ADVICE: TOS ISSUES

[rai-say.livejournal.com]

I need some advice as I've run into a bit of a pickle.

I've been in a bit of a financial emergency (this isn't overly relevant, just kind of the set up as to the "why") and so I've been selling old characters/adopts that I purchased.

Now, I don't have a lot of watchers. I've gotten very little traffic, so anything I could sell, I have been- and in most instances, the original artists have their TOS posted where I can easily find it and double-check if it's okay for the character/adopt to be resold.

The issue I'm having (and that I need advice on) is this- I recently sold an adopt by an artist who does not have their TOS (for adopts or even regular commissions) posted anywhere. I checked both their DA and their FA account, and it's nowhere to be found. They were/are on hiatus, and only NOW have just contacted me and said it's against their TOS to resell adopts.



While I understand that a TOS is not technically a legally binding document/agreement, I still try my best to adhere to them- but is it really fair for an artist to do this? I bought the character a good six months ago (I'm sorry, but it's unreasonable to expect me to remember what a single artist's TOS from half a year ago was) and I sold it because of an emergency... and now they (the artist) wants me to pay the other person back (which I can't, as I have no money) and on top of that, the artist plans on taking the adopt back.

I don't think it's right for them to do this (not have their TOS posted as well as not being able to contact them) and then, on top of it, expect me to refund the person I sold the adopt to AND for the artist to reclaim it.

If they had their TOS posted somewhere obvious and easily accessible, I would understand this (and honestly, I wouldn't have been in this pickle in the first place) but with it not posted anywhere and me not able to contact them and get a response in adequate time...


As I said, the money was needed for an emergency. The money is gone now, and I have no idea when I'd even be able to pay the person (who bought the adopt) back. It could be as little as a couple of weeks (which would be reasonable) but it could be up to a couple of months due to our financial status (again, I'm not going to get into that as the details of my situation aren't super necessary).



What do I do?

Comments

[celestinaketzia.livejournal.com]

What do you do? Nothing.

In a simple answer: A design is not protected under copyright law. While the adoptable community is generally good about honoring people' wishes, there is no legal muscle to back up any of it.

If they didn't have a ToS, then they didn't. They can either contact the person who bought it and see if they're willing to sell it back, or they can just deal with it. As far as you're concerned it's out of your hands.

Either way, let's say a design was a good. Once you buy it it's yours. You're not selling the rights to the art, but the design itself.

The best response is to say "Sorry, you didn't show me a ToS when I bought this. I couldn't find one, and you can see if the new owner is willing to let you buy it back." From there block them.

[dilario.livejournal.com]

this.

[kayla-la.livejournal.com]

I agree with this. They can't retro-actively try to punish you for not following terms you didn't agree to. The real question is if you're willing to put your foot down and deal with possible drama.

The last line of suggesting they deal with the new owner is how I would respond, myself, were this to come up.

[rai-say.livejournal.com]

The problem is, there WAS a TOS on the design when it first went up for auction- but that was over half a year ago. After the auction for the design was won, the deleted the TOS (which was posted in the description) and just posted "Owner: Raisay at $".

So while there was a TOS, the TOS was then deleted. They don't have an adoptable or art TOS posted anywhere that I could find (I looked before I sold anything) and I honestly couldn't afford to wait for a response (they were on hiatus and the money was needed for an emergency).



As I replied to teekchan below, yes, I probably should have thought about writing down the TOS. The thing is, I was never planning on selling this particular design (until the emergency came up) so I honestly didn't think to write it down?

I also think it's pretty ridiculous to expect me to remember off the top of my head what one single artist's TOS for an adopt was that was sold 6+ months ago? (Which is why, in the first place, I went looking for it.)

[zackfig.livejournal.com]

This feels like trying to close the barn door after the horse bolted.

[intj-reflection.livejournal.com]

As long as a TOS does not go against any existing laws it can be legally binding, however, the artist has to be able to prove you were aware of (and potentially agreed to) said TOS prior leveraging it against you as a contract. (Which would be why I require written agreement to my TOS prior to starting work on any project.)

However, Celestina makes the most relevant point in that adoptable designs are not protected under copyright law. If you are reselling the artwork, there's a problem. The actual design, no issue.

[rai-say.livejournal.com]

To be fair, though, I was of the understanding that a TOS really is not legal unless the person writing the TOS wants to go to their local court and get it notarized?

To my understanding, there are only certain rules that apply, and that's because they are artist's right/copyright issues? Like the fact that something you draw does, in regards to the art itself, belong to you?



That being said, I still do honor TOS's- before I even went and started selling things, I checked all artist's TOSs regarding the art I was selling. I couldn't find this particular artist's as it wasn't posted anywhere, and I honestly couldn't wait for a reply (the funds were needed for an emergency and the artist was on hiatus, I really could not wait for a reply).

[intj-reflection.livejournal.com]

I'm a notary public for the State of Colorado. None of our guidelines cover notarizing a Terms of Service document. o.O I mean, it's typically a good idea to get contract signatures notarized in case there is a challenge to their authenticity...but this is the first I've heard about a TOS not being legal unless notarized. (Take that with a grain of salt since it might be a requirement in other states/locales and I would have no way of knowing it.)

Adoptables are odd. Typically character designs are not copyrightable and are rarely even trade-markable. Artists creating characters and putting them up for adoption for a fee are basically selling something that has no intrinsic value in the eyes of the law. Artists who create adoptables can't 'own' the designs, but they do possess the rights to the original artwork depicting the character.

Unless specified at the time of purchase an adoptable artist has not relinquished their rights to the image. They have basically sold you the right to use the character depicted, which, unless otherwise protected, you didn't technically have to pay for in the first place.

Without permission, selling an adoptable character using the artist's original imagery, or passing that on to the "purchaser" violates a couple of an artist's rights. The biggest of which is making a profit off of their work when you didn't actually own it in the first place. Some artists are completely cool with that. I've met several that just don't care. Others do.

[chaossal.livejournal.com]

Whao, what? What REALLY bothers me about this is they want you to buy the adopt back for THEM to take it? Yeah they can not just take what YOU paid for. They should have a clear TOS on their profile, they did not, that is THEIR fault NOT yours. You don't have to do anything.
They are free to try to buy the adopt from the person you sold it too if they want it back but nothing else.
I would not mind seeing a A_B about this person so I would know who it is, as I like to buy adopts and would not want to be buying anything from someone who thinks its ok to just take what you pay for back.

[shinigamigirl.livejournal.com]

This is all kinds of crazy. The artist deserves a beware on them in my opinion, what possible reason would they have for not wanting you to resell an adoptable? Particularly so long after the original sale (so it's not like you were buying them up to just turn around and sell them for more). You bought it, it's yours. It's unreasonable of them to expect you to somehow know about their well hidden TOS. I'll second the suggestion to do nothing, you don't owe them anything. Let them try to buy it back from your new buyer, it's really not your problem.

[stormydragon.livejournal.com]

Barring an explicit agreement not to sell the artwork before hand, you generally have the right to resell art you purchase:

First Sale Doctrine (http://en.wikipedia.org/wiki/First-sale_doctrine)

The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one who buys a copy of a book is entitled to resell it, rent it, give it away, or destroy it. However, the owner of the copy of the book will not be able to make new copies of the book because the first-sale doctrine does not limit copyright owner's reproduction right. The rationale of the doctrine is to prevent the copyright owner from restraining the free alienability of goods. Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time he wished to dispose of his copy. After the initial transfer of ownership of a legal copy of a copyrighted work, the first-sale doctrine exhausts copyright holder's right to control how ownership of that copy can be disposed of. For this reason, this doctrine is also referred to as "exhaustion rule."

[celestinaketzia.livejournal.com]

This only really applies to physical art, not a design. Designs are a legal grey area not covered under copyright law.

[sleetfury.livejournal.com]

Pretty sure the most they can do is say to the new owner that they can't use/upload the artwork. Design itself? Go crazy.

[teekchan.livejournal.com]

Was it stated when you bought the adopt? Most artists post their rules right on the submission.

If it was literally '$x through paypal' then the artist is out of luck.
If it mentioned the TOS or rules, then you should have made a note on the file on your HD. You agreed to the rules when you bought it, and even though there's no 'legal binding' it's really, really disrespectful to break them.

[rai-say.livejournal.com]

They did, but they sold the adopt to me over half a year ago.

I'm sorry, but I honestly cannot be expected to remember a single artist's TOS from 6+ months ago. They don't have their TOS posted anywhere that I could find (neither on FA nor on DA) and, while it was ORIGINALLY on the adopt, as soon as the auction ended they just changed the description to "Owner: Raisay at $"

Should I have probably recorded it? Yes, probably. The thing is, I never intended to sell this particular adopt unless I absolutely had to, as I really liked the design. So I honestly didn't think of writing something like that down? I also firmly believe it's up to the artist to have their TOS regarding commissions and adopts in an easily viewable location- which they do not have.

I tried to get a hold of them before selling it but they were on hiatus and, as I said in the original post, it was an emergency- I needed the money ASAP and I couldn't really afford to wait for them to get back to me.

[teekchan.livejournal.com]

If someone held that logic to artwork commissions, they'd be posted on AB so fast and be blacklisted by almost everyone.

"oops, I forgot" really shouldnt be allowed to be an excuse. When you save the file you should type up something like 'adoptbyX-resellokay5.png' or whatever. Name of artist, resell okay or not, and if okay, the price, as many artists state resells over the purchase price arent okay.

obviously the artist can't really do anything now that you've sold it except blacklist and try and buy it back from the new owner. But I think instead of getting upset you should really try and think about it from the artists POV. The terms were posted when you bought it.

Edit - Although I do not think you should be out the money AND the adopt unless that was stated in the rules. Despite it being sketchy (and would make me not buy from said artist) if you agreed, you agreed.

If there was no mention of this the artist cannot reclaim it, and not refund you.

[celestinaketzia.livejournal.com]

I'm going to agree with Teekchan here. It's one thing if you were never shown one; it's another if you did but forgot. At this point though the best you can do is apologize to the artist, and try and make a point in the future to remember what is okay to resell and what is not. The artist in question did everything right to the point of sale. You saw what you were agreeing to from the get go.

Of course with that said, it would behoove the artist to keep their ToS posted publicly in the future to avoid these kinds of mixups.

[rai-say.livejournal.com]

Sorry, see my reply to Teekchan.

What I was trying to say (and typing really tired, wow!) was that on the original submission, I don't remember that being part of the TOS on it. There was the auction start/end times and start price and AB price and such. I also remember there being a "No selling for more than you purchased for" (Which is pretty common) but I honestly don't remember seeing a "No Resell" rule at all. (I usually do write it down if there is; or alternately, I also don't usually participate in "No Resell" things given my standard financial situation of "not super stable". As much as I hate to do it, I like having the option available to resell things if I need to just in case emergencies happen.)


That's why I had searched for a TOS on their pages and noted them about it- because I don't remember seeing that in their TOS on the very first auction.

(It was the first of a "Closed Species", they'd never sold one before- and I honestly do not remember there being "No Resell" mentioned in the TOS on that particular auction? I do normally write it down, but I didn't have anything written for this one.)

EDIT because I wanted to say this-


So basically right now it's a "They Say, I Say" kinda thing. They say that's what the TOS is, I don't remember seeing it at all on the original piece and I don't have any typed/written notes about "No Resell" on that character. I've never run into this issue before, which is why I came to the community in the first place with my wondering what to do.



I think things are sorted out- they haven't messaged me back, and in all honesty I don't think either of us are going to beware each other. I still have proof just in case it comes down to it, but IDK if it'll be necessary or not.

[rai-say.livejournal.com]

No, no. What I'm saying is they had some kind of TOS posted when they sold it, but I don't remember there ever being any rule about not reselling. That's WHY I didn't write anything down?

I remember there being a "No Reselling for more than you purchased it for" (which is a pretty common rule) but I don't remember seeing anything about not selling it at all.


Sorry, I should have clarified (and not been typing tired).



Like I said, that's why I searched for a TOS on their pages and also tried noting them before I even sold it- because if there WAS a TOS stated about not reselling that particular adopt, I didn't see it on the original submission and they then deleted it.