(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]

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.

[shukivengeance.livejournal.com]

Yes, very much this.

[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.

[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.

[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.

[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.

[shukivengeance.livejournal.com]

Oh yeah there have been occasions where I wasnt happy with the sketch so I let the commissioner keep it if they wanted, but if they are the one to reject it I'd rather not have it go to waste.

[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.

[kiriska.livejournal.com]

This, also.

[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!

[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.

[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.

[solalia.livejournal.com]

I would charge them for the additional sketch. That's not an issue of you messed up and interpreted what they were asking for incorrectly. That's an issue of they can't make up their mind and should have to pay you for both sketches since they are more or less inconveniencing you by being fickle. Unless you want to use the sketch they no longer want. If you don't, then charge them, if you do, stash it for later.

If you don't want to go back to the old sketch that's totally up to you and your right to put your foot down in that respect. I can understand not wanting to go back to something you've already moved on from. Sometimes it's hard to get that energy back for that piece. So I see where you're coming from on that and respect it, a client may not understand and you might have to explain to them that mentally you've moved on and once you've dismissed a piece, it's hard to get the motivation back.

[ichigoneko33.livejournal.com]

Thank you ^^

[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]

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.

:)

[draken-art.livejournal.com]

Sound like a broken record if you have to.

"It's in my Terms of Service, by contracting me you have agreed to them. I'm sorry if you've changed your mind, but these are the policies."

So you know how often I heard that sort of line from my bank? :P

"I'm sorry but it's our policy and by banking with us you have agreed to these terms. I cannot change them or make an exception."