Artists Beware; Echoen

[thaily.livejournal.com]

I'm going to go ahead and post this beware because Echoen has given every indication that he refuses to resolve the issue. Post contains suggestive nudity, but nothing too explicit.

WHO: Echoen
http://www.furaffinity.net/user/echoen
https://echoen.sofurry.com/
https://inkbunny.net/Echoen
https://www.weasyl.com/~echoen
https://www.patreon.com/Echoen

WHERE: My specific issue is with his Patreon.
WHAT: Digital commission which he used for commercial purposes without my knowing, much less my approval, despite the fact he agreed to my TOS when he commissioned me. My TOS has always stated that I reserve all rights to my work, conform the law for freelance creatives as opposed to, for example, work for hire. It should be mentioned that this was a €5,- commission and it cannot be reasonably assumed that the cost also covers any rights in addition to the custom artwork, much less commercial rights, nor was there any indication that the work would be used commercially when he commissioned it.

WHEN: August 2014 until Juli 2015, which is when I confronted him.

EXPLAIN: September 2012 I had a sale on "Itty Bitty Commissions" which is what I call a small, digital, flat-colour, 1 character commission (example). They were so-called "wing-it" commissions, where I would receive payment and a character description and draw it and the customer would receive the finished drawing.
Echoen contacted me and told me he needed a badge for a convention. It was rather last minute, but turn around was fast (a few hours to a day usually) and I moved him to the head of the queue to make sure he had it in time, just to be nice. I also gave him several options (1, 2, 3, 4), all at no extra cost. Again, I was just trying to be nice and a good artist and give good customer service. And Echoen seemed really happy with the work, which he uploaded a week later.)

I thought that was going to be that; customer was happy, I was happy, end of story. Right?

Juli 2015 I find out he's using it as a header for his Patreon, which is receiving almost $300 a month. Now I have a Patreon, and I know I thought carefully about which image to put up as a header to hopefully draw folks in and support me financially. This is definitely commercial use, as it's effectively advertisement, and Pixsy (a site that helps you local potential abuse of your work, they work with legal partners) agrees with me, filing it under commercial matches.

I contacted Echoen, telling him I'd license him the image if he wanted to continue the image for his Patreon. He responded by taking it down and.. Nothing. No "oops, sorry!" or anything. That said, he'd still used the image commercially for 11 months, even though he had agreed not to. I told him I still needed to be compensated for that use, and sent him an invoice for a $110, which is entirely fair considering how much he's getting every month. After this is pretty much devolves into him stomping his feet, making up nonsense reasons as to why he shouldn't have to pay and suggesting he received "legal counsel" which agreed with this point of view. The screenshots. Him. Me. Him. Me.

I asked him to have his lawyer (typically, legal advisors are lawyers.) contact me instead and then he went silent.

Artists beware, Echoen has no respect for you or your rights at all. He'd comment on my work the entire time he had my art up on his Patreon (with my name effectively cropped out of the art!) and we chatted on FA; he had every opportunity to ask me about the work or mention the fact he was using it on his Patreon and never did. He's pleasant to your face, but when confronted with the consequences of his own voluntarily actions he becomes patronizing and will attempt to intimidate you into relenting. To this day he still hasn't even apologized a single time for abusing my work. He takes no responsibility for his own actions at all but instead goes to extreme lengths to avoid it. I ignored some warnings about him and this exact kind of behavior in 2012 after I finished the Itty Bitty Commission, and now I wish I'd heeded them, refunded his 5 bucks and had the work removed. Please don't make the same mistake I made, avoid him.

Useful link: List of common but invalid excuses to copyright infringement as written by an attorney.

Comments

MOD COMMENT

[kayla-la.livejournal.com]

We were a little unsure for this post, but ultimately felt there were more reasons to approve than reject it. If the client in question has made a habit of using art for commercial purposes without permission, people should be aware.

We realize this post may spark debates about legalities. Discussion is fine, but we ask you all to remain civil with each other over any possible disagreements. We'll be keeping an eye on everything.

[theflamecrow.livejournal.com]

That link is talking photos, but I assume the same things count for drawn art?

[celestinaketzia.livejournal.com]

It's about the same, yeah.

[thaily.livejournal.com]

It was linked to me by one of the people running Pixsy, which works with lawyers on copyright issues. He was aware of the whole situation, so I trust his judgement that this also applies to artwork.

[houndofloki.livejournal.com]

It took me a minute to figure out what was even going on here. This guy runs a Patreon where people pay him $300 a month so he can buy commissions? That's strange. I'm honestly not sure if it would be considered "commercial use" or not. Because the subscribers aren't getting access to anything not posted elsewhere, it's not quite the same as a paysite where viewing the art is being explicitly sold.

Demanding back payment for a seemingly arbitrary figure was perhaps a bit odd on the OP's part, but at the very least it's redistribution in violation of the artist's rights and should be pulled down. I think the Beware is warranted.

[thaily.livejournal.com]

http://www.thehelpful.com/creativecommons/what-is-commercial-use.html

"The definition of commercial use is broad, covering more than just obvious 'profit-making' uses. In practise, the term is equivalent to income-generating use of any kind, whether direct or indirect. If you use content for general research, even if not for any specific purpose, and you or your organisation generates income, that counts as commercial use."

Also, it's very common for many companies to bill people an "arbitrary figure", but those usually go into thousands of dollars. I think I set a very reasonable amount.

[laughsatthunder.livejournal.com]

Just asking for clarification, isn't Patreon supposed to be used for artists and not for getting money every month to buy art, especially with no real reward?

[celestinaketzia.livejournal.com]

That's what Patreon is, so his use may not even be kosher by Patreon's standards. When you sign up for Patreon prior to getting pay out you have to fill out tax forms, so what you get from it is definitely considered income at least.

[houndofloki.livejournal.com]

That's actually a really good point; is it even kosher to use Patreon this way? "I have nothing to offer, but give me money so I can buy stuff" isn't exactly how the site is meant to be used.

[lovelesskiax.livejournal.com]

It really, really doesn't seem kosher in any way.
Especially considering Patreon supplies you with a tax form (a W2 I believe) if you're making certain amount from their services...but he's not producing anything...so he could either:
A. Ignore it and risk IRS coming after him.
B. Fill it out which would probably be illegal?

Just...nononono

[celestinaketzia.livejournal.com]

For the latter if the client fills it out, then they're claiming this as income. IRRC (it's been a while), but you can't withdraw your earnings from Patreon until you fill this out. So him claiming it as a "donation" is false.

[lovelesskiax.livejournal.com]

Yeah, i figured if he filled it out it would in some way be falsifying it or something...
This is just a bad idea.

[teekchan.livejournal.com]

I know here you have to claim every single bit of money you get, so even if he isnt doing work for it, it's still making a profit, which he has to claim!

[mistresswolf.livejournal.com]

I'm baffled that he is getting... what $275/mo for this scheme.

[ashleyvsdestiny.livejournal.com]

How do I cash in on this!? D:

[teekchan.livejournal.com]

Im not surprised, so, so many people are doing this.

[mdetector5.livejournal.com]

I've been trying to keep up with what I've been promising on my own Patreon, yet this guy is doing nothing and getting more than I am?

Clearly I am doing something wrong!/sarcasm

[lackoflollies.livejournal.com]

Technically, the way he's using Patreon is not allowed by their community standards.

https://www.patreon.com/guidelines

"Authenticity:

Patreon is for artists, creators, and people who bring ideas... Don’t put up fake pages or collect money for things you’re not actually doing. You also can’t use Patreon as a prank or to fund non-activity. For example, no Creator is allowed to collect funds for *not doing* something, or to fund the distribution of creations that are not yours."

Take that information how you will.

[celestinaketzia.livejournal.com]

Ooh good catch.

[dragontripmon.livejournal.com]

Wow could'nt that patreon be reported somehow since it does go into that guideline of creating content.

[kashidom.livejournal.com]

I laughed at how common points 6 and 7 are in that link with excuses, and how valid people think them, the rest of them are very common as well, so it's definitely worth a read! (which I'll do after responding)


This issue is a very typical problem among consumer clients. They believe that when you make them something it becomes entirely theirs and they can do with it whatever they want (including retail, prints, use it in ads, redistribute, and so on and on) ..of course they either ignore or don't know about the rules around these kinds of activities, so there's a lot of frustration going around.

You're rightful to invoice $110 out of it for 11 months of illegal use, but I believe that doesn't cover anything serious if it even gets to that. If you contact a law firm for information (similar to what you did there with Pixsy) they'll probably up that amount quite a bit and inform you where to get counselling for collection/reclamation, plus service charges for them supporting you further, leaving the client to bite the dust for abusing your work for a commercial purpose, for any amount of time. I believe a starting fee for copyright infringement was easily in the thousands, depending on which regulations are prevalent — it's not unheard of that this is tens of thousands of dollars US for a single lawsuit!

Just to be clear on why it counts as advertising in this case; the image is used as a motivator (subtle or aggressive alike) to help raise funds, gaining financially from pretty much nothing on a small investment of time/purchase/hosting. Even if the image was not immediately related to the gaining of funds itself (as with sales or asking in/around the image), it's an emotional aid to persuade people to spend for the host's gain. This is why commercially licensed artwork (or any visual media for that matter) is so expensive, to cover these artist losses vs potential client gains, in hopes of being fair.

If you had presented them a ToS/contract that said your work is licensed under such and such regulations and they didn't respect that then you'll be in the stronger position. If not, it'll depend entirely on your client's local jurisdiction vs yours as the source of production. Whatever the case, you're in the stronger position because of the copyright acts all around the world!

[thaily.livejournal.com]

"If you had presented them a ToS/contract that said your work is licensed under such and such regulations and they didn't respect that then you'll be in the stronger position."

True! But I don't really want to write up a super scary contract when:
- My TOS has always clearly mentioned "all rights reserved".
- Law is on my side, both in the Netherlands and the US, rights default to the freelancer unless the customer buys them.
- It's not realistic to expect a €5,- custom work to also include commercial rights.

Fortunately he's only one of two people who don't understand this, the other people being someone who was trying to sell a character for which I drew the reference sheet and who claimed that the buy would include all the rights to all the pre-existing commissions.

All of my other customers have been, knock on wood, really excellent and I feel blessed with that.

[everainsley]

Welp, that's a preemptive block. I'm probably not the type of artist he's looking for anyway but better safe than sorry.

Thank you for the beware, Thaily.

[dragontripmon.livejournal.com]

Using a patreon to fufill his fantasies to buy comissions.... Is something like that even legal? that's a first i've seen a patreon being used like that. That's sounds kind of lazy somehow.

[spartanwerewolf.livejournal.com]

I agree that it's shady, but the debate comes in over whether it's truly commercial use. It's also possible that he simply did not consider a Patreon banner to be commercial- I use commissioned artwork in my twitter banner, for example, and I don't consider that to be commercial, even if I RT from my art account and tweet out regular art updates. Could be just a misunderstanding.

If your TOS doesn't specify that your artwork will accrue retroactive fees if used commercially, I don't really see how you can expect him to pay them. You could take it to court, but I'm guessing it'd be cost prohibitive.

You asked him to take it down and he did; personally, I'd consider the matter closed at that point.

[kashidom.livejournal.com]

In court matters, financial damages are seen as the potential gain reaped from the use of the image for that period of time, whether or not there is a policy in the terms, whether or not intentional.. at least that's as far as I understand artists' rights and associated law ..which in this case would be his ±300 USD for all 11 months, plus fees, plus whatever court deems proper to say "don't ever do this again!"

[spartanwerewolf.livejournal.com]

I don't disagree, but this hasn't been taken to court, nor do I think it ever will be. However, I do wish OP the best in trying to wrangle retroactive usage fees out of someone who doesn't feel like he did anything wrong.

[wuvvumsoc.livejournal.com]

One of his patreon incentives is that the patrons will be the first to see the stuff he buys. Do the other artists even know that their work is being used as a money incentive there? It sounds like it's a big problem, especially since he can't guarantee that the art posted on his patreon won't be posted by the artist first (since it's their artwork).

[thaily.livejournal.com]

"Do the other artists even know that their work is being used as a money incentive there?"

He was using my art as a header and he was commenting on my work/journals and I had no idea, so, probably not?

[bearprince.livejournal.com]

not much else to add here other than to echo what everyone else said, but I do want to thank you for providing that link re: copyright infringement, too often do I see similar sorts of situations happen and I've never been sure of how to combat against them. I'll probably be amending my TOS in the future to include a clause against continued commercial use of my work without a license, which isn't something I'd even thought about before. so, thanks for that!

[faustischen.livejournal.com]

...This guy posted to r/legaladvice on Reddit about this issue. It was anonymised, but he was referring to the same amounts of money, the same circumstance, and a "niche art community".
For what it's worth, the advice he got was that copyright remains with the artist unless explicitly signed away so even they thought you were in the right here.

[thaily.livejournal.com]

That's good to hear, thank you so much.

[jesidres.livejournal.com]

I take it you're talking about this thread here? (https://www.reddit.com/r/legaladvice/comments/3gdmcl/accused_of_copyright_infringement_by_an_artist_i/)

Yeesh, talk about assumptions of entitlement. He spun that to be as for his favor as much as possible, and they *still* had to agree he was in the wrong.

Normally I avoid reddit like the plague for person reasons, but dang.

[faustischen.livejournal.com]

That's the one!
But yeah, when even in your best-case scenario the overwhelming majority tells you you're wrong, you're PROBABLY wrong.

Good luck dealing with this guy, OP

[jesidres.livejournal.com]

Yeah, seriously- I wanted to link it here because it shows the behavior of this commissioner and the lengths they're going to justify to not have to pay artists for commercial use.

I also am suspecting that he's well aware his use of Patreon is not kosher by how evasive he is about what he's using it for when asked.

[thaily.livejournal.com]

I've also received private notes from people who worked with him whom he manipulated, guess it was long overdue that someone put him on blast.

[dragontripmon.livejournal.com]

While we are on the subject of his patreon has anyone read his journals about this? Both are NSFW considering the subject matter and the description of the donations. I'm surprised how long this has been going considering what is getting bought with that money for nearly a year.

[celestinaketzia.livejournal.com]

NSFW art that is adult in nature (so porn) is allowed on Patreon. I've contacted them personally about it to get it cleared up.

[dragontripmon.livejournal.com]

Ah so adult art is allowed. It's one thing i understand if it was an artist that was actually drawing the product but this person is'nt an artist but a comissioner who asks for donations to fufill his fantasies and the bottom of one of those journals on how much it adds up is pretty alarming especially this coming out of the woodwork.

[kashidom.livejournal.com]

Adult originals and content are allowed to be sold for any profit through Patreon, although I don't know how correct all of their info about it really is, since the spokesperson I contacted said they "guessed" it was OK with PayPal — which PayPal verified is definitely not the case, in fact none of the spokespeople for any of the (2 or 3?) services they use to get the money from Patreon to your pocket say adult stuff is fine to be handled through them. (exception for limited content via PayPal in US only)

What the user in question is doing is not OK by any means, however x\

[celestinaketzia.livejournal.com]

In order to operate an adult art Patreon it has to be flagged as such. It is removed from being searched, and is only available through the direct url. When your account is flagged in this manner you can only withdraw via Stripe to your bank account. The Paypal option was available at one point in time, but Patreon sent out emails to all accounts flagged with adult content and removed the option. Patreon knows very much that using Paypal for this purpose is against their ToS; they've issued emails about it in the past.

[kashidom.livejournal.com]

Stripe also doesn't allow mature use of their services, though. It's pretty much a "don't ask, don't tell" kind of situation between them :\ ..since Stripe is a provider-to-bank system, they don't get much info but their ToS also don't allow it, although in a separate list.

"Adult content and services: Pornography and other obscene materials (including literature, imagery and other media); sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features"
— Excerpt from: https://stripe.com/us/prohibited-businesses


Edit: the Patreon spokesperson told me that their PayPal payouts still happen, since they don't share which accounts are used for what purposes, listing only their business name and whatever collected amount they're paying you, but again it's not what the systems are for since the lack of transparency can still get your account suspended.

[kayla-la.livejournal.com]

His patreon appears to have been deleted.

EDIT: Or not. It was giving an internal server error for a bit but appears to be back up. Not sure what happened there.

(frozen) Mod comment

[celestinaketzia.livejournal.com]

We're going to screen this! Your comment will still be visible to the OP and us moderators.

[dragontripmon.livejournal.com]

Actually while this is still going has anyone read this journal. It's seems his patreon is legit now?

http://www.furaffinity.net/journal/7024254/

If this is true then....

[celestinaketzia.livejournal.com]

What a shame that Patreon thinks this is okay, but I don't give them money anymore. The second you open the door for non-creators to come in and basically make free money (and who even knows if this guy's getting copyright to do so. Probably not.) then you've lost all credibility as a site geared for "creators".

What's the problem?

[lluna blue (from livejournal.com)]

With regards to OP, I've no issue. He made a mistake and took it down and that's the end of it.

What I don't understand is people's gripes with Patreon being used in this way. It's a zero-sum game for him; he just handles all of the discussions with the artists being commissioned. All the commissions fit a common theme and all the donators know of this and are supporting voluntarily.

I also take particular issue with somebody griping about these "non-creators making free money." It's providing work for other commissioners, not fraud.

Re: What's the problem?

[dragontripmon.livejournal.com]

Actually since you posted this i thought i could give a reason why something like this is pretty bad. Basically while something like this may be legit to the beware but actually it's can really be used for scamming purposes since he doesn't create anything. Which can be a rather alarming red flag. Which most have an issue with as well as what does the person get in return for donating. So it's not really something that actually is good at all as well as it being a moral issue.