Commissioned Work of Canon Characters

[zareonianwolf.livejournal.com]

So what do you do when you've drawn fanart on commission and a third party requests permission to use the work in a tumblr theme?

A while back I did an Iron Artist challenge to fund a new computer. Of the 100 orders I filled, one person requested I draw two canon characters together instead of the more typical canon character + customized player character. So I drew the image and sent it off, got the client's approval and continued on with my work.

Now, around three months later, a third party's come to me and asked for permission to use this image in their tumblr theme, and I wasn't quite sure what the proper protocol was. Eventually I responded and told them that it was fine with me, provided my signature stayed intact and credit was given, but that they should ask for the commissioner's permission, too (since they're the person who paid for the image's creation in the first place).

Was that the proper thing to do? I know the lines around drawing fanart for pay are a bit muddled, so I thought I'd ask around for a second opinion.

Edit 6/26/14:

After reading the responses here it's clear to me that I didn't do things exactly right this time around - I should have made the commissioner's consent non-negotiable. If this does happen again in the future - and considering the amount of fan art I'm asked to draw on commission, I'm certain it will - I'll be asking the commissioner directly what they think before responding to the third party at all.

Thanks for your thoughts, A_B!

Comments

[teekchan.livejournal.com]

I would have said no. Treat it as any regular commission unless the commissioner is aware before they buy the art that others will be allowed to use it.

If I commissioned fan art, I'd want it for me, and not some random person who didn't pay for it, same as with non fanart works.

[armaina.livejournal.com]

I would say no. Someone else commissioned you with the understanding that they get to use it exclusively for personal stuff. Even if it's fandom based, it's no different than getting a commission for a generic fox or wolf, or someone's pet.

[dinogrrl.livejournal.com]

Fanart is a gray area, but I agree with the others, since it was commissioned, it's not up for grabs by other people.

[sresla.livejournal.com]

As a commissioner, if I saw fan art I commissioned in use by someone else in something like a Tumblr theme, I'd be disappointed. I understand that as a commissioner, it's not really my call to make because I don't "own" the original artwork, but it would probably keep me from doing repeat business with that artist.

It just seems like a really slippery slope between displaying it in a portfolio to letting anyone else use it however they want - although kudos to the person who asked, because there are people out there who would have used it without asking.

[tylociraptor.livejournal.com]

Honestly, I disagree with everyone else here. It's fanart, not their own characters, so they don't even have rights to THAT. As the copyright holder of the actual art, you have the right to allow use of your art, and since the commissioner holds no ownership at all, they really have no actual rights where that's concerned.

It's honestly to each their own where that's concerned. I'd probably say yes, since it means free exposure for me.

[synatri.livejournal.com]

I think it has less to do with copyright and more to do with it being a rather douchey move, considering someone paid the artist for the specific piece, whether it be fanart or original, only for them to let a third person use it for free. It's fine if the commissioner is okay with it, but it would be really awkward if they weren't. (edited for grammar, sorry!)

[zareonianwolf.livejournal.com]

I think you're right - I regret not asking the commissioner first, and if this happens again I will definitely leave it entirely up to the person who paid for the image to decide who gets to use it.

[synatri.livejournal.com]

Actually, I think what you did was all right (I'd probably do the same thing you did tbh and say something like I'm fine with it as long as the commissioner is okay with it), just pointing out to the person I replied to why it's generally not a good idea to let the third person use a piece of commissioned artwork without obtaining permission from the one who bought it in the first place. It's not really against copyright or ownership or whatever, but it does leave a sour taste for the one who bought it, y'know?

[teekchan.livejournal.com]

This. As an artist, and the copyright holder, I can technically do whatever I want with any commission, but it's a total douchebag move to do so.

[tylociraptor.livejournal.com]

I think to each their own on this one. I agree that it would be a bad move if it included a customers OC (even if the artist were within their rights), but if someone commissions me to draw Varian Wrynn and Thrall making out, and varianwrynnxthrall4ever.tumblr.com asks if they can use it for their background, I see no reason to say no, and I personally see no way in which it would be "douchey", considering it's fanart in every way, paid or unpaid.

[synatri.livejournal.com]

Honestly, it just boils down to artist-client relationships, imo? Yes, the artist can do whatever they want with the piece of art, including letting other people use it if they so choose, but if it's a commission, whether or not it's fanart, I'd respect the decision of the person who originally paid for it to be drawn. Ymmv though!

[houndofloki.livejournal.com]

I think this is just an etiquette thing. The same way it seems to be considered "good etiquette" to ask an artist's permission before reselling a real-media original you bought from them, or ask a buyer's permission to sell prints of a commission including their OC. Legally, this stuff is not required at all. It's just widely considered "good manners".

Your legal rights are your legal rights and it's totally up to you whether you want to "play nice" by fandom standards or not. But if you're seeking to continue making money within that fandom, it's probably in your better interests to do so, if that makes sense.

[armaina.livejournal.com]

If you do so, you might find out that a lot of people might be very soured at the idea of commissioning you in the future. They commissioned you for something unique for themselves to use. The expression or pose could have personal value. If you were to draw a commission of someone's pet Husky, or a generic Fox character, or some other neutral, un-changed thing, and someone asked to use it as their icon, would you be okay with that too?

[celestinaketzia.livejournal.com]

I'm not Tylo, but I find myself agreeing with their stance. Someone's personal pet is way different than two official characters or a generic animal, imo. I would care if someone was using my cat as an icon, but I don't quite agree on the seriousness for the latter.

[tylociraptor.livejournal.com]

When you use something like a pet husky, that's different and unique to them. Even a generic fox. I mean, its plain but it belongs to them. A character from an existing IP that is not unique to them (like a WoW character or GW/wildstar character etc) , they really have no claim over.

That said, I don't do fanart commissions, because it's ... not exactly a good way to get a job or keep a job in the industry, but if I did, I really wouldn't care who did what with the image!

[saniika.livejournal.com]

I got asked several times on various occasions since I do fanart commissions quite a bit - each time I said to contact the commissioner too - I see it the same way as tylociraptor.

Troublesome it would be if its like a fanart from a specific scene in fanfiction/writing the commissioner ordered this for - that is highly personal picture and it seems inappropriate to me to allow others handling the picture.

[lunar-orchids.livejournal.com]

I agree with this. If the commissioner paid for the work to be done then they should also have a say in if others can use it or not. While they don't own the original work they did pay for a unique piece to be done for their own personal enjoyment not for others. I think I'd be personally upset if I saw something I paid for used by someone else without my permission or even knowing it was going on. It would also personally hinder me from doing work with you in the future because it would shatter the trust I had for you to keep the art I commissioned personal and I'd feel still violated for not having any say in what was done.

It may also cost the original artist more business in the future because i can see others feeling that way as well. While you do own the rights to the work it is always best to keep the commissioners right as a client in mind as well. Thinking about their feelings to will always make you look better and have them recommend you to others while not will have them discouraging using you as an artist to others.

Since a lot of the art business on the fandom relies on word of mouth recommendations I really wouldn't want a sour song out there from someone over something like this.

[zareonianwolf.livejournal.com]

You're completely right. If this happens again I'll definitely leave the decision entirely up to the person who paid for the image.

Like you said, I do retain the rights to the original work, but the image was created for one person specifically, so at the end of the day they get the ultimate say in who has the right to use it or not.

Definitely something I'll keep at the forefront in my future business transactions.

[saniika.livejournal.com]

Not sure if this reply was aimed at me, but yes, that is true and I agree to that. While I said I see it the same way as tylociraptor it does not mean I would disregard the commissioner. As I said before - it is imperative for me that the person goes and asks the commissioner before doing anything.

Sadly as you mentioned you would be sad seeing something you commissioned posted/used without your permission - very often I spotted work I did used by others without being asked, or my client did not even know about it. What is the saddest part - most of such people dont even know what commission is and I needed to explain it to them... ^^;

There are all kinds of clients - I get lot which want art commissioned spread, used and enjoyed by others (fans in fandom) and even upload the high resolution file (which is a little worrying).

But once again - what I think or seem fit does not mean I would ignore my client or their ownership/rights - client comes first - always and with respect.

[jos im (from livejournal.com)]

Well i agree with the others slightly but i what you said was perfectly reasonable, if you have no problem with it but the commissioner does then makes sure the 3rd party knows this, I think the response you left was good but you may want to talk to your commissioner about this too just in case the 3rd party person uses it anyway. My only issue with your reply is that you said "should" rather then "need to" this makes it feel like an option rather then something they need to do. Sorry hope this was helpful.

[zareonianwolf.livejournal.com]

Thanks for the response!

In retrospect I think you're totally right - the consent of the commissioner should have been non-negotiable, and I regret not making that clear when I suggested the third party to contact them.

If this happens again I will definitely be more clear about this - in fact, I'd probably ask the commissioner directly before giving the third party an answer at all.

[mortymaxwell.livejournal.com]

Pretty much, everyone's already said what I feel, and that is I don't think it's cool for an artist to allow a third party to repost a commission without contacting the client first. I would be very upset if this ever happened to me, and the artist who did this to me would not get any further business from me.

I also think artists need to be careful when they tell a third party they're okay with it, but they also need to ask the client for permission. I've seen third parties take the okay from the artist as permission, and ignore the part about asking the client.

[intj-reflection.livejournal.com]

I'm probably going to be the oddest one out, in that my worry is not that you didn't speak with your commissioner first, but that you accepted money for fanwork.

Anime/manga studios rarely care and the MLP creators are well known for encouraging their fandom to go wild, but there are American studios that can and will exert their rights. (Disney is best known, but not the only one. As another example, here's a list that includes authors that disallow fanwork set in their worlds: http://fanlore.org/wiki/Professional_Author_Fanfic_Policies#Authors_Who_Discourage_Fanfic_About_Their_Work )

I've been trying to find any existing webpages referencing it, but back in the late 1990s when I was first getting into online fandoms Roddenberry Studios cracked down very firmly on fan produced work. At the time they went after anything that reflected their brand. Websites full of Star Trek fanfiction were shut down either by force or by creators who were worried about the stance held by the studio.

What came out of this was a greater spread of the typical disclaimer of not owning the characters/series being reflected in the work and that no money was made from their work...so when people START making money off of fanwork of canon characters I start to worry.

(Roddenberry Studios ended up backing off fanwork, but I was never sure if it came out of the spread of the disclaimers or just the continued proliferation of it.)

I guess I would just rather not see artists/authors I respect get caught doing paid work in the wrong fandom.

/2cents

[zareonianwolf.livejournal.com]

I totally understand where you're coming from!

This particular case is actually immersed in the Bioware fandom, and the writers and concept artists have always been very lax about the fanwork that's so prevalent in the fanbase from what I've seen.

One of the company's head writers has actually collaborated with fans on things like fan comics, so I figured this was a fairly safe fandom to operate in. Truthfully I'd rather people didn't ask for fan art quite so much, but the majority of the fan art requests I receive are fan characters set within a pre-existing universe rather than a canon character.

This is definitely something to keep in mind, though, and I thank you for bringing it up!

[intj-reflection.livejournal.com]

I definitely understand that.

Personally I think it's amazingly cool when a company will collaborate with or support their fan bases. There is so much creativity that can be developed out of an existing world when a myriad of people delve into it.

As an aside, your fanart tends to be amazing, so I'm not surprised people are interested in commissioning you for it.

...though I prefer your werewolf headcanons.

[tealmoonxiv.livejournal.com]

That was my first thought.

[celestinaketzia.livejournal.com]

I find myself agreeing with Tylociraptor on this. For me it's not a matter of "using it for free" vs. "the client paid for it". The client paid for your time, not for an exclusive piece. If it was their personal OCs (unless we're talking custom Jane/John Sheps, or Hawkes, or Wardens) I'd have a different stance, but these are fandom characters.

The person wanting to use it as a theme isn't making money off of it, so I'm not sure I'd personally tell someone no. Really, I'm just happy they asked you in the first place rather than swiping it and doing whatever they want with it uncredited, which has been my experience doing TLK fandom art.

[grinningkitten.livejournal.com]

I am late to the party and I am also a party pooper as I don't agree with the majority.

It's a dubious enough situation for anybody to be making money off of someone else's copyrighted work without giving them some of said payment (which is why I, as a commissioner, avoid fanart that exceeds cosplay). The only reason why nothing is done about it in almost all cases these days is that you and other internet artists are far too small time for someone like EA to care, since they would lose more money in lawyer fees and waste too much time for the mere pennies they'd get. Regardless, it is quite ethically unsound to profit in this way without explicit permission to do so.

It is even more ethically unsound for someone not the artist or copyright holder to make any claim of ownership over such an image. They did not draw it. They do not own the characters in question. The only thing they have done is paid for your time, but that does not give them any rights over it snf a commissioner's rights are little enough as it is.

If someone is intending on using this as a theme and will not be profiting from this, but you are okay with your art being used, it is not a particularly bad move to not inform the original commissioner. It is, perhaos, in your best interest purely from a business perspective to show that you will go above and beyond what is required, but it's no sweat if you choose not to, as, remember, your own rights to the image are questionable just of themselves since a profit was struck and it is even worse for the commissioner. Be s good communicator, but do not think you are terrible if not.

This is why I avoid anything past cosplay and why it is best to avoid fanart commissions. Copyright with regards to art is not something of which you want the rights to leave either hand and enter anything past white morality. Once you enter grey territory, it is too murky to be comfortable and it's why I know one big name FA commissioner who has removed any art involving a copyrighted character they did not seek permission for as it made them look like a hypocrite.

Artists beware; it's too grey in there.