Advice needed: Regarding Copyright on an Avatar Site

[sonatine-artsu.livejournal.com]

Hello everyone!

This is my very first time posting here so I'm really sorry if I do something wrong! And if something is confusing, I am sorry; English is not my first language but I am more than glad to go further into details if needed!

I have been doing commissions for a website called Subeta, in which artists can be hired to create clothing for the avatar. These clothing can be then submitted to the website, and, if approved, the users can dress their avatars up with it.
There are also recolors. If the, let's say, dress is red, after it's approved, the commissioner can request other colors of this dress if they wish.

Before you submit the item to the site, it's clearly stated that:

"Anything you submit, including items based on personal characters, becomes property of Agoge, Incorporated."

I recently wondered, however, what happens if I block a user. I filled a ticket to the Staff asking about it; and if they would be allowed to edit my artwork without my consent, considering I blocked them and they can no longer contact me nor ask for recolors.

They told me:

"Hi Sonatine,
This really depends on the exact terms of your commission with the user, and not whether or not they have blocked you or vice versa. If you drew the item for them and from that point on you consider the art completely theirs, they are welcome to submit recolors. If you have a TOS that states you retain the rights to the art, then they cannot distribute recolors done by other artists as they cannot edit the art. It depends on your terms from setting it up. That being said, the terms cannot be changed NOW just because they have been blocked."

It is true that I never really wrote in my TOS that the ownership of the art is mine, but looking through the copyright posts in this community, doesn't the art always belong to the artist if nothing is stated? Also, if they say anything you submit becomes property of Agoge, how will the art even belong to either the commissioner or the artist?

I am really confused by this right now, so any clarification, preferably with proof (like, a law or something, so I can posteriorly prove to Staff that even without the TOS I do own the art, unless I have sold my rights, which isn't the case) would help me a lot.

Thank you so much in advance everyone. :)

Comments

[yuki-fox-demon.livejournal.com]

I may be mistaken, but as far as I know, an artist ALWAYS retains ownership of the original artwork, unless a deal is made during the commission process to sell the rights to the commissioner. It doesn't need to be in your TOS. What *might* need to have been in your ToS is whether or not the commissioner is allowed to edit/have another artist edit the colors. Some artists don't care, some do. Their response doesn't really make sense.

[greenreaper.livejournal.com]

I can see where you got confused, because you don't need a TOS to "retain the rights", nor to "consider the art completely theirs". It'd typically remain under your control per copyright (17 U.S. Code § 106 in the USA (https://www.law.cornell.edu/uscode/text/17/106) - an edit is a derivative work), while their phrasing implies the reverse. But the support response is right in the sense that you can make an explicit agreement either way; and that having done so, it would be wrong to go back on it.

If there are terms not stated, but understood by all parties (e.g. you both believe accepting a commission on a particular forum (https://subeta.net/forums.php/forum/91/) implicitly permits the commissioner to post it as a custom wearable on Subeta), you should take those into account. This might include "anyone can recolor unless the original artist said no before accepting the commission" - but as a Subeta artist, you'd know if this was usual. It seems unusual to me.

In any case, if you really don't want blocked people resubmitting your art, it'd be best to put it in your terms and get agreement to them when taking a commission. Then you have something concrete to show, giving support a reasonable basis for enforcement. If they don't act, you can pull the copyright card; just be aware that if they see you as being unreasonable they might just pull the whole item (or all your items) to avoid problems in the future.

--

That "become property of Agoge" wording is from their custom clothing (https://subeta.net/explore/custom_clothing.php) page, right? It's a bit… vague. You can't do a copyright transfer (https://www.law.cornell.edu/uscode/text/17/204) that way, at least in the USA - and subeta.net is registered (http://www.enom.com/whois/default.aspx) by a U.S. person (https://www.linkedin.com/in/keithkurson). [Incidentally Agoge's own website is offline (http://agogeincorporated.net/), though there's an archived copy (http://web.archive.org/web/20111014213112/http://agogeincorporated.net/).]

They might perhaps mean that you are making an irrevocable, non-exclusive license to display the art, or the specific arrangement of it, with the intent being to show it to other people in their use of the site. Of course, you have to get something back for that to have any effect, but I guess the ability to show the item on their site and transfer your own copies to others might count.

Alternatively, they might be trying to avoid the copyright apocalypse situation mentioned above. I noticed the phrase "If your artist has never been a Subeta user, you are assuming all risk for art you submit." So… their theory is that if they are a user, they agreed to the site using their art? o_o Or perhaps it's more because such artists are likely to be commissioned through their forums, and art from outside is more likely to be "stolen".

Their rule regarding content submitted by frozen or banned users (https://subeta.net/help/rules.php?act=rule&id=74) suggests that they do at least stop people using your art if your can't use the site or its custom costume features - although this may be more to head off copyright violations. It'd be hard to stop people doing recolours and suchlike, beyond banning them from using the submission feature at all.

[mewsicklemels.livejournal.com]

Oh wow, you're having problems with this now too? :C
First off, I know little about actual copyright, but I do know that Subeta's idea of it is really skewed.

I'm on Subeta as well, and I had a user purchase a design but is now refusing to do anything with the artwork (AND refusing to even acknowledge my existence) and staff would not let me force a (full) refund and revoke permission to submit it so I could submit it myself. I had to add a clause to my ToS giving myself permission to do it in the future, but am SOL for the past item. =/

I honestly don't think the staff has any idea how copyright work.
It took me almost a month to get the ticket sorted, and the first thing that was said to me was 'Generally once art is sold, it then belongs to the person who purchased it, regardless of whether it is submitted or not.'(Exact quote) ??? which is ?? not true. I'd have to have sold them the rights to the image, which I most certainly did not.

If it helps though, here is what I now have in my ToS now;
"You are agreeing to be a third party that is delivering the rights of the images from my possession to Subeta.net's possession."
(Then I have some terms about purchasing the rights if they want property of them, followed by)
"You may not edit my artwork in any way or have anyone else edit my artwork UNLESS you have purchased the rights from me."

Which staff has confirmed they will enforce as long as it's in my ToS and I provide my ToS to commissioners and get confirmation they read it.
(Even just adding to my form a checkbox that says they read it as proof for Staff to see. I suggest having people mail you the form OR confirming in mail where they cannot edit to back out later.)

Hope this helps you in the future, I'm sorry you're having problems now.
For some reason Subeta has been really siding with Commissioners lately and screwing Artists over =/