Discussion: Adoptables, Resales and Additional Art

[kaiiju.livejournal.com]

I've seen a few comments pertaining to this scattered around, but I thought an actual discussion might be beneficial, since a lot of people seem to be offering/buying adoptables as of late.
I know a lot of people who will buy an adoptable for a flat rate and buy several pieces of art for it -- and then when they eventually lose interest in the adoptable itself, they turn around and resell it for an inflated price to cover the cost of the additional art that they bought for the design.

What's the general consensus on this, out of curiosity? I personally don't find it very kosher.

Comments

[celestinaketzia.livejournal.com]

Admittedly, I've been guilty of this in the past. However, looking back the main issue is that both parties have to understand that they aren't selling anything.

When we're talking about physical art, the right of first sale does apply to the physical copy, but when it comes to digital art there is nothing to sell. Copyrights remain with the artist, and limited redistribution rights were agreed upon with the artist and original client. The latter is a fandom specific thing.

So do redistribution rights transfer in sale of characters or not? Can the artist come back and revoke those rights from folks not involved with the original transaction?

[ansitru.livejournal.com]

I always wondered about that part of "revoking the posting rights", because of a concrete thing that happened to me and left a *very* bad taste in my mouth.

So, an artist who I looked up to was taking trades. I offered a pixel icon, we agreed and I ended up finishing my half rather quickly. Her part wasn't finished yet but she had loads of commissions, so I didn't worry about it too much.

However, some 2 (3?) months later, her character was suddenly being sold, with my icon included as part of the art-package to increase the price (no credit either) and I still hadn't received my end of the trade. I played nice to not upset someone with a huge watcher-base, but part of me felt used, tbh.

So, if I wanted to, I could've asked them to pull the icon from the art-package, right?

Because adding paid commissions to drive a character's resell price up is already iffy in my book, but having this pattern of "New character > taking art trades > reselling character with art pack consisting of art that was traded for" is just so, so shady. :I

(Sorry for the text-wall here, though. D: )

[tanginello.livejournal.com]

I basically came here to post what celestinaketzia did. You can't actually "sell" the extra art along with the character unless you own the rights/did the art yourself. I do understand that if you want to trade off or sell a character, having extra art of it is an added value but... definitely not legally valid.

I'm also not so sure how I feel about artists coming in and "taking back" characters from people who violate their TOS. I do appreciate their attempts to keep people from inflating the prices of adopts, tho.

[rys-khyrsal.livejournal.com]

I don't get into this stuff simply because of all the crap, but.

If I bought a character, I bought it. It's now mine. It doesn't matter who made it or when. When you sell something, it's no longer yours, you get no say in what happens to it, with it, etc.

"B-but the artist made it, copyright, etc"

No. You sold it. It's no longer yours. What happens afterwards is out of your hands. It isn't a 'rental', it's an outright sale. If someone decides to sell it out for higher and it sells for more than what they paid, well, too bad. That's business for you. It happens. Once I own a character I can change how they look, their personality, etc, whatever. If someone wants it to remain how they designed it, then don't sell it.

[celestinaketzia.livejournal.com]

This discussion post is asking about the legal and ethical issues surrounding selling a character for a higher value based on the art that was commissioned of it.

So "This character is for sale and comes with 10 pieces of art by so and so artists".

[armaina.livejournal.com]

I don't see how it's not Kosher. The new owner of the character created new value for the name and overall identity of the character, the artists were paid (or theoretically they were) and nothing was stolen. The only way it wouldn't be is if they claim they're selling copyrights to the art itself.

The fact of the matter is, unless stated explicitly, all adoptable 'sales' are, are a loose agreement to the use and presentation of a specific design and all other 'branding' of that character. Unless the inclusion of trademarks and other rights are explicitly made, then none of those elements have actually been exchanged or purchased.

You're not selling other people's art, you're selling the communally agreed upon ethical right to use the character, and therefore you would be the only person with need or want (theoretically) to use the art related to it. You still can't do anything with it that would require copyright ownership. so literally nothing changes for the artists that were commissioned for the additional pieces.

Basically I don't see what the problem is.

[armyoftinydeer.livejournal.com]

Honestly, I feel that the biggest issue when it comes to reselling adoptables with art is the fact that a lot of resellers don't credit the original artists, which can lead to some issues if the design + art is sold multiple times. This can also hurt the buyer because if anything happens to where you have the art saved, you're out of luck when it comes to getting the art back (as I've learned in the past.)
It also seems to be common practice to not tell the original creator of the art that the design is being sold, which can cause some copyright confusion if the art is posted in the new owner's gallery without any mention of it being bought.

All in all, it tends to be a very confusing process if a design gets sold more than once, no matter how perfect the practices of everyone involved are.

[sian tiley (from livejournal.com)]

as far as I am concerned onces the person buys the adopt its theirs to do what they wish with.

[greenreaper.livejournal.com]

This came up a few months ago. My position is the same: it'd be reasonable to view most adoptable purchases as a purchase of a transferable right to show a particular image without "commercial" reproduction rights (similar to, say, the display of a painting in a gallery without being able to sell prints), as well as a disclaimer of any character rights.

I think it's similarly reasonable for someone who's commissioned a bunch of related art to transfer all their rights, such as they are, and to get the market rate for that bundle of rights (bearing in mind that the act of obtaining related pieces from several artists is itself a useful service, especially if the art is available now rather than at some vague time in the future).

The whole "what if someone else makes money off of it?" business seems short-sighted. Adoptables are generally a good deal for artists; the purchaser takes the risk that the value of their purchase may depreciate, as it almost certainly will, while the artist gets guaranteed money, now, for the use of a drawing of their choice.

If an artists' work somehow does become sought-after, others will come looking for more, and they can raise their prices or sell more at the same price. You may even find that the purchaser returns to the original artist for a new piece, while the seller (who was presumably a fan) now has more money to spend on buying adoptables and other art from the artist - which they're more likely to do given that it turned out to be a good investment. That's a win-win for everyone involved.

The thing to push hard on is your right to be attributed as the creator (https://en.wikipedia.org/wiki/Moral_rights). If that's not happening, bring out the big guns, because that hits your future earnings. This is particularly applicable to the "I'm hiding the source of these adoptable characters to try and flip them" situation (which I think is rare, and does not appear to be the case here).

tl;dr Don't get hung up on a few dollars here or there in the secondary market; if the non-commercial rights to your art/adoptables are popular enough to be worth reselling, thank your lucky stars, and leverage that to sell more yourself at the market price.

[celestinaketzia.livejournal.com]

I agree with this. It is good publicity to have your work uploaded a second time provided you're credited. The main problem with these resales is that sometimes it's just a huge bundle with no credits, which is a real shame.

[growly.livejournal.com]

I treat adoptable sales the same as selling a physical item- it is now the buyer's property to keep, trade, alter, or resell as they will. They don't have commercial rights to the character of course unless we specifically arranged that before money changed hands, but the client is completely welcome to resell the character for any price and the resale is not really any of my business. If I were to see someone profit off something I sold, I'd use that information to raise my prices a little bit.

[mistresswolf.livejournal.com]

I do not approve. Only I am allowed to sell my art. Any adoptable I make can be resold, but not art made of it. That doesn't sit well with me.

[blot.livejournal.com]

This is why I always contact the artist of what ever art piece I'll get before buying a design, if I can. Unfortunately since I do mine via Furcadia, it can be tricky as all hells to track some people down.

[kamilamutt.livejournal.com]

I personally don't see what's so wrong with it?

Generally speaking, character resellers and buyers are perfectly aware they're not selling third parties' pieces, they're just selling the rights to the design. The artists were paid for the labour and skill (not the rights to the piece obviously) of creating a piece featuring certain character. So, after the sale, the extra art is intended to keep being used as it was used before (reposted with credit, as icons, etc), the only difference being that the rights of the design are under a new name.

Yes, characters with multiple pieces are often higher in value, but that's usually so the original owner can cover what was spent originally. Sometimes they might earn a lil more, yeah, but as long as the artist was paid properly and people keep in mind they're not selling the rights to their art, just merely including the pieces involving the design being sold, I don't think it's a wrong thing to do.

[sleetfury.livejournal.com]

One of the problems I've seen with the fandom is that they do actually think they're buying the copyright to the art when they purchase it. Legal savvy people know otherwise but the average joe doesn't. (Something I saw on Facebook recently where someone turned down a commission for a tail because it looked like someone else's species.)

I prefer to trade for adopts myself.

[biztheshiz.livejournal.com]

If you go to a garage sale and buy an old painting that the person commissioned from friend years ago but lost interest in it and decided to sell it, is that kosher?

I'm having a hard time with this...  On one hand, as an artist it would piss me off to see someone reselling a commission I did for them. Whether it be as is or in a a bundle. They're making a profit off of MY work. On the other hand, it's still considered an object once it's completed and sold (just like the garage sale painting).

But if the reseller cannot sell the copywright of the imagine, then is it illegal to to resell it in the first place? What part of the image constitutes as the copywright if it legal to resell the image?

Part of me wouldn't mind as long as there was proper credit and they asked me first. And maybe recommended me for future commissions.... >.>

[mistresswolf.livejournal.com]

"If you go to a garage sale and buy an old painting that the person commissioned from friend years ago but lost interest in it and decided to sell it, is that kosher?"

That is the "right of first sale" and is fine to do with "real world" items. Digital goods don't fall into that category.

[wilk-canine.livejournal.com]

I don't see a huge issue as long as the total value of the adopt + the art doesn't exceed the total amount paid. As a customer if I buy an adopt that I eventually lose interest in I'd like to think I can at least recoup the amount of money I spent on it when I get rid of it, be it through trading for something of equal value or selling it for the amount of the adopt + the commission fees on each piece. But not over, otherwise you get into the sketchy territory of profiting off of other people's work - but I don't see it as profiting if you're just recouping your losses.

To be fair a lot of people won't see it that way; which is why you should respect anyone who doesn't want their work redistributed. Maybe even go so far as to ask/double check with the artists when you buy art from them or go to sell the character. I feel like a lot of this really comes down to individual wishes and communication, honestly. -3-

[houndofloki.livejournal.com]

Adoptables are a quirky, fandom-specific transaction. From a legal standpoint, nothing is being bought or sold; character designs don't have copyright protection. Stipulations (don't resell it for more then you bought it, don't use it in porn, this is my "closed species", and etc etc) are all just honor system. You can ask people to respect them, but you can't do anything about it if they don't. If you're going to jump into adoptables, you have to be realistic about that. Artists who hope to exercise a ton of control over characters they've sold usually end up frustrated.

So far as reselling an adoptable with a "bundle" of art commissioned from other people - the buyer is not selling redistribution rights for this art (because they didn't have those to begin with), they're just selling the ability to say "this is art of MY character". The character itself is what has increased in value by having more art created of it. If you bid on a transaction like this, be aware that you do not have rights, including redistribution, for the additional art.

IME - adoptables can work fine, make money for artists, and be fun for buyers...both sides just have to be realistic about it.

[totschrei.livejournal.com]

I can say I am guilty of this.
When I had a major detatchment to a character causing harmful mental stability I sold the rights of the character.

However, I told the person all the artist as well as who they had permission from as well had to ask those artist themselves.
As I knew one artist told me I had no right to the artwork so I told the new buyer the same. That she couldn't use/post that work and so far they haven't.

I don't see the big deal as long as you give credit to the artist as well ask the artist if you may post that artwork because they do retain all rights to the artwork itself.

[miliki00.livejournal.com]

I know I have seen that a few times as well. But several of the artists I adopt from, put a stipulation in their agreement that you cannot sell a character for more than you purchased it for. Except in the case that you purchase extra art for the character than you can add more to the total you sell it for... But auctioning juat doesnt seem right...

[purpule.livejournal.com]

I feel sad when I can't keep track of adopts I've made because I like to see th'art that's subsequently made!

However, I actually DO think it's kinda shitty form to re-sell the character at a very much inflated rate because it's got additional art, because then it's like you're selling the artwork you bought which makes me feel... well, not quite right. For me it's kinda delving into the realm of selling on digital copies of artwork you purchased and that feels weird. I have no legal basing on this! It just doesn't feel quite right.

If you've drawn 'em yourself? Sure, fuck it, sell it on! But if you had them commissioned/gifted to you?

[greenreaper.livejournal.com]

I see it this way:
* You must have been buying something, e.g. the exclusive right to display the images in your own gallery and represent it as "your character". After all, once sold, adoptables aren't available to anyone else. (Unlike a commission, it can't be said that what was bought was "creating the image", because the artist did that already.)
* If you bought an exclusive right, it's reasonable to be able to transfer that right to another person, as long as they continue to credit the original artist, don't make prints of it, etc.

There's a lot of room for debate about what price is reasonable. If an artist wants to be strict about nobody else profiting, I think they should obtain the right of first refusal (https://en.wikipedia.org/wiki/Right_of_first_refusal) to buy it back at the price paid for it. Then they can benefit from appreciation by selling it to the proposed buyer themselves.

Of course, that would reduce the value of the adoptable, just like any other covenant. In fact, I'd be reluctant to make that kind of deal unless it was accompanied by a guarantee that the artist would buy it back, at any point (i.e. indefinitely refundable adoptables). Otherwise, they're seeking to benefit from appreciation without taking the risk of depreciation.

[harkthorn.livejournal.com]

Personally I feel a bit off about it-selling the adoptable design, okay, it's the buyers now to do as they please with. But the art itself, the rights are still with the artist unless clearly specified.

When the adopts are resold with the art included as part of the reason for the increased price then that isn't okay (unless the artists have all allowed it, either by giving the rights entirely or by transferring limited rights to the new buyer), but if the inflated cost is just for the design itself then I don't see much problem with it, especially if the original creator gets credited.

[pajuxi.livejournal.com]

There is a lot of good points going on in the comments and i don't have much to add that hasn't been said yet- but i have seen the idea of having your art being added to the resold adopts value = "the seller making a profit" and i wanted to put my 2 cents in on that.

I think 99% of the time, as long as the seller is being truthful with the prices of the commissions they have gotten, theres no profit being made, its just trying to recover sunken costs?

Terrible analogy time but to me its like if you bought a shirt for 5 dollars so you are out 5 dollars, but then you sell the shirt to someone else for 5 dollars and you basically have broken even and haven't actually made any money if that makes sense?

Like on the occasions I have resold adopts its not like "muwahaha I'm gonna make mad profits off of other peoples stuff" its just "man I have bought like 40 bucks of commissions for this 10 dollar design and I'd like to make some or all of that back instead of it just being a waste"

Also out of curiosity in the scenario of adopt resellers not being able to add the value of extra art to the resell- do you imagine still getting all of the art with the design or no? because this may just be me but as an artist i would be kinda bummed if art I did of a character for a commission just was completely unusable because the art wasn't allowed to travel with said character-I'm not offended by my art being added to "bundles" if credited, I appreciate the free advertising myself!

[staple-gunner.livejournal.com]

basically just commenting to THIS pajuxi's post if only because no one is ever hoping to make a big profit from resales, only to get their money back, to break even as she worded it

that's how it technically is.. and as an artist i couldn't care less if someone resold my work with an adoptable as long as it was counted for the actual price they paid so they too can break even? it's common in the adoptables community and is sort of that mutual agreement that this is what's expected when people do resales

i personally would be super sad that my art wasn't being used if someone just sold the char but can't include the art with it-- like? my work is just being wasted and can't be appreciated by its new owner. i don't really like the thought of that? if someone can't include my art in the resale i honestly would find the purchase of the design pointless if it came with so much art but no one can use it. i can see why people would find it iffy and there's that whole gray area with digital goods in the first place, MUCH LESS adoptables not even being in that area and being difficult to determine since you technically can't 'buy' them with any rights, but.. eh.

it's something that i really don't mind, but if an artist had an issue with it, i would HOPE they have that in their TOS stated clearly and in big bold print so i can be aware and not put them through grief if they're feeling that strongly about it. especially because there's a ton of chars i would never sell, but if i had to in emergencies i would be relying on sales and that can be unpredictable especially if i thought originally, 'i won't get rid of this' and might end up having to, and their art is someones work they don't want included in a resale. i usually try to not get art of characters a lot if i feel i may not be attached to them as i thought i originally was, but shit happens.

i want to respect the artists wishes since i get not everyone feels this way. and if they do have a problem but don't have it listed i wouldn't mind them coming to me about it, i just need to be aware since this is such common practice in the adoptables community.

edit: oops wanted to clarify a thing sorry!

EDIT: GOD SORRY SO MANY EDITS but i just thought of how like, gaining art through resales can also be super good for artists. technically they're not losing money, and new owners show off that art and gain them exposure too- i've found artists through people buying characters through resales when they advertise their art after buying the character, or even during selling i see the art and go WOAH. i honestly don't see much of a downside in resale cases but to each of their own i suppose!

[wuvvumsoc.livejournal.com]

I once sold an adoptable before that had art by another artist, but I was the original creator. In that situation I did not post the artist's art of this character, instead I used my own art to advertise the sale. Buyers would not have known there was additional art.

After the transaction took place I noted the buyer "by the way, there is another piece of this character done by this artist." and linked to the image. I figure it's okay to let people know where other art is located, but if you don't have rights/permission to the art I wouldn't use it to advertise any of your sales.

As for selling an adoptable that you didn't originally create, I would get permission from the artist first. If they say no, then don't do it, if they say go ahead then you're gold, and if they say keep it at the same price that's also okay. I think that helps save a lot of grief in the future if the artist finds out that someone's been selling their adoptables and not asking.

[staple-gunner.livejournal.com]

you bring up an interesting point that i thought i'd ask more about :0

now, usually with adoptables there's that rule of 'don't charge more than what you paid for it' that is super common! but if you don't have /any/ art listed as advertisement for what comes with it, couldn't that be perceived as trying to milk it for what it may not appear to be worth- but in reality comes with like more than 5 pieces of extra art? couldn't that be a potential problem if the maker of the adoptable saw that?

what if you say it has extra art, but you just don't show the artwork- would you find that an acceptable course to take? not including the art in sales is wasteful for what you paid and what people can get out of the character from whatever art you have of it- but i feel it'd be hard to not make good resales if people don't know what they're getting. you could say a character has 5 extra pieces of art and they could all be nice or they could all be bad depending on taste.

[ithinkdirt.livejournal.com]

The best compromise I can come up with is that the creator of the art should be able to revoke posting privileges of the art they created if a sale happens (or work out a deal with -whoever- is involved in this change of hands). If you created the character, you should honestly just come to terms with the idea of the character no longer being yours, but a 'good' you are selling to someone. Like, that's pretty much all it can be, functionally and as far as I can tell, probably legally. But if the creator of any art of the character holds rights to the art itself, they could have a clause in their TOS stating that unless arranged they retain art of the character they created, and reposting rights are revoked in case of sale. Yes, this might mean selling a character with a lot of art by different artists might be a pain, but it's the most fair to the makers of the art while still allowing the buyer of the character the rights to the character itself, and if the artists allow for it, a way to arrange or purchase the ability to pass that art on in sale of the character.

[celestinaketzia.livejournal.com]

Character designs are not protected under law. This market essentially runs on good faith, because we are selling nothing. See Sable's response up above.

[sableantelope.livejournal.com]

1/2

Hey guys,
Just wanted to pop in since I've been doing some thinking and reading on this. If you read above another user and I had some disagreement on this topic and if you could actually make an ersatz binding contract for adoptables despite them not existing as a legal entity therefore product.

Hey guys,
Just wanted to pop in since I've been doing some thinking and reading on this. If you read above another user and I had some disagreement on this topic and if you could actually make an ersatz binding contract for adoptables despite them not existing as a legal entity therefore product. So I wanted to do some research and see if I was off the mark on this.


Aaaand I actually found some precedent to apply to this situation. Unfortunately, for those of you in this niche of artwork as business it confirms what I thought. :/

The fact is that you aren't as buyer or seller going to find any legal recourse if a deal goes bad. Courts will not recognise the deal, even if there are big time contract no-nos of non-payment, non-deliver, bad faith(a design sold as 'exclusive' being resold multiple times for example) and clearly "ethical" wrong doing. Doesn't matter. There's no deal in the eyes of the law here. This comes from a major company with serious legal muscle(Valve) and actual cases of thousand of dollar in loss. These cases are
analogous pretty well down to a tee from the product sale standpoint: items which only 'exist' digitally, items which on 'exist' in the specific community; but these items are being sold for actual 'real world' currency. Even in cases of losses in the thousands with a very clear party in the 'wrong', there is no legal recourse because the item dos not exist in the eyes of the law, there is no contract in the eyes of the law. It's like money being thrown into a black-hole legal-wise.

So sorry to bear bad news on this but I was pretty legally certain on this to begin with, now I can see the same issue in action and it's just what I thought: you may have an otherwise legal contract with all requirements met(offer, acceptance, consideration, etc) but you are making that contract in a legal vacuum.

There's no protection for buyer or seller.


Now FA has written into their terms of service rules on respecting adoptable sales but that only applies on-site. That does not equal any kind of legal recourse. Your only recourse in this case is that the party in the wrong may have their use of FA terminated(depending on how the FA staff feel like enforcing their rules that day. :P).
It doesn't grant any kind of financial protection. Or any protection to prevent them, say, selling the same adoptable on another art website.

(continued below!!)

[sableantelope.livejournal.com]

2/2

So CAVEAT EMPTOR with adoptables, guys. It's a market running on goodwill and good faith. You aren't buying any legally or copyright protected product when you "buy" an adoptable, you're basically donating to the seller to share in an abstract idea; and as a seller as soon as you post that artwork up there's nothing stopping anyone from using that design themselves without paying you. You have 0 recourse if you get ripped off as a buyer or seller.

However it's always really important to remember that the artwork itself(the image containing the adoptable that is 'published' online) is automatically protected for you based on DMCA (in the US and any other country that treatied in on honouring DMCA). The original artist can file a take down notice on anyone re-posting the design artwork, just not anyone redrawing and using the design itself.

Also buyers: when you 'buy' an adoptable you are not automatically buying rights to redistribute or republish the original character artwork(even to your own account, though that's pretty par for the course on FA). So the original artist can DMCA that anytime, including if you 'sell' that art along to the next 'buyer' of the design with assumption they can now go repost it to their own accounts/webpages online.

A simple buyer's agreement done through email/messages like most FA type transactions end up being at the end of the day is never going to hold up as a rights transfer if challenged with DMCA. So if you want those rights as a buyer make sure to do some specific agreement on that(be prepared to pay extra fee for those rights), and doing a 'sign/scan' method contract would be a good idea so you can counter challenge a DMCA takedown if you ever needed to. Like I said above DMCA has a long arm and sharp teeth.


So the TL:DR is:
• Artwork of adoptable = absolutely protected with actionable legal status

• Adoptable's design itself = absolutely not protected legally based on current case precendent and copyright law, even if the sale agreement would otherwise be a binding contract. This is because the adoptable does not exist as a legal entity and the contract exists in a legal void

---

(and, as always, this is not legal advice ;) just some food for thought)