My own drawing was sold and I didn't get anything from it

[kurama chan desenhista]

WHO: CheshireKenny
WHERE: DeviantART
WHAT: My own drawing was sold and I didn't get anything from it
WHEN: Since 2013 May

At first, my intention was to make a journal where the responsible person would remain anonymous. It was in June. It didn't get accepted by the administrators, and I received the advice of making a second journal just if I had the intention of mentioning names. I was a bit scared, since it's the first time a situation like that happens in my life, but I also felt that I couldn't keep silent about this anymore.
I decided waiting a bit more of time, hoping that I could solve things alone. Unfortunately, I couldn't. And that's the reason I decided to make this second entry.This time, I also made screenshots of everything I could.

Update (07/19/2013): I just checked my e-mail now and I saw a Paypal payment from CheshireKenny. After months, I finally got my part of the money, probably thanks to this journal. I appreciate all the help and feedback received here, thanks a lot.
If any administrator feels the need to delete this entry, please feel free to do so.



So, let's go back to the beginning.
CheshireKenny noted me in DeviantART asking if I would let him sell one of my drawings as an adoptable, giving me personal reasons to do so.
For some reason, I was a bit naive and I let him sell it, with one condition: He would give 50% of the money of the "adoptable" he sold.



http://cheshirekenny.deviantart.com/art/Dragon-boy-Auction-closed-369284037
I took a screenshot of the auction, where he clearly states this in the description, in case he deletes it


And then he sold it for $10 dollars. Actually, he didn't tell me he sold, I had to go on the page and check myself.
Waiting for contact, with no reply, I sent him a note telling my Paypal adress.
But instead of receiving my payment, I just received lost of personal excuses.
I removed the screenshots about the personal excuses I received because a moderator though it would be better to leave them out of the post, since the most important part aren't the excuses, but that an agreement was made and I still didn't receive my payment.

I also tried contacting the buyer, but I'm afraid there is nothing we could do.
http://sta.sh/0s0j4jbqtjy

The week passed, and nothing.
After more weeks. I sent a note again asking when he would pay me. And as I suspected, I got more and more excuses. And they became even more dramatic, for my surprise.

After another month, today, I made a public comment in one of his/her journals, to check if he
would hide it. And I actually got rude replies from it.
http://cheshirekenny.deviantart.com/journal/RAFFLE-RAFFFLE-RAFFLE-383522000#comments
In case the comments are hidden: http://sta.sh/01t39sf56hlf

I know this is partially my fault, I shouldn't have trust someone I barely know, I should have sold the drawing myself and then later gave him half of the money.
I wonder if this person meets the requirement to be in Artists Beware site, because I noticed that he doesn't have a single drawing in his gallery that was made by him. He is selling others people art, just like mine. And probably they are falling for his trick and letting them to guilty trip them, exactly like he did with me.

I'm just lucky he didn't sell my adoptable for a high value (as far as I know). But at the same time I'm scared he might steal much more money from other artists.

I also think it's important to state that the copyright of the drawing is still mine. I'm really sorry for the buyer, but I can't consider this transaction valid until I receive my money. And it'll probably never be valid, because I don't have hope that I'll be paid anymore.

Comments

[onesteptwo.livejournal.com]

I know there's some sort of first sale law or something where you can resell a piece of artwork you own. Not sure if that applies to digital works so maybe someone else does?

And they are right about the commercial usage. Commercial is when they'd be getting money over and over for it.

[ljmydayaway.livejournal.com]

As far as I know, unless there's been a new law passed very recently, the first sale law in the US does not include digital works (i.e. Steam games, digitally downloaded software, etc.).

[onesteptwo.livejournal.com]

That would totally make sense as far as games go since you could claim you deleted the first copy and never did.

[celestinaketzia.livejournal.com]

I also think it's important to state that the copyright of the drawing is still mine.

So long as you do not explicitly sign your rights to the art away, then the copyright to the art will always be yours. All the buyer was purchasing was the design depicted in the art and the right to use the design. And that's all you should ever sell when doing adopts or allowing others to sell adopts using your art. Your rights are worth more than a mere $5.

In this case I am not sure what you can do that wouldn't hurt the buyer, whom has paid for the design already. You could issue a DMCA against DeviantART and have the image pulled until you're paid, but it really wouldn't help here as this person has already been paid.

I'm really sorry there isn't much advice, but at least we know to avoid this person and any designs they'll sell in the future.

[kurama chan desenhista (from livejournal.com)]

Thanks for the feedback.

This was indeed my intention. I honestly don't have hope I'll be paid anymore, but at least I wished to warn about this person and what happened to me.

[kytheraen.livejournal.com]

It bothers me when it's such a small amount of money, people shrug it off. It's not that it's only five bucks, sure you could live without it, but it's the fact that they're not paying up that's the problem. Grr.

[celestinaketzia.livejournal.com]

I agree with this to an extent. The Seller has the rights to the design and may sell the design so long as the OP didn't put a stipulation on what happens to the design. (Like a no-sale contract or something, which I have signed for adoptables before.)

Both the Seller and the OP appear to have an agreement that the rights to the image are also being sold, so I am assuming that's what the OP is wanting compensation for?

[kurama chan desenhista (from livejournal.com)]

I created the design of the character, I drew it myself and just allowed the person to make personal use of it, nothing else.
After some years, I received this note (from the screenshot)about selling the drawing I made, and well, I just allowed it because of the poverty claims and everything else. And because I though I could trust this person, that's why I made the 50-50 deal.

The problem is that I put a stipulation that wasn't fulfilled in the end.

[kurama chan desenhista (from livejournal.com)]

Actually, I wouldn't classify what I did as an adoptable. The one who decided to sell my drawing and classify it as an "adoptable" was CheshireKenny, not me. I never stated I gave the design away to someone. And I never gave totally the rights of the drawing to this person. As far as I know, I'm still protected by copyright because I own the rights of something I drew.

[kurama chan desenhista (from livejournal.com)]

No. I made the design for use inside a medieval RPG group in DeviantART that I was the co-founder, nothing else. I never allowed her to freely do what she wanted with my design.

It's different from my commissions, that I indeed give the buyers the design for personal use. And they pay for it, it's their right.

[kurama chan desenhista (from livejournal.com)]

Well, I though I was very clear. Since I said the basic: "A person asked if he could sell my drawing. Pitying her, I allowed, but made an agreement of sharing the sales with me. And then she broke the agreement."

That's the reason I regret letting her sell it just because I though she was in a bad situation. If I sold it myself, I would honor my word and give the 50% I promised. At least it served for me to learn and don't fall in tricks like that.

[kurama chan desenhista (from livejournal.com)]

In that time, I was helping doing the designs for the RPG group for the people that couldn't draw, so they could have a profile to play. It seems like she misunderstood that I gave the total rights for her. Well, you'll never found I stating in any place that I did it. And I didn't feel the need to correct her, since I never though it would cause this trouble.

[kurama chan desenhista (from livejournal.com)]

Oh, I see, I apologize if I wasn't very clear about this.
I also would like to inform that last night, I checked my e-mail and I saw a Paypal payment on it. So for my relief, I think this subject is finally closed.

[kayla-la.livejournal.com]

We don't delete posts here (you may want to consider reading our user info for our rules if you're going to participate in the comm) but we do mark them as resolved, which I've done for you.

[-puu yui- (from livejournal.com)]

Just to ask, because this is something soo hard to believe, and i need to know.
When you sell something that is classified for personal use by the artist, the buyer have the rights to sell it? At least, when i buy some crochet graphics, I can't sell it when the artist forbides me. I think it's the same case.
It's a illustration, given the credits, but it was a picture to a group that don't exist anymore, so when it was put to an auction, the buyer is using it to get money, and it leaves a opening for the artist to ask some compensation.
I don´t know if i'm putting it in the right words, but i hope you can understand.

[-puu yui- (from livejournal.com)]

Yes, graphics.
And, no, you can't sell it. You can tell where you bought, but you can´t sell the iten done with the graphic or the graphic itself.

It's a right not writed, but some pattern makers specific that.

[nakoothetauren.livejournal.com]

Nether can you sell items made from that pattern.
I have a feeling that information is contributing to this discussion. >_>'

[celestinaketzia.livejournal.com]

With physical items, yes. I can get a painting tomorrow, put it on my wall, and it's for personal use. I can sell that painting, but I never owned the rights to it. Digital items are a little bit of tricky business, because the right of first sale doesn't apply to them. There is no physical form for them, and making copies to sell via prints is a violation of the copyright unless the artist says so.

Someone can crochet you something and you have every right to sell that piece.

In this case the design and art was made for the group. They are within their rights to sell it, but I don't believe many folks understand that the right to the design and the rights to the art are two different things.**

The artist states that she never gave away the rights to the design nor the art, so she is within her rights to ask compensation.

** To clarify this, I actually own an adoptable in which I am allowed only personal usage. The design is not fully mine. If I attempt to profit using the design, the artist has the right to seek compensation. I knew this going into the contract, and I am okay with it. The only way the design is mine is if she and I agree the design is different enough from hers to stand on its own.

[-puu yui- (from livejournal.com)]

This is what i'm talking about.
Just because you bought a personal use of a pattern, that doesn't mean that i can sell/have a profit with something i didn't create. I did the handwork, mas the rights to the pattern are the autor's. Well, all of them always says that they don't give the rights to sell it, just for a personal use, wich includes you doing the item and gifting it. In my conception, personal use is something that don´t gives any kind of profit. I don´t know if this can be the same case with digital ilustrations, but it makes sense, if you think about. Unless you make a deal about buying the rights to use personaly AND commercial use.
There isn't a statement talking about "personal" and "commercial" use for digital illustrations?

[celestinaketzia.livejournal.com]

Yes, the artist has to write out what commercial rights they're giving a client before they may do anything with the art. Otherwise it's all personal.

[-puu yui- (from livejournal.com)]

And for personal, that includes gaining a profit with it? If not, what is the point of that? o_o

And if it is "not", well, i think Kurama have her rights in asking for some compesation. =)

[neolucky.livejournal.com]

She shouldn't need to ask as there was a prior agreement that she'd receive %50 of the profits anyway. This beware really is mostly about the lack of paying her what was agreed to I believe.

[wuvvumsoc.livejournal.com]

I find reselling adoptables without permission or a TOS granting it to be seedy as hell, especially if they profit on it. Part of me wonders if anyone is reselling my adoptables (since I gave away all of them for free).

[pandacat-magic.livejournal.com]

I've caught someone doing that to my own adopts I was selling :\ even though silly me, I didn't have a TOS because I assumed that people would be not shady about it? Or at least note me about reselling.

[wuvvumsoc.livejournal.com]

I guess the idea is if they gave money to it then they're entitled to sell it again? I dunno. I don't get the logic of why someone would think it's okay to sell an artist's idea without their permission.

[thaily.livejournal.com]

"You realize no one will care about you being owed 5 dollars"

Yes. Yes we do.
Also because they apparently do this over and over, which will add up. Ugh, so scummy >:|