Advice Needed: Adoptable Reseller and Broken Rules

[demonpencil.livejournal.com]

I was just going to message the person, but I thought I would ask here for some advice here first since I've never dealt with something like this.

A couple of months ago, I did an auction of several character adoptables of an original species of my creation. Within the rules, posted very clearly on the FA description of the auction right above the instructions for bidding, I had a single rule. No adoptables purchased from me may be resold for more than they were purchased for. I added this clause because I had seen people purchasing adoptables for cheap and then turning around to resell them and profit off of an artist's work they put no effort into, but I wanted people to still be able to get their money back from it if one day they decided they didn't want the character.
One user purchased two of my adoptables and now I see they have hoarded many adoptables to resell and are selling both designs for more than they purchased, one of them for almost double what they paid me. I am also not credited on either of these adoptables being put up for sale, nor is the species name listed, so if someone purchases them, they won't even know I made them to begin with.

Do I contact them and remind them of the rules and ask them to take it down or lower the prices? Or do I just let them know they're banned from all future adopts I sell because they broke the rules? Is this a common problem for people, rules being broken on their design purchases?

Update: The problem has been resolved without any bad feelings and I've been credited in the sale. So, no measures had to be taken aside from messaging them and I don't plan on banning them from future sales since it was apparently just a mixup on the way they organized the adopts and their prices. Which is a huge relief for me since it does mean they were just buying adopts from people then later decided they needed the money more than they needed all the characters, no maliciousness intended there.

Comments

[celestinaketzia.livejournal.com]

It's up to you. I would approach them and remind them of the rule, and then ask them to credit you. If they fail to do so ban them, and then contact FA staff to have the image removed for lack of credit.

If this is what they do regularly, they'll likely respond that there is no protection for adoptables legally (and they're right), and there's not much you can do.

[exo-formicidae.livejournal.com]

You implied it but just wanted to be sure;

Even if there is no legal protection for adoptables - the buyer still only bought the design and not the right to the image itself. So even if they tell you they won't do anything as there is no protection for the design - you can still "force" them to stop using your original art if they do that, making selling it much harder, and then they either need to make new art or commission it to be able to sell the character - so you can still try to make it not worth it for the original buyer/now seller to break your rules :)

[gatekat.livejournal.com]

That's about right.

You can also watch the sell and point to your original auction and rules to any bidders (by note if need be) if the seller does not voluntarily change it.

The art is still yours. There really aren't that many in the fandom that want to actively anger/go against an artist's wishes.

If you can afford it, maybe offer to buy them back at the original price.

[celestinaketzia.livejournal.com]

Correct!

The design itself is unprotected, and the person who is trying to resell it can draw it themselves and sell it. But the OP can DMCA and get their original art down all day.

[princenowhere.livejournal.com]

I feel like I might know who this is and if so, a few years back I caught them trying to resell an adopt that the creator had specifically said "you may not resell for any reason and may only trade them" about and when I (gently) reminded them of that, they deleted the submission and acted like it never happened.

(edited to add a missing word)

[wolf-goat.livejournal.com]

It's true there aren't legal protections for adoptables - but as stated above, you did not sell the rights to your artwork. Therefore your protection in this is to withdraw their rights to post the work for violation of your rules - contacting FA/any other sites to have it removed. They can still sell it, but they'll need to contact people individually and offer it, which is likely not worth their time.

[anuvia.livejournal.com]

To be honest, I think it's best to calmly approach the person and explain to them (in as nice of words as possible) that they are going against your terms and you would like to request they change the price to be the same as what they paid. While everyone else is completely correct in saying you can force the removal of your artwork, I think it's often easier to try a friendly approach and open discussion before you escalate things! Often times folks will apologize and edit the sale price if you open a kind dialogue with them!

Edit: I hit enter before I was done typing, oops!

In the event that they aren't receptive to your request, then I would say it's time to escalate things in the ways others have mentioned in this entry. Wishing you luck on this situation!

[starcharmer.livejournal.com]

Agreeing with this. People who buy tons of adoptables might not remember the terms for all of them [though if it were me, I'd probably make sure to make a spreadsheet or something so I could easily refer to them in the event I wanted to sell].

Try being polite and if that doesn't work, get it taken down. Hope everything works out!

[greenreaper.livejournal.com]

This may be an unpopular viewpoint, but have to wonder if this policy is appropriate. Why shouldn't someone who's done the work to find a buyer who's willing to pay more be able to profit from doing so; just as artwork may be resold in an art auction, and even deliberately bought for resale?

first-sale doctrine (//en.wikipedia.org/wiki/First-sale_doctrine) might not apply in the USA because it is a digital work without a physical copy. But the concept is the same - the nature of adoptables means that there is at one time only one person the "right" to display the work, even if others have the technical means to do so.

(The topic of rights to sell adoptables (http://artists-beware.livejournal.com/815202.html) still has a lot of kinks to work out.)

[westly-roanoke.livejournal.com]

Because it was the request of the artist to not do so. They agreed to these terms when they purchased the adoptable.

[celestinaketzia.livejournal.com]

This. When it's an agreement upon purchase, then it's pretty scummy not to honor the agreement. We all know adoptables function on the honor system.

[greenreaper.livejournal.com]

The "idea" of an adoptable character may be "on the honor system", but as you agreed, copyright may be enforced (http://artists-beware.livejournal.com/858868.html?thread=31241972#t31241972). Preventing the purchaser from displaying the most tangible portion of what they bought would be is a significant defense. To this extent, adoptables function on the basis of copyright, and are subject to its terms.

I get that people should stick to the rules, and normally I'd agree. The issue is that the OP is trying to have it both ways - to represent the work as a transfer of ownership (as implied by the term "adoption"); but also to set restrictions on resale, similar to a licensed work. If this is a transfer of ownership - of a copy, not copyright - I think first-sale trumps contract law.

The first-sale doctrine was created to facilitate free trade by making resale restrictions unenforcable. The idea is that once you have obtained (bought or been gifted) a copy of a work subject to copyright, it's yours, and you should be free to display it personally (within limits) or sell the existing copy to others. Copyright-owners "exhaust" their rights in the initial transaction.

This concept originated in the USA when a publisher tried to limit a book's resale pricing (https://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus). In that case, the limit was on how low the price could be, but the intention was similar - to restrict the market - and it led to the decision that copyright could not be used to limit resale after a work is sold.

First-sale has since been applied by Europe's highest court (http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf) to digital software downloads, even though they were made under a supposedly non-transferable license and the copyright-holder's terms restricted resale.

Conversely, a New York case on MP3 resale went the opposite way (https://en.wikipedia.org/wiki/Capitol_Records,_LLC_v._ReDigi_Inc.) - though it didn't go to a higher court, so it only applies in that jurisdiction.

The issue is complicated by the fact that you're paying for both the art and the character. The key point in my mind is whether adoptables represent the transfer of ownership in a copy, or a license to use a copy.

The name of the transaction implies that the seller gives up a significant amount of control once it has been completed, and I see other pointers towards ownership transfer:

• Only one person can adopt a specific item - it is, at least, a sole or exclusive license.
  
• Licenses are typically stated as such. This is presented as an outright sale.
  
• The OP relinquished character rights similar to transfer of ownership, such as the right to create derivative works (though not relating to the species).
  
• The attempt to limit resale was the only term. Most licenses have an extensive set of terms.
  
• Resale in general is permitted and expected, though some licenses also permit resale.

Of course, in most cases, no physical copy exists. There's no right to create derivative works of the art - this is common for art sales, but it limits the use. The restriction in question was stated in advance, giving the buyer an opportunity not to purchase. For some these might be crucial sticking points.

Still, I think treating adoptables as subject to the first-sale doctrine would be good policy for artists - far better than trying to set limits which are impractical to enforce. Doing so would not obviate copyright; the buyer would have to stop using a work it once they'd sold it on - and if they didn't, that would be a breach of copyright.

For those who don't agree with this approach, I suggest making it crystal-clear that the work in question is being licensed, not sold, and the terms and extent of that license.

In any case, the OP and other artists have the right to be identified as the creator (https://www.law.cornell.edu/uscode/text/17/106A), which is reflected in most fan art site policies. Preventing the purchaser from concealing the artist should make it harder for them to exploit their position.

[celestinaketzia.livejournal.com]

Whoa, stop right there. When selling adoptables, it is usually made crystal clear that the only thing being "sold" is the design. Not the art itself. Which is why there is no precedent for adoptables; because there is nothing being sold on a legal level.

[poizenkat.livejournal.com]

yeah, i have it in my adoptable TOS that i still hold the copyrights to my art and im sure many others do as well.

[greenreaper.livejournal.com]

I appreciate that it is a crappy thing to say you'll do something and then not do it. (See my reply to celestinaketzia for discussion of whether it might be legal to do so.)

My point was more that the OP and artists in general should not attempt to restrict resale; or else, they should represent it as a purchase of a restricted license, not a sale.

[westly-roanoke.livejournal.com]

If I agree to not swear while using a site. It is then good form to not swear when I am using a site.

If I agree to not sell an adoptable for more than I paid for it, then I should not attempt to sell an adoptable for more than I paid for it.

If I agree to a Terms of Service, then I should, you know, abide by that Terms of Service.

OP wasn't asking about legal avenues, just how to handle a TOS violation.

[venatorrooc.livejournal.com]

Reselling the adopt for more than originally paid, plus not having you or your species credited, is pretty wrong :/ I would definitely send them a (polite) note about it, then if they throw a fit then I'd escalate it by not allowing them to use your artwork, and possibly contacting the new owner and letting them know.

Though I tend to agree to an extent with the selling a character for more than originally bought as long as it comes with additional art.

But it does bring up the question of if "selling" art that you do not have the rights to with the original adopt is kosher. I see it as not exactly "selling" that art as more recouping the money you paid for it, so the cost is inherited down to the next buyer of the adopt.

Example: I buy a $10 adoptable, I pay an artist $25 to draw that adopt, then I sell that adopt + art for $35 - I'm not making a profit, just recouping what I put into it. So it's as if the new owner of the adopt paid the $10 and $25 instead - both artists still get paid and the art is still theirs.

Then again I could totally wrong and this reasoning makes no sense, so feel free to disregard haha.

[intj-reflection.livejournal.com]

No, selling art you do not have the rights to is not Kosher; however, some artists care/know more about their rights than others.

[mistresswolf.livejournal.com]

Yeah. Totally not kosher at all. If I found out that someone sold my art, they would get blocked and the "new owner" would get a take down notice.

[greenreaper.livejournal.com]

And yet… if you paid $10 for a physical sketch and $25 for a badge, you'd be clearly within your rights to sell them on - even if the artist didn't want you to.

Copyright law is a poor fit for the digital age, because you can't truly transfer an existing work, just make new copies. We're still trying to figure out what the limits should be.

[intj-reflection.livejournal.com]

A $10 physical sketch or $25 badge is a single, physical item, not the artistic equivalent of being handed a print file and told to go wild. You can "resell" a character and the art that goes with it all you want if you have no morals and a desire for money. Do it on multiple websites under different names and unless it's a really well known character or artist you could sell the exact same thing to multiple people (for the same price you commissioned art) and make more than the original artist did.

Further, reselling a physical piece of art means you no longer have it. At most you have a scan or photograph of the piece (which will have a decline in quality from the original due to flaws in the replication method). "Reselling" digital artwork or characters literally amounts to making money on a, loosely termed, "item" you will still have in your possession until such a time as you delete it. Sending someone files does not remove them from your computer or backups.(Honestly, I would be extremely surprised if a significant portion of character art resellers actually deleted personal copies of resold artwork once the transaction has occurred.)

At most you've "sold" your limited distribution (online gallery posting) rights, which are typically not transferable anyways.

[greenreaper.livejournal.com]

I fully agree that the ability to resell should be subject to limits, similar to those by a physical copy. It would probably not have been the artist's understanding that they were selling unrestricted sublicensable rights - attempts to do so would be subject to copyright action. Similarly, a transfer would not allow the receiver to do something "new" like sell prints of it.

However, while people can violate the terms of their implicit agreement by selling an adoptable multiple times, I don't think that should preclude purchasers from doing so once, as long as they do in fact stop distributing the art after the sale. That's basically what the European Court of Justice said about Oracle - just because someone could, in theory, keep a copy of their software around, they can still promise not to and so transfer the copy obtained under license to another person.

In the case of adoptables, as you say, when it comes to art people might well keep a copy on their computer; but then, if distribution rights have been transferred, they could just as easily get a legitimate copy from the new owner when they posted it. As others mentioned, the value to adoptables is not so much possession of in the copy as it is the right to publicly display it to others as an image of "your character". As such, the new buyer might also object if the original purchaser kept it in their gallery.

There's a legitimate question mark over transferability. Unless it's stated, you'd have to look at what was common practice in the market for that kind of contract, because the expectation of the parties determines the form of any implied contract (https://en.wikipedia.org/wiki/Implied-in-fact_contract) between them. In other words, if it's common for adopts to be transferable, then it's as if that was part of the contract - just as it is that you can display them non-commercially. It might also be an accepted practice that they are transferable, but not for more than they were originally paid for - I think this would need evidence of market enforcement, because normally if you can sell something, the price is a matter for the buyer and the seller.

[wuvvumsoc.livejournal.com]

I think if you made the art yourself then I can understand marking up the price based on your art. But if someone else made the art for you (even if you paid for it) then you should really get permission from the other artists. They did not give you the right to use their art as part of another transaction.

I can understand the logic, but money you spent on commissions really should be seen as a "sunk" cost. Technically the sale is based on the design, so it doesn't really matter if the character has been drawn once or ten times. I also think this can lead to confusion since I've seen some people pawn off commission art that they bought as "adoptables" if the artist got one or two details wrong in the commission.

[houndofloki.livejournal.com]

The typical resale-of-an-adoptable is essentially: someone buys a design, commissions a bunch of art with said design, then sells the ability to say all this is "yours". The character design never had any copyright protection to begin with. They're not selling the associated commission art or any rights to it, either - they're only selling the ability to say "this is art of my character". When you think about it, a pretty weird transaction.

What you can actually do about it as an artist: you can easily have the original piece you did removed, as you didn't sell redistribution rights to that artwork.

Because characters don't have copyright protection though, you can't prevent the individual from selling the "character design" itself for whatever they can get or using your species for whatever they want - provided they're doing so without using your original piece. Unfortunately, those kind of adoptable rules are pretty much honor-system. You can call them out to other adoptable sellers as someone who doesn't play nicely, but that's about it.

However - there's a pretty good chance this person just didn't keep track of how much they paid you (because it seems most people who buy adoptables buy tons on tons of adoptables) and would adjust the price if you mentioned it to them.

[greenreaper.livejournal.com]

I think you did sell some right, albeit implied by custom; the right for the commissioner to display a copy of the art in their gallery for an indefinite period. They're just transferring that right to someone else, just as they might hand over a badge with a fursuit.

This makes a lot more sense and is more in line with how commissioners see such transactions - as well as commissions in the physical world - while still preserving an artist's exclusive right to earn money on additional copies (prints and the like).

Of course, once transferred, the original commissioner can no longer display said art in their own gallery - they sold that right.

[houndofloki.livejournal.com]

Physical pieces like badges or fursuits are completely different. The buyer does have the right to sell these physical items, for whatever they want, including over their creator's objection (might not be a nice thing to do and might "step on toes", but the buyer does have that legal right.)

With digital art, the buyer isn't selling any rights because they didn't buy any to begin with (unless redistribution was specifically granted). Something fuzzy like "selling the ability to say it's art of my character" is so fandom-specific that it's difficult to argue based on existing copyright law, but the buyer definitely is not selling redistribution rights. They don't have those to sell.

[greenreaper.livejournal.com]

I disagree with your assertion that the buyer has no redistribution rights. They have an implied license (https://en.wikipedia.org/wiki/Implied_license) to redistribute the artwork on their own accounts for non-commercial purposes. This is the common practice for an adoptable, as demonstrated by the fact that artists don't object to the buyer posting that art (nor do art sites remove them as a violation of copyright, etc.) - and because it is common practice, it becomes an enforceable contract term unless stated otherwise. Conversely, commercial reproduction rights are not commonly considered to be part of an adoption, and so are not granted unless stated.

Given they have this non-commercial right to display the art, the next question is whether that right is transferable to another person. I believe it is, unless that right is circumscribed by the terms. Again, this is shown to be common practice by language which addresses this topic (usually seeking to restrict this right).

Now, should such restrictions be permitted? My view is that copyright law has not kept up, and digital and physical artwork should be treated the same way, as a public policy, at least in the case of goods accompanying an adoptable. Adoption is typically represented as a transfer of ownership from the artist to the buyer (hence the name), and curtailing limits on resale defends against the use of copyright by the creator or their assignees to control free trade on the secondary market; the freedom of which is of interest of customers who wish to use such markets.

The contrary viewpoint is that that allowing such control protects creators and results in a greater diversity of works, and that it's the purchasers' choice to accept restrictive terms. I can see some merit to this - for example, restricting resale may mean more video games sold at full price, which in turn could lead to a lower price. One problem is that if substantially all sellers in a market adopt onerous terms, it leads to the erosion of rights we traditionally associate with ownership, as has happened in the arena of online game delivery (http://www.rockpapershotgun.com/2012/02/01/thought-do-we-own-our-steam-games/), digital books (http://www.theguardian.com/money/2012/oct/22/amazon-wipes-customers-kindle-deletes-account), etc. You end up not actually owning anything, just having a highly-restricted license to use it, which obviates large segments of established consumer protection law.

[spartanwerewolf.livejournal.com]

If you agree (by buying the adoptable) to abide by the rules that the seller set forth, then you're bound to those rules. This isn't hard. There is no "right of first sale" with digital art, and the buyer is not buying the rights to the image, they're basically paying to be able to call the design theirs.

Your views don't enter into it- you're not an adoptable artist.

[demonpencil.livejournal.com]

A couple of people mentioned it so I'll just reply to the post instead of each one, but there is no new art of the characters in question. It's just the designs themselves, using the picture I drew originally of the designs.

I also notice another artist has commented on the post advertising the many adopts for resale mentioning they paid them less too for a design they bought from them, and the re-seller replied saying there is extra art of the character that comes with them. However, this is not listed anywhere on the page, the artist was not credited, and the Sta.sh where they're showing the characters contains no other art of that character, though there is some more of some of the other characters they're selling. I feel like maybe they just lied about that to make the artist feel better about it, but they did offer to lower the price if it made them uncomfortable. So I'm not sure on that, and I hope they are telling the truth.

So I'm going to politely note the person in private, ask them about the prices and to credit me, and edit my main post if it gets resolved. I don't really mind them reselling characters they decided not to use to get their money back. I'm just very uncomfortable with them "scalping" my adopts when I specifically put in a rule against it.

Thanks for all the advice guys!