to most artists art is and should be on a higher pay scale then most personal based client commissions.

Even if you were to pay the artist for the picture of your character and then turn around and trademark said character and so on. Legally you handed over those said usage rights when you paid the artist to draw said character.

Is using commissioned pictures in bad form? I don't personally think so. Artists especially ones who work private commissioner/personal based are always in need of extra funds and a great way to bring in extra revenue is those prints.

I have a clause in my TOS also stating that I hold all rights to said artwork I produce and am able to redistribute as I see fit. I do not claim any said character, but claim full rights to my work including distribution.

Edited for typo

[stina paulin højgaard (from livejournal.com)]

Personally I'm very glad to see such a detailed post about this subject as it has been on my mind as well if this was allowed or not. I can see how commissions should/is allowed to be sold of by the artist.

However my worry is gift art. If someone uses one of my characters as gift art for me as a birthday gift, Christmas present or just a simple cheering up gift, without me knowing about it, are/should they be allowed/have the rights to sell that as a print as well?

[shukivengeance.livejournal.com]

Yes they do.

A character has no legal protection unless they are trademarked or a part of a copyright-protected piece of work like a novel. (And if they do fall under these, then an unauthorized depiction is copyright infringement and can be legally pursued.)

There is no such "intellectual property" law to stop anyone doing what they like with the average OC or fursona.

[nambroth.livejournal.com]

Exactly this. However, while not at all legally necessary, it sure is more polite to ask someone before selling prints of their giftart if they are cool with it. Most people are, especially if you offer them a free print. :)

[shukivengeance.livejournal.com]

Oh I agree. Regardless of rights it's still good form to make sure the person in question is okay with it.

[nambroth.livejournal.com]

Totally. Sorry if it seemed that I was implying you thought otherwise! I just wanted to throw it into the conversation for others to read. :)

[onesteptwo.livejournal.com]

I'm pretty sure you got my dragon in an exchange YEARS ago and I was surprised that you asked if it was okay to use my picture for prints. 1) Because I figured it was your right anyway and 2) that you liked what you did with him well enough to sell.

[nambroth.livejournal.com]

My memory is terrible, but if indeed I did paint your dragon, I do hope you liked it! I try really hard to be thoughtful of both customers and folks I did gift/exchange art for.

[onesteptwo.livejournal.com]

Oh, this was like 8 years ago, so don't worry that you don't remember. XD My memory is terrible as well.

[stina paulin højgaard (from livejournal.com)]

Thing is in my country the copyright law is different apparently. Whenever you are the creator of an art piece, text of writing or painting or anything creative it is automatically copyrighted to me as long as it has originality.

If someone is allowed to draw my hard designed character, can't they just rip it off and sell as much as they want, selling a part of me I put on paper?

Sorry if I seem dense but I'm trying to understand the copyright laws

[taasla.livejournal.com]

Individual characters cannot be copyrighted unless they are a part of a whole. A book, a movie, etc. would allow the characters to be copyrighted. Every day fursonas and original characters are a different thing, and unless a contract is specifically signed by both the commissioner and the artist, the artist has the right to do what they wish with their commissioned work.

They are not ripping off your character; they are exercising their rights to their own work.

Generally, however, it is not considered polite to sell prints of commissions without the client's knowledge.

[stina paulin højgaard (from livejournal.com)]

I'm not talking about commissions here. I'm talking about gift art that the artist did not tell me about and then sold later as a print.

So my general question is if she can just draw my character without my knowing it and sell it of?

[shukivengeance.livejournal.com]

And you were told that the answer was yes, unless the character itself is trademarked or part of a copyrighted work.

[taasla.livejournal.com]

Legally, yes.

There is nothing protecting the design of your character unless it has been copyrighted, and copyrighting characters is difficult.

[stina paulin højgaard (from livejournal.com)]

Ahh thank you for your reply :) That was all I needed. I have a hard time understanding what copyright is really for these days.

[kerstin-orion.livejournal.com]

While it is considered disrespectful or rude by many, it is not illegal for someone to draw art of a non-trademarked character and re-sell it.

I can certainly empathize with your position; it's rather unusual to do 'gift art' of someone's character and then not tell them, then sell it as prints. It would make me a little unsettled, especially if it the content were out-of-character and they were linking the image back to my account or some such. I think at the least, I'd ask to have the link back to me removed.

Now, I have seen this sort of thing happen in a harassment context. And if that happens, I'd contact the moderators of the art site on which the image is posted.

[stina paulin højgaard (from livejournal.com)]

Ahh the print in question was sold at an art stand in her country. My friend actually made the artwork as a gift for me to cheer me up after a hard few months. And I know she would go into a rage if her character was taken and used in any way or sold of so I find it highly hypocritical from her side to sell off a picture she drew for me.

But I did kindly ask her to please ask me in the future as this character of mine is part of who I am to be honest and I put a lot of myself into it, and she told me she wouldn't sell it again.

But it's good to know where things stand legally. Thank you for your reply :)

[redregon.livejournal.com]

I want to say thank you for this!

mainly because it's refreshing to see other artists whom actually understand copyright/trademark issues.

Copyright

[bluestar20337.livejournal.com]

But the major example I've been given in classes I've taken is this:

If an author gets paid to make a work for someone else, the person who pays for making the work (for example, the author's employer) will often get to own the copyright instead of the author him/herself. For example if a person working for a company like Microsoft creates a new computer software program at work, the Microsoft company would own the copyright.

You, the commissioner are paying some one else to make a work of art for you. You are paying them to make the work for you. Therefore you hold the copyright, not the original artist, unless specifically stated when commissioning, asked at a later date, or in a public TOS.

Personally, this is the way I run things. I ask permission before using their commissioned art in portfolios, and ask when I wish to use a commission as an example piece for other commissions.

Re: Copyright

[oceandezignz.livejournal.com]

Your example is an example of "work for hire." Large corporations or other entities who want to retain all rights generally A) contractually bind you into the agreement that what you are creating for them belongs to THEM. They generally will give you portfolio rights (or credit) in the process of negotiations. B) PAY FOR THESE RIGHTS. There's a reason logos and the like usually are paid in the quadruple+ digits, to compensate for the loss of artistic rights to the work, on top of services rendered.

A furry with a pink gshep can't pay $10 or less for a piece of art and claim copyright of the body of work.

[kayla-la.livejournal.com]

I wanted to add on top of all the answers you're getting that honestly, this isn't going to come up much. You shouldn't be so worried about it.

Be pro-active instead. When commissioning someone, ask if they intend to sell prints and ask if it's okay for yours to not be included (you have to pay more to make up for lost profits). But honestly, it's true that most people aren't going to make prints of random characters and sell them. I've been commissioning art for years and it's never come up.

Also meant to add that prints of giftart is probably going to come up even less than prints of commissioned work.

[stina paulin højgaard (from livejournal.com)]

Yes after reading this thread I am definitely going to ask in the future before I pay for a commission, just to be sure :)

Thank you for your response :)