Redistribution of Original Commission

[tenzanosumi.livejournal.com]

Recently, I've had an issue with Razz (razzek on FA and DA)regarding a commissioned piece back in January. This was a piece for a fundraiser of a mutual friend of both the artist and me. She completes the piece and via notes tells me it's finished; it's subsequently uploaded to FA. I'm quite satisfied with the piece and the work she put into it. As luck would have it, both of our lives become crazy and hectic.

Fast-forward to July 12, When Razz notifies users that old commissions would be going into scrap-bags for re-sale. I contacted Razz to have her hold my commission. Unfortunately, I didn't follow up until her "last call" journal on July 23. I contacted her again and pointed her out to the piece she did for me. Much to my horror, she apologized and notified me that the piece had already been sold. She also notified me that she had made "several journals" about needing shipping information and she assumed that I did not want the original. This was only partially true: She did make one additional journal on January 19, requesting my shipping information. I missed this particular journal and this led on to my piece being sold to "a good home" — yet she cannot remember who obtained this particular piece.

My grievances are these:

1. If you do a piece using real media, unless otherwise stated, it is presumed that the buyer wants this piece. I'm not thrilled about having a product that I paid for being re-purchased by someone else. Yes, the money did indeed go to the target of the fundraiser. However, I feel like that I've been "double dipped" in that the artist sold the original piece. It's my feeling that under no circumstances should a paid-for and approved original be re-sold by the artist unless there's consent to do so otherwise.

2. I try to be understanding of situations. Sometimes things can't be shipped right away. Given that this artist re-located cross-country with her husband, I figured that my commission was the least of her worries and didn't press the matter — I'm no stranger to playing the waiting game. Plus, I had recently re-located across state and since then things haven't been that especially good for me either.

3. If the artist was indeed ready for me to provide shipping information, then she should have contacted me via a note or shout — something that's directly addressed to me. If she had done that and I still left no information, then she'd have a much stronger case of me simply defaulting on the original piece. Sometimes we miss journals. As much as she shifts the blame onto me for not notifying her, I shift the exact same blame onto her for not noting me.

4. This is more of an auxiliary sort of complaint, but do not attribute "disability" as means of absolving yourself of professional responsibility. So that we're all clear, the artist is legitimately disabled and I'm not mocking/insulting her for it.

I earnestly hope that there can be some resolution in this matter.

First of all, here's the piece in question:

http://www.furaffinity.net/view/3240540/ (SFW)

Next, the three journals notifying buyers about art:

http://www.furaffinity.net/journal/1155011/ (January 19, the one I missed)
http://www.furaffinity.net/journal/1547998/ (July 12, this is the first note I sent)
http://www.furaffinity.net/journal/1578718/ (July 23, most recent)

Finally, the exchange of notes between Razz and me. Excuse the large dimensions, but I wanted legibility. On the last note, there are gaps because I've erased the identities of third-parties that aren't involved in the transaction itself.

http://s793.photobucket.com/albums/yy219/the10za/?action=view¤t=razz.png


EDIT: The artist and I have worked out a suitable agreement. We both admit fault for our communication over this transaction and we shall take this experience to be a very teachable moment on how artists and buyers should be on the same page from the very start of a transaction.

Comments

[collie-fluff.livejournal.com]

I feel the same way when it comes to original commissions. I feel that if I purchase an original commission of my character, I feel that it shouldn't be resold unless I am asked (and frankly, I will not hesitate to say "Okay" if I am asked). Yes, the work is done by the artist, however the character is mine and I still hold some bit of a copyright.

I know I just opened up a shitstorm by posting that because "how dare I try to uphold my rights as a commissioner."

[kurenaipaladin.livejournal.com]

Characters cannot be copyrighted, only trademarked- and if your character is trademarked it must be consistantly defended. Is your character specific enough to seperate it from a real border collie? Is it consistantly drawn in a specific style (such as Mickey Mouse is?)?

As it is, the artist holds full copyright on any artwork they create unless the rights are sold to the commissioner for an agreed upon price. This does not mean "I paid 20 dollars for someone to draw this so I own the rights". Rights must be specifically purchased and no artist in their right mind will sell those for any small fee... especially when/if the work is intended to be redistributed and sold.

tl;dr: you need to negotiate ownership of the original peice ahead of time, make sure the artist knows you want the original shipped, and if you do not want prints, etc sold of the work you need to purchase rights and negotiate that specificially with the artist. Many people in the furry community, artists and buyers alike, are unaware of this.

[kurenaipaladin.livejournal.com]

"If you do a piece using real media, unless otherwise stated, it is presumed that the buyer wants this piece."

No, it is not. It is never "presumed". If you, as she has stated, did not indicate that you did want the original shipped, and if it was not specified by her that it would be, she is not required to ship the original. The notes between you and her indicate no such agreement, and therefore, you are really out of luck. She owes you nothing at all.

As the peice was purchased by someone at a convention, it is understandable that she does not know who purchased it- however, even if she did know, it really is not information that you have any right to.

On July 12th, how did you contact her? Did you contact her via FA note, email? Do you still have that? Was it listed as read? Also, was the peice sold BEFORE then?

[tenzanosumi.livejournal.com]

I contacted her on via the FA Note system. In that attached image, there's a total of 8 notes: her replies to my original. I definitively do not know that it was sold prior to July 12, though context from subsequent notes indicates this is the case.

[fatkraken.livejournal.com]

I think it's a communication problem. You assumed you had bought the piece (s in the bit of paper with marker ink on it), she assumed you had not. I do think that if she would have been willing to ship it to you at cost she was wrong not to give you this option, but if you had not negotiated ownership of the piece beforehand and were happy with just the digital image then she can pretty much do as she pleases with the original

[maryseif.livejournal.com]

=( It makes me so sad to see someone I used to RP with posted in this community.

Commenting on the Journal Portion of this Situation

[sekhmet.livejournal.com]

One thing I will say is that as an artist I never expect people to read every single journal I post, or always check for updates. It's pretty easy to miss journals.
I think she should have at least contacted all the people in question by e-mail to make really sure.

[purpule.livejournal.com]

Legalities aside, I think there's a bit of an ethics issue with selling on artwork made for other people/their characters.

I don't know how I'd feel about it so much anymore, but if I'd paid for a piece, I'd want the original. However, if I didn't pay to have it sent to me, I suppose it is up to the artist to do as they wish with it, it's just... it does feel very iffy to sell on artwork of someone elses characters and such, but I'm not as adamant that it's absolutely wrong as I used to be.

[kriscynical.livejournal.com]

When a company hires an illustrator to do, say, an editorial illustration for an article within their company, they pay to have exclusive usage rights for a year or so at additional cost of having the image produced. After the usage rights the company purchased expire, the illustrator is absolutely free to re-sell the artwork to any other company/publication which might want to use it. All illustrators do this if the copyright has not been permanently purchased at the time the piece is created; it's another way we make money.

The only way a company can get exclusive rights to an image for all time is to do a buyout, which is the purchase of the complete rights of that image. It's standard practice and by no means seen as an ethics violation.

[x-thor.livejournal.com]

Dude, one of my biggest peeves is when an artist just expects customers to read every journal they post. If it's something important like shipping information needed, she should have just noted/emailed you.

Lazy...

[frazzled-niya.livejournal.com]

this

[chronidu.livejournal.com]

Actually, technically, the piece belongs to the artist unless you explicitly paid and contracted to receive and own the original. They have all the right to sell it.

But I do agree in that I always find it shady to not offer it to the commissioner right off the bat in the first place.

[taasla.livejournal.com]

While it irks me that someone could sell commissioned work that I paid for, it still is within the artist's rights. The only thing here that is truly annoying is that she expects everyone to read her journals. I come home to 30+ journals a day from work. There's no way I am going to read them all, and sometimes I miss journals from people I actually do want to keep track of.

[kayfox.livejournal.com]

30? I think I average about 170 each day.

No, I dont read all of them, I dont even read 10% of them.

[blackberrypie.livejournal.com]

That kinda sucks, but the artist had the right to do so.

What would have been better for them to do would have been to note, email, or shout to you that they wanted to offer it to you for purchase (or if shipping the original was included) first before offering it to someone else. That was a bit unfair in my eyes. But again, its their right to do so either way. D:

[shukivengeance.livejournal.com]

Regardless of copyright laws or whatever it's still pretty shitty to re-sell art that you were paid to create in the first place. I know it sounds wonderful to get money twice for the same drawing but there really is no need to shaft your customers simply because you can.

[grygon.livejournal.com]

How is it shitty? It IS the artist's image, to do with as she likes unless there was a written contract involved stating otherwise.

[grygon.livejournal.com]

I guess next time buy the original and pay for it to be shipped right off the bat? I dunno, to me this screams irresponsible of YOU, not the artist. Doesn't sound like you made it clear during the commission process that you even wanted the original, you just assumed that it was to be presumed. NEVER assume or presume things. Especially after so much time has passed. Not all artists keep very good records so maybe she lost your contact info, cause sounds like she made every attempt she could to contact people with her journals.

[tenzanosumi.livejournal.com]

No need for the anger caps.

The attempts to contact were just as spread out as my own inquiries: One in January, two in July. When I see this journal pop up a couple of weeks back asking people to claim their commissions, I immediately took notice of that. As far as wanting the original, I never had an instance until now where someone I've commissioned a real media piece that didn't ask for shipping information. Also, bear in mind that I didn't want to seem petulant by asking "Hey, could you ship my commission while you're re-locating across country?" Part of the reason I'm displeased is she did a fair deal of presumption herself — assuming that everyone read every single journal of hers.

[silverfalln.livejournal.com]

I'm another person that get's annoyed at artists who expect commissioners to read journals. Half the time, I don't read the journals on my watch list. I'm more apt to read them on dA when I can see part of the journal in preview, but FA? Nah. I just skip most of them. I really, really try to keep in contact when I have commissioners, and prefer to do so with email since notes get lost, or the site goes down... so on and so forth. I tend to open everything I want to look at at once, and sometimes... the wrong tab gets closed and I have no clue what I meant to look at. (I have VERY spotty memory.)

That said... They have a right to do whatever they want with an image they draw, unless the commissioner buys the rights. Ethically, I'd contact a commissioner before I did anything with it (prints, selling an original, etc), but I, and no other artist, is required to.

So.. yeah, artist did what they had rights to do, but should have worked a little harder at keeping in touch with a prospective buyer.

[the-lest.livejournal.com]

off topic, but how do you get DA journals to show a preview? I remember having that option a long time ago but I thought they got rid of it.

Sorry for random question.

[ocelotish]

Hmm... I can certainly understand why you're upset about the original getting sold off, but at the same time, it looks like the TOS mentions that the original isn't going to be held for you indefinitely. It seems like you didn't contact the artist about the original after it was done. I don't like the use of journals as a way to contact commissioners, but at the same time if it was in the TOS, that's what you agreed too. If she sold them after she warned you she would in her TOS, then that's fair game in my opinion. (Obviously if it wasn't in the TOS or if you asked about shipping previously, then that's a different story.)

Maybe you can ask her for a high quality print, or a high def file for a nice print? It might not be the original, but it might be a decent substitute.

[tenzanosumi.livejournal.com]

Here's the thing that bothers me about that little clause in her TOS. Namely that she's trying to apply it retroactively. In her own words she says "...my 'no hold' policy is the first thing mentioned on my price list on my main page (which has had that statement on it for over a month)." That meaning, at the time of purchase, it wasn't there — if it was, then she would have told me that it was there when I purchased it way back in January.

[pariahsdream.livejournal.com]

It sounds like to me you're both at fault, though I'm not holding the artist as much because it was within her rights to sell the original image. I think you should take this as a lesson learned and make sure you spell things out CLEARLY what you expect from the artist and not PRESUME anything about what they will and will not do. Communication is a two way street and while it might seem annoying to spell everything out, it saves trouble and heartache in the long run.

And no, the caps are not in anger, they're for emphasis.

[grygon.livejournal.com]

Well said.

BUT spelling everything out should not seem annoying. It should seem like clear communication. You don't know the artist and she doesn't know you AND it's a business transaction not an interview for a new friendship, lol.

And thanks for the nod to the caps. I love it when I get the "improper netiquette" speech from people who clearly have netiquette issues of their own.

[solalia.livejournal.com]

I find this to be incredibly unethical of her (and maybe even borderline criminal) and I can't believe that there are so many people defending her actions. Typically if a piece is commissioned in traditional media, from what I have experienced and observed, the commissioner gets the original. The artist can then go on to sell prints and do whatever with the image they want to, but the original should go to the commissioner. If you decide to sell it to someone else, you should refund the commissioner or offer them a different painting.

I also found the whole journal entry communication to be extremely unprofessional. E-mail your clients individually, even just send them all the same form letter, but geeze! Don't assume the world revolves around you and we're all dying to read your journal entries!

I'm behind the commissioner 100% on this one. I would ask for another painting in its place. You have every right to do so.

I also find it sickening that you hired her as part of a fundraiser, yet she turned around and sold your painting again, presumably for personal gain. If she gave the money to the fundraiser as well, then that's definitely less disgusting but not any less ethical.

[cesarin.livejournal.com]

I fully agree with you, this is not a thing about "copyright" but about the paid work that she was asked to do, in wich was the real media artwork piece.
if she resold it, she's selling something that its not from her anymore.

[uozlulu.livejournal.com]

I think next time you get a commission like this, ask for them to ship the original to you and then pay extra for that if it's not included in the commission price. That way you can avoid a similar situation of miscommunication.

[tenzanosumi.livejournal.com]

A little late to the party and off-topic, but BUCK-TICK is just one of those bands that's managed to hold itself oh-so-well over the decades :)

[ocelotish]

Just so that it doesn't get buried in a comment thread, there is the commission information from deviantart journal dated December 15, 2009 stating that without shipping, originals will be resold (though I don't think edits show up on da journals).

http://razzek.deviantart.com/journal/26197684/

[stormslegacy.livejournal.com]

good find =3 That definitely proves the artist is in the right in my eyes.

I have to agree with the comments above explaining that it's the artist's right to resell. If it's in the TOS, I think that journals are an OK way of communicating with commissioners, considering giving them first crack at the originals is a courtesy.

[serena-kitty.livejournal.com]

i dunno my opinion if he paid for it "the original" it belongs to him....i found what she did to be a bit unprofessional IMO as an artist my self....

if i were in that artists situation, i would have kept record of all who commissioned me and personally contacted them my self....not type out a journal expecting people to read it... if anyone is like me, you have a crap ton of submissions to go through (art and journal alike) you dont want to take the time to read ALL the potentially hundreds of journals subbmitted. They're pretty much clutter in your submissions page as far as i'm concerned, i just delete them unless its a specific person i want to read about....

she should have done the responsible thing and personally messaged her customers about what she was going to do, and if they didn't reply or if they said they didnt care...THEN go ahead and sell them as she pleased.

[leahtaur.livejournal.com]

But that's the thing... when you commission an artist, you're paying for their time, labour, skill and sometimes materials. But not the original. If they include the original in the cost, that's their choice, but it's not what they're legally required to give you.

[kayla-la.livejournal.com]

Reign it in a bit, people. It's perfectly fine to disagree with each other, but this is a bit of a silly thing to be insulting each other over. Restrain yourselves.

[kriscynical.livejournal.com]

I think it also needs to be said that people shouldn't be saying the artist is doing something "unethical" or "criminal" when they are acting 100% within their legal rights as an artist. Some of this is bordering on libel against the artist and it just isn't right. :/

[angeling.livejournal.com]

Whoa, so much rage in this entry.

After reading through most of what's been said, I think this is mostly an issue of miscommunication - both sides at fault depending on the point of view, neither side at fault depending on the point of view...

There's no arguing the legality of what was done, and the ethics of it are fully debatable (a matter of opinion, really, since this isn't the type of thing that's set in stone). I personally wouldn't sell the original piece without contacting the commissioner, but that is, again, personal.

I can understand why you're discontent, but unfortunately there is very little that can be done at this point, especially given the legality of the artist's actions. I'd take it as a lesson to, if commissioning another trad piece, make absolutely sure you and the artist are on the same page, even if it means bothering them with a lot of questions. Ask if you're guaranteed to get the original, if you need to pay extra for it, etc etc before you pay. That way if you're not kosher with the artist's terms you can bow out before this repeats itself.

(Unhelpful comment, I know, but I wanted to get my $0.02 in anyway, even if I'm a little late to the party.)

[thaily.livejournal.com]

I also assume that with real media, the buyer will want the original and I ship it unless I explicitly stated that I won't (for example with sketch commissions, which I prefer to do in my sketchbook and 15 euros does not cover me transferring it to new paper etc.)

BUT, unless it's explicitly stated otherwise, commissions pay for labor and not the physical item nor the rights. Shipping the original or allowing someone to repost their commissions is a courtesy unless the customer pays for it.

I'm not sure why she didn't ask you for your address, or why you didn't send it with the payment or directly after the commission was finished, but artists are legally allowed to resell originals.

This sounds like an unfortunate series of mis-communications if anything, and I understand you're upset, but I'm not sure it's worth pursuing this further. Especially to the point of contacting the person who bought it, who is probably an unwitting party.

[razzek.livejournal.com]

Tenza, I have just sent you a note via FA. I've had a really strong emotional reaction to this situation, but I would like to do what I can to make amends.

[grygon.livejournal.com]

Wow, hon, that is more than generous of you. You really don't need to do a thing but I applaud you for doing it anyway, I hope your offer is accepted graciously.

[lilenth.livejournal.com]

Can I just point out something everyone has overlooked:

Storage costs money.

If you asked a storage company to hold a piece of artwork for you for however many months, you would have to pay for it since it is taking up room, they would not hold it for you for free especially not for a long time. They would sell it or otherwise dispose of it if you did not collect it or pay for it to be sent to you.

I as an artist am not going to have an original taking up room in my studio unless it's something I want to keep, I need that room for materials and new pieces. If you pay me to make something and the original is not included in the transaction? Then if you don't bloody well get back to me soon about wanting to pay for the original and have it shipped to you? Also if it is included and you fail to send me shipping details or ask me specifically to hold it for period of time for you. (Generally I will store a piece for free for a short period, but not months)

You run the risk of it being either sold or shredded; when I next clean out my studio, I don't do it often but I do clear out old stuff. If your character means that much to you that you can't bear the idea of someone else owning a created original piece of art of it or said original being destroyed during a clear out? Get off your rump and talk to the artist about it asap because most of us will not hold it forever for you.

Basically if you wait months to tell an artist "Hey, I want the original, here's my details, how much is shipping?", you don't get to complain if in the meantime they sell the piece since you are not paying for it to be stored indefinitely and they may well need the space. Artist's are not a free storage facility, we're not obliged to keep something forever just in case you decide you want it at a much later date; talk to the artist at the time, not months later.

[honeymane.livejournal.com]

I normally don't comment, but having read some of the comments on this post, I thought I'd post my thoughts.

1) I think it's generally a good thing for an artist to ask- whether they're selling prints or the original.

Within the furry fandom, I'd argue that many people have some sort of personal connection to their character(s), more so than Walt Disney would have towards Mickey Mouse. Even if it's within the artist's legal rights to act in such a fashion, doesn't mean the artist shouldn't at least consider that the original commissioner might be upset of having the original/prints sold.

I remember once, an artist asked me if it'd be alright to sell prints of a commission I had gotten from them, to which I agreed, but I'd probably would have been upset if the artist hadn't asked, even if legally she didn't need to.

2) One thing I found frustrating about some of the comments in the threads here is the rejection of this statement "If you do a piece using real media, unless otherwise stated, it is presumed that the buyer wants this piece." by arguing that the opposite is standard practice within the illustration industry.

You cannot assume that your commissioners are well read with Illustrative industry's practices. Within the furry fandom, 90% of the people who commission you probably have no knowledge of illustrations, or copyrights, or trademarks. Further, I'd argue that whether or not sending out the original real-media copy is standard in the illustrative industry, the de facto operating method for artists within the fandom is to send out the original (as far as I can tell). This is why it's so important to have TOS; you cannot assume that furries have any idea about what is or isn't going to happen, especially if you plan to differ from the "norm" within the fandom.

This is incidentally why it's so important to know your audience.

To recap:
1) Legal or not, necessary or not, it's always a good idea to try and warn/alert commissioners about things like prints/original sale, especially if you're dealing with characters that the commissioner might consider personal, even if you're not obligated to do so. Plus, being nice is always a good way to get repeat customers (Flies with honey and all that)

2) Don't assume anything. You shouldn't assume that the people commissioning you are familiar with the illustration/publishing/etc industry and their practices. If anything, you should be familiar with the setting background that you're producing commissions for; different cultures/subcultures will likely have different de facto standards, this doesn't mean you have to follow them, just be aware that they may differ.

[lilenth.livejournal.com]

A customers lack of knowledge of standard practises isn't the artist's fault.

I do my research on things before I buy them after all, shouldn't everyone?