Advice needed for selling prints!

[roxyfur.livejournal.com]

Hey guys! I have a question regarding selling prints of artwork I have done, but as commissions.

Is it legal for me to do this? And is this commonly done? Does this look bad on me as an artist? I haven't ever sold prints before, so I really have no idea. I haven't sold the customer the copyright to the image, just charged them for rendering the image like is typically done. Some of my commission pieces I would like to sell as prints at a future con because they turned out really well.

(I would obviously ask the commissioner if it's okay with them, since it's their fursona in the picture.)

Thanks!

Comments

[fawkatronic.livejournal.com]

You own the art but you do not own the character involved in the art.

So I feel like it's not legal. You may have drawn it, but you don't have license to sell prints without getting usage rights of the character first.

Try contacting the character owners to see if they are okay with it.

[oceandezignz.livejournal.com]

If the character isn't trademarked, or if the rights to the image itself were not initially given away or sold, there's no reason to talk "Usage Rights".

The copyright of the artist is what counts.

But as its already been established, its good to either ask or have a TOS that outlines that prints of commissioned work may happen.

[fawkatronic.livejournal.com]

Unless they state in their ToS that you give them rights to sell prints when you commission them, they must obtain usage rights to create and sell prints that involve that character.

You cannot redistribute the intellectual property (character design) of someone else without proper permissions obtained.

[neolucky.livejournal.com]

Yes, actually you can. The artist retains all rights to the artwork created, when the character is not trademarked. This includes reproduction rights. The characters owner must have a licensed trademark over their design in order to trump that.

The customers must purchase exclusive rights from the artist, in order to prevent the artist from reproduction. The owner retains copyright over the design, but not the ability to reproduce it from an artist who's paid to draw it.

This is discussed quite in-depth under our copyright tag, if you'd care to read up and see the source for these laws and rights.

Edit - Found the page for ya, since it takes a bit of digging. Right here is the law surrounding it: http://www.copyright.gov/title17/92chap2.html

[fawkatronic.livejournal.com]

according to that link:
"Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.""

It states that the person who commissioned the work to be done is the true copyright holder. So selling prints of work someone commissioned you to make would be illegal regardless.

[wolf-goat.livejournal.com]

Work For Hire is something different.

http://en.wikipedia.org/wiki/Work_for_hire

"A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation"

E.g. if I worked for Blizzard Entertainment drawing World of Warcraft characters I would be an employee creating things as part of my job and Blizzard would own the copyright.

Note the "all parties agreeing in writing to the WFH designation" part.

[fawkatronic.livejournal.com]

"or work created on behalf of a client"
I think that covers someone commissioning art to be made.

[wolf-goat.livejournal.com]

You are ignoring the link I provided and the last sentence of my previous comment.

[fawkatronic.livejournal.com]

I understand, and already stated, that if someone has in their ToS that they retain all copyrights, including the right to sell prints, that it means just that. Because the commissioner is agreeing to it when they commission the artist.

I am talking about situations where the artist does not have such in their ToS.

[neolucky.livejournal.com]

You are confusing FREELANCE and WORK FOR HIRE, which are two entirely different subjects. Freelance is more under the custom work category, where as work for hire is industry (generally speaking), both use a different subset of laws to determine where the copyright goes.

Copyright automatically falls to the artist, not the author in this circumstance, in a freelance custom piece - which is what you are describing. An artists TOS doesn't always trump the law either. A tos can also say silly things like "I don't ever have to give you a refund!" and just because the customer agrees to it, does not mean it will hold up legally.

Note: Unless there is a signed document/contract stating there is an agreement between artist and customer, there isn't really any agreement at all. Simply HAVING a TOS does not save an artist, as the customer may not even know it exists. There has to be some sort of actual "agreement" in place, for the TOS to even matter.

An artist has natural given rights, ownership of reproduction and copyright of the created image is one of those. It is up to the client to purchase those rights - not the other way around.

[roxyfur.livejournal.com]

Thanks for all of your detailed info here. Now if I get anyone else arguing on my journal announcement about my TOS change, I can link them to the correct places haha. :]

[neolucky.livejournal.com]

This may explain it a little better and clear up your confusion. This explains the difference between freelance (Independent Contractor) and Work For Hire.

http://www.wendel.com/index.cfm?fuseaction=content.contentDetail&ID=9414

They are vastly different.

[enter-data-here.livejournal.com]

Thank you for this link. "That said, a business may still be able to use a work created by a contractor, even if the business does not own the copyright in the work, under the theory that there is an implied license granted from the contractor to the business. "

OT, bu, in the case of my relative in the advice post I made a while ago, I'm glad to see that I've got the same reading comprehension skills as a lawyer, lol.

[tealmoonxiv.livejournal.com]

It doesn't matter if the artists states in their TOS that they have the image's copyright.
They automatically have it unless the commissioner buys the rights or it's work for hire.

[neolucky.livejournal.com]

Unless that commissioner is a company, trademarked, or has their designs licensed in some media like say... a game, a book, a movie.

No, it does not cover basic commissions. Those are freelance.

[celestinaketzia.livejournal.com]

It doesn't. Its also not up to the client to decide if their character meets copyright requirements. They can take it to court to argue it. And also by default clients are giving copyright permission to make derivative work of their character, so unless they negotiate prints before hand tye artist has rights by default.

[(Anonymous)]

"or a work created on behalf of a client where all parties agree in writing"

Only if a contract is signed by BOTH the commissioner and artist.
SO no, it does not cover someone commissioning art to be made.

Don't take the sentence out of context.

[vellacraptor.livejournal.com]

"or a work created on behalf of a client where all parties agree in writing"

Only if a contract is signed by BOTH the commissioner and artist.
SO no, it does not cover someone commissioning art to be made.

Don't take the sentence out of context.

[aeto.livejournal.com]

I don't understand why trademark keeps coming into this discussion. To me, this looks like a very clear case of derivative works, which has nothing to do with trademark law.

From the very link you posted:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

How is a piece drawn based on the works in a copyrighted reference sheet anything other than an "elaboration" of that work? That, in and of itself, makes the work a derivative work, and nothing in that law requires anything to do with trademark. It's also not "work for hire" (which I agree also has nothing to do with this discussion, as it's a really high bar to reach "work for hire" and isn't likely it ever really comes up in personal commissions).

When I used to run conventions, we had to turn away artists entries to art shows more than once whose are was clearly derivative of commercial works. It didn't matter if there was a trademark associated with that work or not, if it's clearly derived from some other piece of work, it's a no-go.

[tealmoonxiv.livejournal.com]

Unless your character is trademarked then this isn't true.