(no subject)

[ichigoneko33.livejournal.com]

I was just wondering about something. What happens to rejected sketches on commissions?

Let's say, you're doing a commission for a client. They don't like the first sketch and decide to go with a different theme/pose , so you redo it from scratch and they like the second. You finish the commission, and they upload both the commission and the rejected one.

I honestly don't know what's right and what's wrong in those situations. Does the sketch belong to them even though it's not what they went with? Is it the artist's property and therefore they're not allowed to post it? Can you reuse the sketch as long as the character looks different after? Did they pretty much get a free sketch out of it since they asked for a whole new pose/theme?

Comments

[maddogairpirate.livejournal.com]

I think if the extra free art's what they were holding out for they'd have gone past one failed sketch.

As long as they gave you credit and you didn't ask them not to, I don't see a problem with it. It was part of the process they paid for.

[oceandezignz.livejournal.com]

If they (they being the customer) reject the first sketch, they reject it. End of story. They don't want it they have 0 rights to it because they didn't -want- it. Therefore the sketch still belongs to the artist who drew it and in my opinion rejected sketches are like fertilizer. Wasted and unwanted product that can be used to make new.

[shukivengeance.livejournal.com]

Yes, very much this.

[kiriska.livejournal.com]

This, also.

[shukivengeance.livejournal.com]

If a sketch is rejected it's not theirs because they didn't pay for it. What they paid for was the final product of what they approve.

Thankfully I haven't really had picky people like this who want constant revisions (except for one and it got to the point where I cancelled it) but if I had to do this sort of thing on a regular basis I would keep the rejected sketches and maybe use the pose for something else. It was my time and effort after all.

[lurkerwisp.livejournal.com]

That's more or less what I do. If someone doesn't want a to continue a work from a sketch I've done and I like the sketch then the sketch is still mine to finish with different detail.

On the other hand, if I am the one to reject a sketch as a failure along the way I'll sometimes stuff it in the mail with the completed piece just to be rid of it. Maybe the commissioner will like it more than I did, and making them happy is what I aim for.

[seasonsofwither.livejournal.com]

I may be wrong about this, but I think that in a legal context, the sketch is the artistic property of the artist ALONE, as it's not what the commissioner paid for. You could tell the commissioner to take down the unfinished sketch. Anyone with a better understanding can feel free to correct me on this.

However, from a personal stand point, I feel that anything that results from a commission should go to the commissioner anyway if they so wish, final product or not, even if it's just thumbnail sketches or something. I wouldn't hurt me any, I guess, is how I see it.

Because you created the sketch, and regardless of whether you and the commissioner feel it was paid for, I would say yes, you can reuse and alter the original sketch. It belongs to YOU.

[obsidianwolfess.livejournal.com]

It depends on what your terms and conditions are. Some artists charge PER revision. Ie, if you don't like the first sketch idea, you can pay $5 for a new idea/theme. In that case, you aren't being ripped off. Other artists allow one free revision, then charge extra. Still other artists revise over and over until someone is happy. It all depends on what you feel comfortable doing, really.

[mandyseley.livejournal.com]

On these "unclear" issues, where both sides have a bit of sense to them and the legality isn't cut and dry, I always recommend deciding how YOU want to handle it and putting that in your Terms of Service. That takes away the argument altogether by making customers who want to do business with you agree ahead of time that they'll play by your rules if these situations arise.

So if you're okay with the commissioner getting to keep a certain number of rejected sketches, or if (like me) you think any rejection - be it a sketch or the whole commission - means that it becomes your property to do with as you please, write it down clearly and make sure they understand it from the get go.

[starchildebrite.livejournal.com]

I watermark all my works in progress just in case this happens. I always make sure to get payment up front too, and if somebody asks for more than three sketches, I start charging extra.

Any scrapped sketches I tend to finish for personal works. If I see the rejected sketches uploaded, I ask people kindly to take them down.

[zareonianwolf.livejournal.com]

This, to a T.

[kriscynical.livejournal.com]

Every progress sketch and screen cap I send my clients is low res and has "SAMPLE" written across it like a watermark. That way they cannot post it without it being obvious they shouldn't have.

[shinigamigirl.livejournal.com]

This has happened to me only once (the sketch being outright rejected - it just did not fit the format the client needed it to be in) and he told me to go ahead and just reuse it for something else, so there was no problem there. But I would be put off if someone rejected a sketch and then went ahead and posted it. It's like they're getting free art. I understand redoing a sketch if the commissioner dislikes it, but obviously they liked it enough in this case to post it. :/

Now, I know that sometimes sketches get rejected not because someone doesn't like them, but simply because the person wants something different. But then if they're going to use the sketch as well, they should pay for it on top of the commission price.

To come back to what I first said, I think it's 100% OK to reuse a rejected sketch for something else if you change the character. But it's also polite to let the commissioner know and give them the option of keeping it.

[bonegrind.livejournal.com]

I wouldn't be happy if they posted a rejected sketch since if I like it enough myself(and, i won't show my commissioner a sketch until i personally like it), I reuse it for someone else.

[chronidu.livejournal.com]

If they reject it, they have no rights to the old sketch unless they paid for it separately from the finished piece.

And even then the art is always yours unless they paid for the rights to it.

[solalia.livejournal.com]

This is how I operate:

If a sketch is rejected, the client is saying they don't want that. They don't have any right to it, it's not theirs and I can do whatever I want with it at that point.

If they want more than one piece of art, they must pay for every piece, including sketches. If they reject a sketch and then want it back later, they have to pay me for both the finished painting and the rejected sketch.

I only re-sketch once. If they aren't happy with the corrections I've made the second time, and they want me to change the theme, pose and other major components of the image, they must pay if they want it re-sketched again. I've spent a lot of hours on sketches for one client in particular just to have them reject it over and over and want something totally different later. The same client even approved a sketch, and then once I had started shading and coloring it, she wanted me to re-sketch it again.

Some people don't have boundaries and think that since they've paid you they're entitled to ask for whatever they want. You have to set boundaries sometimes, and I think you're in one of those situations. Good luck!

[ichigoneko33.livejournal.com]

Everyone's been very helpful and I do know what to do though!

I have one more question though. What do you do if someone rejects a sketch, you redo it, then they reject that one and say they want to use the old sketch?

I personally say in my Terms of Service that if sketches are redone, I will not go back to the other ones, but I'm not sure if that's ok or not.

[draken-art.livejournal.com]

I shared this with my Dev Art folks in my journal so as to perhaps tag someone who is a lawyer in such matters? Networking fun!
http://halfbreed.deviantart.com/journal/33680398/

~~~~~~~~~~~~

My thoughts. One thing I think a lot of people are over looking, especially in the "drawing a character not your own" areas is this...

It's technically a derivative work.
http://en.wikipedia.org/wiki/Derivative_work


http://www.copyright.gov/title17/92chap1.html
"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.


Also Publication (which includes posting it in journals, websites, or otherwise).
" “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.""


And this:
"§ 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."


Which... I don't easily read legalease but the work done (the sketch) is yours. However you cannot sell it (profit) if the object is someone else's character without permission from them.

they cannot display said works without your permission because the art is yours, even if the character is theirs.

because in your contract with them they gave you the rights to use their property in order to create the work. So the work they /PAID/ for is what they get UNLESS your contract says otherwise.


That's how I understand it.

[shukivengeance.livejournal.com]

Yeah re-selling a sketch of someone else's character is bad form (as I recall there was a post here a little while ago where someone commissioned an artist for a sketch, then when they didn't want to pay extra to have the sketch mailed to them the artist wanted to auction it off) but I don't see anything wrong with re-using a rejected sketch for another commission. You'd be changing it to look like the new client's character if they wanted it and only using the pose really.

[petercat.livejournal.com]

I have noticed, in the course of tallying the sales in the Anthrocon Art Show which involves entering the data from all the bid sheets, that at least one artist has sold a number of such "approval sketches" to whoever wants to bid on them. As others have mentioned, the specifics should be addressed in the Terms of Service.

[xcourtkneex.livejournal.com]

I usually let people have their progress sketches, but it's almost always because it's something that I don't intend to use for another piece. Watermarking your sketches for approval is an excellent idea. Then, if they want to upload or use the drawing in another way, they would have to ask you to remove your watermark. This practice also keeps you from having to create an awkward situation later if you decide you'd rather keep the sketch for yourself.

Actually, I never understood why people upload the pictures they commissioned from someone to art communities like dA and FA anyway. It seems silly and wrong, even if they do give the artist credit in the description. I've seen a ton of comments on pieces that clearly state that they were commissioned by so-and-so, praising the uploader for their sudden artistic breakthrough XD I might feel this way because when I do commissions, I generally ask the commissioner for permission to post the art I did for them to my own sites and community pages, since there's a chance that their commission could be very personal to them. I dunno, I think it's just a personal pet peeve of mine :\

Ugh, I always write comment-novels :c

[draken-art.livejournal.com]

Generally I state up front that I retain publication rights, because that also covers posting them to my website's portfolio, or printing them into a physical portfolio.

I don't mind people putting them up in /personal/ galleries showing off the art work they've bought or received, as long as attribution is given to me and a link to my stuff is posted so others can easily find me. However posting to hings like FA and devart when it's not theirs? This is specifically against the TOS of devart (or so I believe, based on the last time I read the novel of a TOS >.< urgh). Many Gallery sites are like that, that if the art work is NOT your creation you are NOT allowed to post it.

[draken-art.livejournal.com]

Another helpful link.. and I got at least one response from someone who deals with copyright details all the time..

http://www.whatiscopyright.org/

Is what she offered, and is a site that breaks down copyright for those who don't speak legalese! :)

Point being is the contention of derivative works.

White Wolf Gaming Studios is notorious for "claiming" other stuff that people do or create that is part of //THEIR// game world. They claim it as a derivative work. So all those werewolf sketches of your character with "garou glyphs" as per what White Wolf created... yeah that belongs to White Wolf. They /will/ sue you if you make money on it.

Like selling sketches at cons or faires.

Unless you have their permission to do so, which they give out rarely.

Which is why the movie Underworld got sued by them and was settled out of court.

Just for a Real World Example.


So tangent aside.....

TOS is vital, and zumfaerie on devart states that the TOS needs to spell out: who owns the characters, design ideas, prelim sketches, and the finished work - as well as what //rights// are being sold as well. Artists can sell limited or all rights to their work and most artists /reserve/ the actual rights to any work /not paid for/ or used..... //unless// the character is not the artist's.

Then it gets into the sticky and truely requires clear cut terms in the contract.

And I was curious if sketches, like ones in progress/transitional/unfinished, and not "final sketches" (big difference) were covered by copyrights - as the last I understood only /finished works/ were considered under copyright protection.

However zumfaerie states that sketches are protected under copyrights.

(Mostly paraphrased from the journal comment).

But I want people to understand.... that most of not all character comission sketches of someone else's character are derivatives. You are getting the permission from the persona paying you to create something using their character through the request for art.

So we need to be very clear on who owns what. As for charging? Yeah you need to clarify who owns what in regards to the charge and what it covers... otherwise the payee may believe that they have rights to that sketch. if you charge /for the worl and effort/ to redo, you must state that clearly. If they are not going to get the older sketch or the new sketch, but rather are paying for a ompleted piece, yuo must state that clearly. otherwise they might believe they are owed the sketch.

:)

[lilenth.livejournal.com]

http://www.whatiscopyright.org/ contains an error in it's understanding of copyright laws, the so-called "poor mans copyright" of mailing a copy of the work to get it date stamped is inadmissible in court because it can be falsified easily.

Ergo, it is not a way to establish copyright, a better way would be using a notary with witnesses or to register the work with the copyright office.

[grygon.livejournal.com]

On my end getting shots for my art requires a ton of effort since I don't have a scanner. So for sketches for approval/discussion with my clients are always really crappy pictures, nothing they'd hold out for really since they are quick snap shots with my camera and rarely large enough to do anything with aside from being clear enough so they can provide me feedback.

[charlie-kit.livejournal.com]

From a commissioner's point of view...if I have a sketch that I ask for a revised sketch from, I typically keep that original sketch. About the only time I ever post a WIP sketch from a commission is when it's different enough but also rather interesting to post on its own - giving credit to the artist of course.

[myenia.livejournal.com]

I think they are in the wrong- if they'd like BOTH sketches (one of course came with the full color commission), they need to pay for a second sketch commission. Though, that's how I handle it from the beginning...no complete resketches without paying for a second sketch.

If they aren't willing to pay for a commission AND sketch commission, then you can ask them to take it down and re-use the sketch for something else. Regardless of whether it was them being indecisive, or you not doing quite what they described, the point is they paid for a colored commission and that is it. You don't get two images out of that, you get one (possibly in sketch and color form, but only ONE).

[lilenth.livejournal.com]

Technically they don't own the second at all, it's merely a by product of the creation process and belongs to the artist who can rework it as they want to.

Personally though, I'd let them have it for display only, I can always alter the original as I want, it's merely a byproduct until I make it over and thus it probably isn't worth the fuss or arguments that might happen if I ask them to take it down.

Basically while you're in the right to say "no, you can't have that, it's a rejected sketch, it belongs to me, take it down", in reality, it's not going to cause any harm for them to repost a secondary sketch so long as they credit you and it keeps the customer sweet.

So long as they don't try to take advantage or demand multiple redos and demand to get all the sketches, I wouldn't sweat it.

Characters

[draken-art.livejournal.com]

Okay there seems to be a serious descrepency between whether or not a character can be copyrighted.

I say it is, someone else says no. Both of us have very good points, and unless we get a copyright lawyer in here I don't think anyone is going to win on this end of things.

However I found some interesting if older articles that make me wonder a bit.

http://www.publaw.com/graphical.html (Copyright as pertaining to graphical characters.)

http://www.publaw.com/fiction.html (Fictional characters cannot be copyrighted as easily as graphical characters).

However I state that these are older articles, though they do bring up some very interesting concepts. If anything it's worth researching.

[thaily.livejournal.com]

All the art belongs to the artist unless they agreed differently in advance. Sometimes the customer gets the original but the rights and such still belong to the artist. Often the artist will allow their customer to repost the finished commission, if they'd allow the customer to repost all drafts is up to the artist; They still retain the rights, also those of rejected sketches, and the customer usually only pays for 1 commission.

I don't blame the artist if they finish a rejected sketch; if you give a customer a choice of sketches they'll usually pick the artist's least favorite :P

[synnabar.livejournal.com]

I work a little differently; many times (though not always) for larger commissions I will do a number of different sketches (in varying degrees of detail, sometimes thumbnails up to more finished sketches), and I let the client choose one they like to be completed. Then I send them the final art as well as the sketches, as a sort of bonus.

However, at my 9-5 job, that's the way I work most of the time anyway: I present The Bosses with a number of different variations on a theme, and they choose one to develop further... it's just the way it's done here, so it's not unusual for me. I understand things vary for everyone, though, and I can understand wanting to be compensated for the extra work, too! Definitely keep the rejected versions if you want to.

Mostly I just wanted to explain my POV in case people see others uploading a number of different sketches by me in relation to a commissioned piece - I'm not being ripped off or anything. :)