Profit from a character design - any advice?

[invertedroum.livejournal.com]

Hey guys, first and foremost, I hope that I'm posting this in the right way; I haven't used AB much so please let me know if I need to change anything!

That said... I was looking for some advice on a problem, and some friends suggested that I try asking around here. I don't want to list any names yet, as I'd like to contact the individual in question first, but I'm not sure how to go about doing it.

So the issue is this: someone who purchased one of my adoptables in the past is now auctioning off a "date" with this character. It seems whoever wins the auction, gets to be featured in a picture with this character, and gets to choose the artist and details for the commission. Now, I would be okay if it was just the person who won the auction paying for the commission, but instead it looks as though the owner of this adoptable is attempting to make a profit off of this, which I have to be honest... I am not okay with.

Any suggestions on how I can handle this? I want to be civil, but I also want to be clear that I am not alright with people making money off of my designs. I kind of thought that it would be common sense/courtesy not to do so, but apparently I was wrong. So in the future I will be adding a T.O.S. to my adoptables, but for now I'm just trying to figure out how to handle this situation in the best way possible.

EDIT: Thank you to everyone for the advice and input, honestly I did not expect to get this many responses, and at this point I am just overwhelmed and I guess come to the conclusion that there is nothing that I can do. At this time I have decided to just be done with adoptables.

Comments

[neolucky.livejournal.com]

I actually stumbled across this today, so I know exactly who you are talking about. And...I would contact them immediately, and tell them you are absolutely not okay with this auction.

This customer has a habit of being unsavory with adoptables they have bought. (Or tried to buy)

Definitely add to your TOS. If they do not take down this auction, contact FA with a trouble ticket and get the art removed, as you still retain all rights to that art regardless of who "bought" the adoptable or not. If she doesn't remove it, feel free to make a beware.

[catbrooks.livejournal.com]

Maybe it's just me but I feel like trying to keep control of a character design you sold is kind of a bad practice anyway. It's different from them using your art to make a profit because the thing being paid for is a completely new picture not drawn by you.

[thecreativepen.livejournal.com]

From my understanding, the individual is profiting off of the auction partially. I can imagine that what money that is leftover after the commission will be staying in the individual's pocket.

[thecreativepen.livejournal.com]

I don't fully understand adoptables, so please feel free to correct me if I'm wrong.

I thought when it came to adoptables, you are essentially selling a character design to someone, and you just retain ownership of the original art you auctioned off. Is that correct?

Is that something you've specified in your TOS? Because if it's not there, I'm not entirely sure if there's much you can do, minus asking the person to cancel the auction and reporting it.

[neolucky.livejournal.com]

Adoptables are a strange sort of thing. The customers are not buying a character, they are buying the "idea" that they own the character. They are basically being given limited usage in getting art of said character. But in no way do they solidly own rights to that design, and should an artist wish to, they could revoke that permission at any time. This is why so much conflict comes about.

This is why I am not a fan of adoptables, and more a fan of freelance character design, contract and all. That way rights are bought, and there's none of this wishy-washy "who owns what" stuff.

[waffelle.livejournal.com]

This is all sorta grey area, which makes it messy, but I don't actually agree that you should be able to decide how they use a design they bought from you when those rules weren't in place from the start.
If I bought an adoptable, I'd expect that I was buying the design to use with as I please, not buying the idea that something is mine.

If it bothers you, it's definitely a good idea to update your TOS and let people decide if that's what they want to buy. I don't think it's fair to specify later, though.

ETA: This is assuming you were selling them with the implication that the design IS theirs to use, of course. If you were clear that they were just buying the rights to play around with an idea, then that's a bit different.
I can't imagine anyone actually buying that though!

[houndofloki.livejournal.com]

I'll admit right off the bat that I'm not all that familiar with adoptables, so if I'm wrong here just put me in my place or something!

It was my understanding that people who are selling character designs are SELLING them. I assumed the artist controlled whether or not the buyer can make any profit off their actual art, i.e whatever reference sheet or image the artist originally did of the character. But the design itself now belongs to them - and if they want to commission pictures of it. put it in porn, auction off the opportunity to bang it, whatever...well, it's theirs now, right?

If the seller still controls what can be done with the character, I'm not sure what someone who buys an adoptable is even getting?

Maybe I'm just confused on this; I've never bought or sold an adoptable.

[sigilgoat.livejournal.com]

Someone reselling one of my adoptables is what led me to stop selling them, and only do higher-priced character design stuff in the future where I'm compensated enough that I don't feel bothered if someone eventually does whatever with the character.

Since you don't have anything in your TOS about this stuff, I would say that you shouldn't pursue anything too extreme about this situation, but you can let the buyer know that you don't authorize the use of your art as advertisement for their auctions, which you can do. If they refuse, you can have that art removed, but as far as the auction goes, they're within their expected rights in the "adoptable mindset" I guess.

It sucks to have to learn this stuff the hard way though, right?

[wuvvumsoc.livejournal.com]

I find adoptables to be kind of confusing from a selling standpoint, which is one of the reasons I made all of mine free.

Adoptables seem to work off of an honor system I guess. You can't really own certain aspects of adoptables and call them your own but those who don't really play with the unwritten rules around adoptables likely get flak. That's my guess, at least.

[ocelotish]

What is the adoptable buyer buying?

Although I don't understand adoptables, it seems to me that they're buying the design. That's the only thing that makes sense. If it's buying the right to use that design, that needs to be explicitly stated especially when there are limitations. The fact that your auctions say that you can change the design also suggest that they're buying the design, not just the rights to use it.

To be honest, this reminds me of those cases where someone resells an original for a profit. Once it's sold it's not yours to control. This is even more so in the case of characters! I don't understand FA's obsession with characters, but obviously the adoptable buyer has promoted the character enough to have people interested in paying for a date. That's their effort coupled with the design they purchased.

You definitely can't add a TOS after the fact. That's always bad business.

[shukivengeance.livejournal.com]

You sold the character so they should be able to do what they like with it, as long as your copyright to the original image they're depicted in isn't infringed on.

[roocodendron.livejournal.com]

This!

I've sold adoptables before and when a person buys 'em they can do whatever they want with the design, which includes using it like this. I don't allow people to resell for more than they paid unless there's additional art, either way a note asking is always appreciated.

And I'd be pretty steamed if an artist I bought an adopt off of suddenly yanked it out of my grasp because they didn't agree with whatever I was doing with it sans reselling for a higher price (I don't resell anyways so). I know some people like to hoard massive amounts of adoptables and do literally nothing with them, but others like me develop them as soon as money exchanges hands. It'd be, well, heartbreaking.

[aerotheacrobat.livejournal.com]

I personally have a clause that says that they can do what they want with the character, but not my art. My art becomes a commission of said character after the transaction. No idea who this is doing this, so not sure if they're using your art or not. If they are, you're well within your rights to ask them not to do that. If it's their own art, that's their right to do so. Most buy and sell adopts with the thought that the character itself is the buyers and they can do what they want with the character, just not the original art.

That said, I have seen someone take a free raffle and make money off the free art/character with a "win a date" auction. The winner paying well over the artist picked would charge. That struck me as kind of a sleezy act. So, I do know where you're coming from on this subject. You might want to make a very clear TOS for your next adoptable about what you do and don't allow.

[silvertales.livejournal.com]

I will fully admit that I don't understand the phenomenon of adoptables, so, please correct me if I've misunderstood. If the buyer isn't getting the rights to the *design* and *concept* (not the art) then what's the difference in just buying a "print" of something they really like? This is why I find commissioned/licensed character design to be far more straightforward.

However, all that said, if there wasn't anything in your TOS about not making money/using the design concept in any way a buyer sees fit when the buyer bought it, I don't think there is anything you *can* do. You can express your displeasure to the original buyer, but they are in no way obligated to do anything about it. It's an unfortunate lesson to learn the hard way.

If you end up putting something in your TOS as a result, I really don't see how it becomes any different than a commission.

[ethelune.livejournal.com]

Most people who I've seen selling adoptables seem mostly adverse to the buyer making a profit off the piece they drew of the character (e.g., buying an adoptable for $10 and immediately turning around and reselling it for $15). When you start considering other ways to make a profit, the line gets a little more fuzzy. Even so, I have to agree with what folks (especially sableantelope) are saying; if you're selling a character design, you should be willing to let the owner do as they wish with it. Otherwise, what's the point of buying the design in the first place?

It might be frustrating (especially given the customer you're discussing, who isn't exactly a shining paragon of integrity), but I don't really think you can do much in this case.

[chronidu.livejournal.com]

I think the big issue here is that they're using her actual art for the auction, thus using her art to make profit, as apposed to just a design she sold.

[chronidu.livejournal.com]

The problem here is that what people don't understand is that selling an adoptable without any rights changing hands is just essentially selling the use of the character.

That in itself brings up a whole giant can of legal worms.
I think Sigil is right in that since the TOS didn't state otherwise prior, there isn't much to be done on the matter outside of perhaps a polite request that they not use the character for profit.

Although I don't think people understand that the person profiting off the adopt is using your actual art, and that is not okay even if they bought the character. The art belongs to you and legally they cannot use it for profit as they are doing. That said you are completely within the right as things stand to request that they not use your picture for the auction at the very least.

[ocelotish]

I'm not sure I agree with this.

If we remove the adoptable element for a second, we have a person with a character that gets art done of that character with the ability to display it on FA and etc.

If that person uses a piece of art from a commission to promote a "date with my character" even for profit, is that really misuse of the artwork? They're not selling the artwork, copying it, or posting it somewhere where they lack permission. You get into sketchy territory when we're discussing a trademark or a logo, but that doesn't seem to be the case.

Would they be able to use said artwork if they were reselling the character? If so, how is this any different?

It's a complicated question. They're not strictly using the art for profit, but they're not using it not-for-profit either.

[tealmoonxiv.livejournal.com]

When I sell a character I'm selling the character (and it's rights). They can do whatever they want to/with it.

Lately though I've been selling character "packages" where you get the character (and the rights to it) and some art to go with it.

I'm gonna add this to my TOS so there's no confusion though.

[vioskotty.livejournal.com]

Forgive me if this is obvious and I'm just missing it!
I may not be able to check back soon, but I'm confused. You say it seems as though they're trying too profit off of this, how so exactly? I'm not sure I'm understanding all to well with this.

I would say more but I feel like I can't because I'm stuck at how this is all going down :c Whatever the case, since adoptables seem to be taken in so many different ways without rules being set out a TOS for the future is a very good idea. Different people can have different ideas so unless the artist/seller says specifically what's being bought nobody can be sure. I myself, though I don't participate in doing so, always figured it was selling of the character in its entirety unless otherwise stated by the artist but I'll do well to remember not to assume so after reading some of the above comments.
(grkdjf typo whoops)

[ethelune.livejournal.com]

That's... an interesting question, actually.

I think some people were assuming, say, if someone wins with a $70 bid but only wants a commission from an artist worth $60, then the adoptable buyer would pocket the extra $10. Yet, I've seen comments from them stating that the auction winner would send money directly to the artist... so I don't see how a profit could be made, if that's true?

[timelapsedecay.livejournal.com]

What a compelling question. I'm kind of torn.

Which were you selling to this person: the character, or the use of the character? You may have drawn the first version of this character, but is it outlined in your Terms of Service what the appropriate usage of your designs is?

IMO, you should make your feelings known about this, but I'm not quite sure I can say what the seller is doing is wrong.

I've been in similar situations as this myself, and after reflecting on what the design actually meant to me, I decided to excuse it. I got proper compensation for the design already, and the character now belongs to them, so I let it go.
It would be different if they were selling art you actually drew- THAT you still have the rights to. But if you sold the character, you sold the right to use that character, and the new owner will use it how they see fit.

I don't want to say you're out of luck. Maybe your client will be sympathetic to your feelings. But if you sold them the rights already, and they're not modifying your art in any way, well... you may just be out of luck :c

[thaily.livejournal.com]

You sold the character without a limitation on this, but now you want to put a limitation on it after the transaction has been concluded? I think you might have to suck it up this time around and do things differently the next.

[tartii.livejournal.com]

So this is what I am reading, I want to make sure I am understanding completely:

You sold off a character to somebody. That person now owns the character. Then the new owner decides he wants to auction a picture WITH said character on a sort of 'date' theme, and because the new owner may come out with cash in this situation it angers/frustrates you?

If this is the case, I'm sorry to tell you but that is business. :c

When you sell a character you are doing just that, SELLING the character. Design and all, including the rights to said character (unless specifically stated in your submission.) Whoever wins that character has any and all rights to it. The only thing they do not have full rights to is the artwork itself that you made of it. So really, there is nothing you can do in this case....and I don't see why you should be upset?

When I do character auctions I flat out state what the person gets, as how it works for most character auctions:
1. Full rights to the /character/ and not artwork
2. They can change whatever they want to the character
3. Get fullrez file of the image of the character

Because you are selling off a design to something the person is buying the rights, not just.....'display rights.'

I also let people sell my designs after they buy them, because it is THEIRS now. However, some artists will state in their adoptables that "if you sell this design it must be of equal or lesser value." Or they just don't allow selling at all.

What this person is doing is just being clever in business, no harm done that I can see....aside from the fact that you are upset somebody is getting more money out of it than you did, maybe?

[lackoflollies.livejournal.com]

^ Pretty much how I feel about it

[ethelune.livejournal.com]

Where do you get the impression that the adoptable buyer intends to make a profit with the auction? As I noted above, the person in question has stated in comments that the winner of the auction will send the funds directly to the artist they choose to commission. It's a side note, really, since the real issue at hand is what kinds of rights are attached to adoptables... but I can't help wondering if knowing that helps alleviate your concerns?

Edited for clarity.

[oceandezignz.livejournal.com]

All things aside, I just gotta say these auctions of "get a date with x" under the guise of getting someone random to pay out on a commission FOR you really annoys me on some level.

[vioskotty.livejournal.com]

I'll have to agree on that...gives me a bit of an ew feeling. Even more so if it's done repeatedly.

[mazz.livejournal.com]

Since it was not in your TOS before you sold the character there is really NOTHING you can do... you sold the rights to the character when you sold the adoptable and they can do whatever they want with it unless otherwise stated in your TOS beforehand.

It does sound more like the person is having the auction to get someone else to pay for their commission over trying to make a profit.
--

I have only purchased one adoptable and I have all right to do whatever the hell I want with the character except re-sell it for a profit.
So if I were to auction off sex pictures with it I'd be totally free too because it was not in the artists TOS saying I couldn't, just "do not sell the character for profit"

[morti-macabre.livejournal.com]

Why is it bothering you that they're auctioning art for a character that you may have designed, but they now own?
If they're making a WHOLE NEW piece of art but with a character that they legally bought from you, what is the problem?

That seems... ludicrous to me, as both an artist and as a 3rd party.


This is why I hate adoptables. The way I see them working, is you buy the character/design, all rights to it, and the original piece of art in which the character is designed is now basically a commission.

I would NEVER go after a customer for making whole new pieces with the character. That sounds money grubby, IMO. And a bad case of seller's remorse, to be blunt.

And while I don't agree with reselling for profit personally, tough titty to that, too. They bought it, they can do what they want with it.

Just my feelings about it. I know the legal implications are much more complex. xD

[crimson-flygon.livejournal.com]

I have not read all the comments yet, but let me state right now that you cannot copyright a character design. What an artist has copyright to is everything they create.

When you sell "the design" of an adoptable, the person purchasing it technically didn't need to buy it in the first place to make something new with that design as long as they were the one that creates it, and the artist isn't really selling anything besides an idea and perhaps in the case of adoptables the use of a reference sheet. If right now I went out and found an adoptable I liked, and created a character that was identical I could arguably legally be in the clear. Now while someone could be legally clear doing this, the reason everyone frowns on "stealing someone's design" is because it's ethically not very nice or squeaky clean practice to do.

Now with all that being said, I don't think you have any legal standing (or perhaps even ethical at this point) to tell someone that purchased a "character design" what they can or cannot do with it, especially if you did not have a TOS regarding it beforehand. Honestly even if it was in a TOS that someone couldn't make porn or money off of a character or what have you, it's more of a request or a suggestion in this case because they legally could still do it because you can't have copyright on a character design, it *would* be unethical to go against the artist's wishes in that case of course.

Technically nothing is really being sold in the first place with adoptables besides the use of a reference image which is why the whole phenomenon is quite amazing. One has to wonder though, if people aren't being sold the right to use the character how they wish what exactly are they buying?

This is all going into the realm of intellectual property though which is a huge grey area because licenses and fair use are not a black and white issue. Understanding that we don't own copyrights on character designs is the first step to dealing with it though.

[vaekke.livejournal.com]

I remember learning that character designs are sort of protected because if you draw the same character, it's a derivative work of whichever the picture was where the character first appeared? And with like, studios they buy all the rights to whatever images the concept artists make and thus own all "character rights" too?

So for selling personal characters, couldn't it be described as selling partial rights to the image, specifically the right to make derivatives through use of the design of the depicted character? Essentially owning the character as much as the artist otherwise would, but without being able to reproduce the original image of the character or anything. Sort of like how Creative Commons is a way for creators to release certain rights to the general public but keep others? Even if I'm onto something though, it still becomes fuzzy when you think about things like revamping the character.

I dunno, it's been a while since I've actually tried to read about this so I might be off-base entirely.

[radiocatastrophe (from livejournal.com)]

This topic actually put an idea in my head. It's somewhat on/off topic. Currently myself and my boyfriend are in a bit of a tight spot and we can't pay rent, would it be sleezy of me to ask an artists to participate in an YCH auction featuring my character and I keep what I need to make rent and pay them with the rest?

[neolucky.livejournal.com]

If the artist agrees to the terms and doesn't mind, I don't see it as a problem.

[teahound.livejournal.com]

I dunno, I always saw adoptables as pretty cut and dry. If you don't want something done with it, put it in the description - or even make a clause in your TOS before selling any, that X, Y and Z are not okay to do upon purchasing an adoptable from you. Link the TOS in the description and you're set.

Anything else is honestly skeevy on the artist's side (in general, not pointing at the OP), because to not have any guidelines ahead of time and start enforcing them after the fact is misrepresentation of what they're purchasing. I always figured the implication that the rights to the character went with it, just not the rights to the original piece itself beyond the usual 'post to [art site] with credit, etc.' - again, the implication of what you're selling and what you're actually selling should be one and the same. A character, and the rights to do what you want with it, unless the artist spelled out ahead of time what is and isn't okay.

It's honestly pretty simple IMO. If you wanna do adoptables, think about what you are and are not okay with in regards to the character's use, and be sure that information is represented clearly. In regards to the OP - if you didn't have this spelled out, I don't think you have much to stand on from a legal standpoint. You can always ask them not to do this, but ultimately aside from the murky rights arguments listed here, were something like this to get to court it could easily go either way. *shrug*

(frozen) Re: excuse me

[neolucky.livejournal.com]

You've been warned before - please stop outing yourself in these posts. You were never mentioned, this is not a beware. This is an advice post only.

This is your second warning.