Is This Artist Cancellation with No Refund Clause Legal?

[sawblade5.livejournal.com]

I came across an artist that I am following on FA which made a recent change to their TOS. They now added a clause on Harassment. If you Harass the artist they will cancel your commission with no refund at all. The rational is kinda vague and they operate on a 3 strikes policy. They say they will answer any questions on your commission, but the vague part is here: "We will not tolerate being constantly messaged, contacted, e-mailed, etc. about your commission."

So what do they consider constantly messaged, contacted, e-mailed, etc? Is it Once a year, once a month, once a week, once a day?

What keeps them from saying my message would be considered harassment to give them an excuse to take my money and run?

So is this even legal at all?

I sure hope that more this doesn't become a trend on scape goats to take our money and run for more artists.

Comments

[gatekat.livejournal.com]

I have doubts it's legal, but I don't know.
At a minimum it's completely unethical.
Legal or not, it's the biggest red flag there is to not commission them.
Seriously, no one is that amazing for their price.

[spytdragonfyre.livejournal.com]

No it is not legal. Its illegal to be paid for a service, not render service, and keep payment.

[teekchan.livejournal.com]

Not legal, but even I have a harassment clause. But it's for REAL harassment and breaking of my TOS. I will give a refund for the work I have not completed.

An artist can not refuse a refund. You may only get partial, but they cannot outright refuse. If they've done half the work, they will keep half the payment.

The only time they shouldn't, is if the artist cancels. Save for harassment/breakage of terms. Full refund should be given if the artist cant/no longer feels like working on your image.

[sawblade5.livejournal.com]

Might I add that this is a Fursuit Artist I am referencing

[gatekat.livejournal.com]

It should not make a difference.

[teekchan.livejournal.com]

The only thing that is different is if there is a non refundable deposit for materials. If the materials are bought, but not used, they should be shipped to you, I believe.

The rest still applies.

[gatekat.livejournal.com]

That example is solid grounds to cancel a commission. It's something important to include, since the reader may well have a different idea than you want 'too often' means.

That doesn't clear you to take someone's money and refuse to send the product they paid for.

[alisea.livejournal.com]

Its not the commissioners issue you have already spent the money. If you aren't making enough on the suits to justify your skill raise the prices.

In all honestly that TOS is really unethical. Part of doing services is customer service and if you can't manage that person you need to pay them back for services not completed.

[intj-reflection.livejournal.com]

This. I would also re-examine your policy on having the commissioner paying your Paypal fees as it could result in the freezing of your account.

[gatekat.livejournal.com]

Yes, all it takes is one person familiar with PayPal rules to link them to your TOS and PayPal will cause you no end of grief. They don't even have to be a client or PayPal member.

[ducttapeninja.livejournal.com]

^This, exactly. The client is paying you for a fursuit, and until you finish that the money isn't actually yours to immediately spend on other things. If you cancel, you owe them a refund on the work you didn't do. To do otherwise is blatant theft.

[gatekat.livejournal.com]

Which, again, is something you did not explain in the TOS. Just that the question was asked and you had to explain these points as I and others bring them up should tell you very clearly that it is not communicating what you need it to.

At best, it's poor communication and will drive away clients (and not the ones you don't want, but the ones like the poster and everyone who's replied). Folks who legitimately harass and threaten very rarely believe they are doing wrong.

At worst, it's flat out illegal.

MOD COMMENT

[kayla-la.livejournal.com]

Hi! This is an advice post, not a beware, so I will be screening this and any other comments you make outing yourself, as advice posts are meant to remain anonymous.

[mortymaxwell.livejournal.com]

"No refunds for harassment" isn't legal. Professional thing to do would be to cancel and issue a partial refund. I'll be staying away from artists like this!

[growly.livejournal.com]

Honestly if someone can't handle people checking in every now and again about commission progress, they're probably not ready to take paid work, or need to reduce the number of orders they take at any given time, or something.

Sure some customers get over enthusiastic and email every other day, but those tend to be rare and the artist can simply ask them to stop (or set specific dates for contact, like "expect a progress email from me on the 15th!")

[keyoki.livejournal.com]

If an artist feels uncomfortable with a client they can cancel a commission at any time but that does not mean they can keep funds given to them.

That is theft.

If you give me a down-payment on a car I can't just decide not give you the car or the money because you called me five times in one day. I can tell you to cut it out or I can give you your money back.

mod comment

[celestinaketzia.livejournal.com]

This advice post has nothing to do with issues of harassment.

The OP asked if it was legal for the artist to cease a commission and keep the money. The answer is no. Absolutely not.

If anyone is having issues with a client one must tell the client the commission is being canceled and refund. If the amount taken was to buy physical items, then the items their money paid for must be sent to them.

Anything short of that is theft.

Edit: And when we screen your comments it is not an invitation to use a different account. We do log IP addresses.

[roy cast (from livejournal.com)]

i understand that we go away from the topic. i have found nothing that says it is illegal.
though it can be unethical

[keyoki.livejournal.com]

A lot of artists take a "non-refundable down-payment" but its only non-refundable if the client is the one canceling. Otherwise I could take an item, sell it to five different people, cancel on all of them, and keep their money.

If you think of this in any context other than art it becomes really clear how illegal it is. If you pay for one night of a hotel stay, show up, are told you don't have a room, you expect your money back. If the hotel was like "well its a deposit and you're making me uncomfortable so we're gonna keep it" most folks are gonna call the cops and a lawyer.

[intj-reflection.livejournal.com]

You phrased this very well. I was attempting to figure out the best way to frame something similar.

[wuvvumsoc.livejournal.com]

It is very illegal. A partial refund would be justifiable if the artist did some work already but a full cancellation w/o doing anything with no refund is bad.

[kazeno-taka.livejournal.com]

Canceling a commission and refusing a refund for any reason is illegal.
Canceling a commission and giving a refund for any reason is legal.

It's really this simple.

[chronidu.livejournal.com]

Yeah no it is 100% illegal to just say "NAH I don't like you the money is mine now go away" Like seriously, it would not hold up in court what so ever.

The artist would be obligated to return the funds if they cancelled the commission, or whatever work is done and the funds remainder for work not completed.

[thaily.livejournal.com]

It would behoove artists to mention in their TOS if they have a limit to the amount of contact you can initiate; i.e. once a week or so.

Vague "no refunds in case of harassment" disclaimers are just one giant red flag. To me it kind of feels like they're planning to take offense and taking the money. Especially on such a huge expense as a fursuit? Find another artist to work with.

Legality-wise I think it depends on where they are, that's worth looking into. I think a partial refund (minus material, work and shipping unfinished product&material out) would be acceptable.

[kytheraen.livejournal.com]

If anyone has a clause like that in their TOS I become wary. I would imagine if you took money and produced art in a timely fashion, there's no reason for a commissioner to contact you, and no reason for repeated contact with no sign of either communication or art to border what you might then call harassment.

If you promised art, reply "yeah, yeah, I'm on it" for the first few times, then ignore the next few messages asking for updates or even another "I'm on it"... you don't get to call harassment and keep someone's money.

I'm purely speculating here, but this seems to be a pattern I've noticed. Bad comms/slow delivery/angry artists have harassment clauses. Cos they don't like to answer emails asking "where's my art?"

And yeah, not legal. Some nice analogies already posted :)

[skanrashke.livejournal.com]

Probably more than once a week is too frequent. Speaking as someone who has a similar clause in their ToS, it's to prevent people from messaging me 30+ times a day(Which happens all too frequently when making fursuits- a project which should take at least 2 weeks to complete, so waking up every day to 30+ emails in my inbox is usually grounds for me to cancel the commission, refund them and not deal with them again).

[sapphistscot.livejournal.com]

Cancelling with no refund is definitely not legal and I wouldn't commission anyone with that in their TOS. Furthermore, there are artists out there who will claim that asking for an update or making a post here is harrassment so they really need to be specific. But cancelling with no refund is theft in any case.

[lackoflollies.livejournal.com]

Nope.

I'd also be doing a paypal chargeback and ceasing my commission with them on my own terms at this point.

[mortymaxwell.livejournal.com]

I'd do what other people have said and find a different artist. The no refunds policy is illegal and skimming through the comments, I see there's talk of spending client's money before the work is done and demanding the client pay Paypal fees. Red flags everywhere. Yikes!

[kayla-na.livejournal.com]

Not legal. The judge would probably laugh at them if they tried to bring that to court, saying that was their defense.

[snobahr.livejournal.com]

No, it is not. And here's some support for that assertion.

Federal Trade Commission's Guide To Mail/Interenet/Phone Order Merchandise Rule (http://www.ftc.gov/tips-advice/business-center/guidance/business-guide-ftcs-mail-internet-or-telephone-order). When Your Fulfillment Or Other Obligations Begin ("Properly Completed" Orders)
The "clock" on your obligation to ship or take other action under the Rule begins as soon as you receive a "properly completed" order. An order is properly completed when you receive the correct full or partial (in whatever form you accept) payment, accompanied by all the information you need to fill the order. Payment may be by cash, check, money order, the customer’s authorization to charge an existing account (including one you have created for the customer), the customer’s application to you for credit to pay for the order, or any other method.
[...]
When You May Cancel an Order
Instead of seeking the customer’s consent to delay, you can always cancel the order and send a refund. In that case, you must notify the customer and send the refund within the time you would have sent any delay notice required by the Rule.
[...]

(Emphasis mine) And here's a good bit:

Why You Should Comply with the Rule
Merchants who violate the Rule can be sued by the FTC for injunctive relief, monetary civil penalties of up to $16,000 per violation (any time during the five years preceding the filing of the complaint), and consumer redress (any time during the three years preceding the filing of the complaint). When the mails are involved, the Postal Service also has authority to take action for problems such as non-delivery. State law enforcement agencies can take action for violating state consumer protection laws.

[houndofloki.livejournal.com]

Legally, "non-refundable down payments" are only non-refundable if the BUYER cancels. If the seller cancels (for any reason) the down payment has to be returned. This prevents sellers from either taking money from multiple buyers for the same item or taking deposits on spec projects they never intended to complete, canceling them all, and keeping the down payments.

Spending money you received for work you haven't yet completed both irresponsible and ill-advised (something, at some point, with some client, is going to happen that you need to issue a refund and spending the money right away comes back to bite you.)

[somefurry.livejournal.com]

It's a bit of complex question so to say. Going from contractual freedom you can agree on anything that is not illegal. Like you can't agree to kill someone since homicide is a criminal offense. Makes sense.

Basically you can add anything you like, for example like if you breach the contract you must pay $1000, or you agree to keep the content secret aso.

To answer now. Yes you can write down "I can terminate the contract at any time and you agree that you waive the right of a refund in that case." However as you already mentioned yourself it's poorly defined. Which means it would need to be interpreted what the meaning is. There yould measure what an average reasonable person finds accuracte. I would say somewhere in between weekly or monthly is not really harassed. More like writing a note every 10 minutes. It's just very unusual that the service provider can do that without a refund. Business ethics usually make it the other way around. If you terminate it that you can't have the money back and vice versa. Questionable, highly questionable.

There are some rules and restrictions from antitrust and (leaning a bit out of the window here) probably from consumer protection as well regarding TOS. However to keep it simple they most likely (Not sure, didn't look it up)are not applicable.

Now you could make things even more complicated if you say the agreeing parties are not both from the US. Then the answer might change from which law is applicable at the end, if not defined.

In any case such a clause is a red flag not to commission that person. Basically you agree on "I give you money and I can decided if I want to do something or not contract."

In the end however you only will find out if something like this which can be determined as grey area is really applicable or not by going to court but then again, too expensive and not worth it. Rather just ignore and not making business with that person. Seems to be very unethical.