Question related to the Syrae thread.

[torinir2.livejournal.com]

With the Syrae thread devolving into a copyright war of words, I figured it was time ask this question. I separated it from the Syrae thread since it might be useful for both artists and commissioners to take note of this discussion.

What are the rules of the land as far as commissioned artwork involving the commissioner's character(s)? I would assume that the commissioner has some recourse when dealing with works involving his/her characters, and the artist has some recourse available by default, but who has the final say as to who can do what with the finished product, in terms of alterations, etc? What kind of timeframe should a commissioner hold for approaching the artist for changes, and when would it be a DIY case?

I'm not talking about generic artwork commissions, I'm speaking of commissions involving characters whose "existence" predates the artwork being commissioned.

Comments

[sigilgoat.livejournal.com]

I've got a clause in my TOS that states that changes need to go through me first.

If i wanted to edit some work I got commissioned by someone else, I would ask first, but if it went more than a week and it was a minor change, I'd probably do it myself.

[msmanuscript.livejournal.com]

Contact first, do it yourself second. Even if it's small. If it's really small, and they don't say anything, do it yourself. If it's big, wait a while longer. More so when you know it's a busy time like the holidays.

[thaily.livejournal.com]

Unless you have agreed differently with the artist, they retain the rights to the finished image. Regardless of the characters depicted therein, unless you own a trademark or registered copyright.

The time frame depends, I think you can always ask an artist about changes. Asking doesn't hurt, provided the artist is a normal person. If the change is small and the artist is nice the odds are good that they'll help you out. Otherwise they might ask for compensation for the additional work.

[sabarika.livejournal.com]

"Regardless of the characters depicted therein, unless you own a trademark or registered copyright."
Quoting for truth, a lot of artists seem to believe they legally "own" their characters..and can to a degree depending on situation, but to truly "OWN" your design you should copyright or trademark it (then you can pursue court battles for art used w/your char improperly, like how Disney can with their characters, etc).

[thaily.livejournal.com]

Personally I'd love to know more about registering a character if anyone here knows more about this.

[torinir2.livejournal.com]

In my case, I've written a story about my character before getting some images done. But others may have reference sheets for their characters, etc. already available.

Those generate copyright to the character creator. It does not require registration for a work to be copyrighted. Registration just makes defending the copyright easier. You've heard of "postmark copyright"?

[thaily.livejournal.com]

You own the copyright to the stories, but not the characters. You really do need to get those registered. For example, Ahkahna had her Taschevah registered, which apparently involved a lot of submitting character sheets so they can make sure the characters are actually unique compared to other copyrighted characters.

And yes, it's called the "poor man's copyright" and is not admissible in American courts. If you have to take someone to court over a copyright, it needs to be registered beforehand, although you do own the copyright to the original work from the moment you create it.

[nambroth.livejournal.com]

"Postmark copyright" or "poor man's copyright" Is nothing more than a feel good measure and will not hold in any court of law. It's a fallacy.

Characters cannot be copyrighted. Ideas cannot be copyrighted. You can trademark a character if it is unique and somehow represents your company or your product. Trademark, unlike copyright, requires registration and active defense of your trademark. For example, Mickey Mouse is a registered trademark of the Disney corporation... Mickey is (one of many) visual symbols/characters that represents Disney and their products. Disney, according to law, must actively defend their copyright by pursuing any that abuse it.

[puppetmaker40.livejournal.com]

Then I see it as "Work for Hire". Most of my professional career has been work for hire. I am given a sum of money to create for the buyer what they have requested. I have also been on the other end of the stick hiring artists to create covers for books for publication. Once I have turned over the piece, I no longer have a say in what is done with it.

[thaily.livejournal.com]

Might I ask as to the prices of WFH? I imagine it's a bit more than the averga $25 commission.

[torinir2.livejournal.com]

A commission IS a work for hire. o_O

The commissioner hires the artist to create an image for them as a one time thing. o_O

[puppetmaker40.livejournal.com]

It is negotiated between the buyer and the seller and it could be as little as 25. I have seen simple computer graphics go for that but it tends to be part of a batch (like 100).

Look let's take art out of the equation for a second. Say that someone hires a contractor to redo their bathroom in their house according to their wishes. After the whole thing is done, they decide that they don't like the faucet that was installed, so they go out and but another one and have someone else install it. Does the contractor have say in the final product? No, it is not in the purview of the contractor but it is in the owner.

When an artist does a comic for DC or Marvel (work for hire) do they then own the character or have a say in how the art is going to be be used? No, all they have is the original artwork to sell if they wish to (and that is a recent development in the industry). I can't tell you the number of comic book artists that have been surprised to see an image that they created being used for a t-shirt image or a poster. They do get a little compensation for the use of the image but the image itself is property of the copyright owner (be it Marvel, DC or Alan Moore)

Edited because my default Icon has not been cleared by the artist for anything but my journal.

[duskychaos.livejournal.com]

I was told to avoid Work For Hire when possible, as you will NOT be able to make any derivative works of your original artwork thereafter.

[ursulav.livejournal.com]

This is generally how I proceed as well--you hired me to create a work, the work is then yours. I might post it on my website, but I generally wouldn't resell the image as a print, unless we've got an elaborate contract saying that I get to do so, or that you're licensing exclusive published use of the image but I retain the copyright (as in some contracts I do as a children's book author.) (The other exception is when somebody asks me to do a sketch or something with one of MY characters, in which case, I'd retain all rights to my character, as noted below, and I would be rather miffed if they started selling the image for something.)

Gift art, on the other hand, I own, because money did not change hands and there was no contract between us. (I still feel weird about making money on stuff I did as a gift, so I generally donate the proceeds from those print sales to charity, if I sell prints at ALL, but that's a PURELY personal hang-up with no legal basis whatsoever and should not be considered to apply to anybody other than me.)

I personally would assume that a character is copyright their creator, and would not sell artwork involving someone else's character without prior permission from the owner of the character.

Having said all THAT, this is solely what you get when you commission ME. It should not be assumed to apply to all creators. I've done a lot of work for hire, I have done so for years for various jobs, and on commissions, that's just what makes sense for me, because frankly? Odds are good I don't WANT the rights to the final images, it's highly specific to the commissioner, and of no use to me whatsoever--and in some cases, I'd feel really damn weird re-selling it, since people sometimes commission stuff with serious emotional importance to them.

However, I am also careful when, for example, auctioning off a commission to include a note saying that I retain the rights to display the image and to make and sell prints, and if this is a problem, we can discuss it. It has never once come up as a problem, and I've only wanted to make prints maybe...three, four times? in fifteen years?...but the line is there, just in case.

I also believe that the onus is on the artist to make sure the commissioner understands clearly what they are getting for their money, and if they are not doing a work for hire arrangement, they should make this clear to the commissioner, who may think they are buying something totally different. This is only good customer relations.

[supertablebunny.livejournal.com]

To change the actual art created? I'd consult the artist first before doing anything to the work.

[higginsdragon.livejournal.com]

Legally, an artist has all rights to the artwork unless otherwise specified by contract, and it cannot be modified, distributed, destroyed, and in some cases even resold without their permission. Artists generally have the last say with artwork.

Socially, an artist will be viewed as a jerk if they do something without the character creator's permission or goes against their wishes. :)


I've found Legal Guide for the Visual Artist by Tad Crawford a useful reference. Includes a lot of example contracts and cases.

[chronovox.livejournal.com]

I would also recommend the Graphic Artists Guild Handbook of Pricing and Ethical Guidelines. It contains basically everything you need to know to make it as a freelance artist / designer.

[the-lest.livejournal.com]

I agree with what most other people are saying. However, in the case of fursuits and other costumes, I say alterations should be the responsibility of the commissioner because a) the distance between them and the suit maker and b) suits are more subject to wear and tear.

I know that wasn't what you were asking, but thought it worth mentioning.

[the-lest.livejournal.com]

Also plushies, jewelry, and other things of that nature (eg. things that are not just images).

[bladespark.livejournal.com]

Yeah, I agree with you. But I've seen fursuit artists pitch a fit over the customer altering their work, in pretty much the same way that the fit was pitched over changing the nose color in that previous post. And over pretty much the same kind of changes too.

No matter what you do, and what your policies are, and what sane people agree is the way things should be, some people will always be crazy and possessive about their art. Just look at the several instances that have popped up in this community where an artist has tried to claim that the customer can't sell originals, for example, which is just completely cracked any way you look at it.

[stormrunner1981.livejournal.com]

Personally, as long as the actual line art is not modified I won't say much. Add, take away or modify colors to your liking...IF you are the one that commissioned me.

But again that is me.

[lilenth.livejournal.com]

The commissioner would only have recourse if their characters were trademarked/copyrighted as part of a larger whole.

Generally the artist has final say unless it's specified as work for hire or the rights are sold to the customer (which is usually a lot more expensive than many commissioners are willing to pay for).

I'd say that if there's an issue with a piece, you should speak to the artist as soon as possible. Most artists will do minor tweaks, though complete redos will probably cost you. Each artist's mileage on changes varies and you should alway check their policy/contract terms before commissioning them.

[sdkitsune.livejournal.com]

Personally, I see it as this way:

There are plenty of Copyright laws. Everyone else has mentioned them, so there's no use repeating them.

But more importantly, who is stopping you from doing what you want to do? No one. Yes, you could offend an artist. Yes, you can tarnish your reputation in the furry fan-base (for example, by ending up on this community). But 99% of the time, there are no legal consequences to doing what you want with the art that's in your hand.

Now I know a few of you are bouncing around in your seats right now because "this is wrong." But you have to be logical in these sorts of situations. If a customer wants to maintain a good relationship with the artist (and with the fandom in general), it's a good idea to go through the artist and ask them what they think, no matter the time span (unless said artists is no longer part of the fandom). But there is no police officer that's going to bust through your door. And quite honestly, if a court case arises based over a $25 furry commission, the judge is going to laugh you out of the courtroom.

By posting modified work, you may violate the TOS's of websites, causing the work to be removed. So make sure to check those before doing something that's potentially against the rules.

And also, DO NOT ASSUME ANYTHING. If you are an artists, spell things out for your customers. Not everyone has a PhD in copyright law. SPELL OUT "no editing, no reposting, etc etc" if you don't want that to happen. Tossing out the "common sense" excuse for someone who may have never gotten a commission before is a waste of time. And if a customer is dealing with an artist with a terrible attitude, then that's what communities like this are about. Learn BEFORE you pay who to avoid.

[crssafox.livejournal.com]

It also depends, IMO, on the scale of editing. Cropping artwork and using it as an LJ/FA icon? Pssh. Whatever, I could care less. But something a little more outrageous - say, photoshopping clothes off of a character when I don't do R-rated work, and posting it all over for people to see the *gasp* rare nudie pic (that I never did in the first place) would be -entirely- different and potentially harmful to the artist's reputation.

[life-on-m.livejournal.com]

Personally... I have final say on my characters.

I like my characters, and like them to be represented in manners I feel respects them. For that reason I tend to be very nervous around 'gift art'.

But as I said, that's just my personal leanings.