TOS Question

[stormrunner1981.livejournal.com]

Due to all the recent entries I have become increasingly scared to even do commission in the furry community (if at all). I decided to write up a TOS.

I have had mixed reviews on it. Most say it is fine, but I have had one or two people tell me it's TL;DR, it's cumbersome, or just plain scary.

Now, I'm trying to cover ALL my bases here. I've been on the end of art theft before, and I have been swindled too many times to count when I was unofficially doing commissions.

I would like some opinions, but I would also like this not to get into an all out argument about what is ethical and what is legal either. I am trying to cover all that with this TOS and I believe I have done so successfully.

I am worried I may have missed something legally in this TOS that I need to cover, and I would like to know what that is.

Please help me on this. My TOS

Admins and Mods, I know this needs approval, if this is not in the correct community please send me a message and I'll resubmit it elsewhere.

Comments

[kayla-la.livejournal.com]

I just wanted to say don't be too scared of commissions. I've been doing them for like, ten years, and I can count the number of times they've gone wrong on one hand. Don't take this community as if it's the average experience, that'd be like going to starbuxsux.com and taking it to mean all starbucks everything is bad everywhere. This is a beware community, after all.

The vast majourity of commissions for most artists go off just fine. :)

[bladespark.livejournal.com]

This. :) The community gives a very skewed idea of what it's like out there. I've only had one or two commissions really go south. Nearly all of them go off with only minimal, if any problems.

[stormrunner1981.livejournal.com]

I take commissions here and there over the past 15 years or so (oh God I'm old) and have been swindled a number of times (probably because it was spread out).

Being disabled now I want to try to do commissions full time. It is the only reason I'm so paranoid.

That and the more recent threads here about shipping and copying etc.

I just don't want to be to negative, but I also want to cover everything.

If this makes any sense from my sickness induced thoughts.

[kiriska.livejournal.com]

If you think your TOS is tl;dr, here's mine (http://www.deadend-detour.com/commissions/tos/). v_v If your commissioners can't be bothered to read through it, then you shouldn't be bothered about losing their business.

I think your TOS is fine, though it may help to divide it into sections so people can digest it one bit at a time. I would personally also cut down on complete sentences if they aren't necessary. You just need to be clear.

[stormrunner1981.livejournal.com]

Thank you for this. Sections are a good idea. >_< Last time I did a TOS I got a lot of complaints for not using full sentences.

Do you mind if I sort of use yours as a template to go by? Obviously, it won't be exact - I read through and I've missed the "over $100" commission in mine as well.

Do you think I should do a contract for anything over a certain amount (if I ever get that far)?

[rains-opacity.livejournal.com]

I don't think your TOS is teel;deer at all. In fact, I found it very concise and to the point.

Don't be afraid of commissioners. A lot of them just want to do business with great artists, not rip them off. :)

[stormrunner1981.livejournal.com]

*nods* I figured. I guess I just got a lot of bad turns before. Maybe that means I'll get good turns now?

Sorry if this is a bit rambly.

[bonegrind.livejournal.com]

I think you should be paid before sketching, that way if they back out of the commission they don't get away with a free sketch.
When they do back out you can refund them some of the money and keep whatever you charge for a sketch. So if you charged $40 for the commission but $8 for a sketch, keep $8 of that and refund them the rest.

[stormrunner1981.livejournal.com]

This is why I watermark to an extreme. But, if they really want to run with it after that, let them. I'd rather lose out a sketch, then a full commission because I'm taking to long to get the sketch done with money already in hand.

[sigilgoat.livejournal.com]

i agree with this, but I know some people don't like the pressure of someone having paid over their heads.


If you feel like you'd be bothered if someone ran off with a sketch, I suggest having a low downpayment to cover the sketch, then they can pay the rest after receiving that.

That's how I set mine up at first, but I had so many people that just wanted to pay the whole ammount that I changed the down payment to my exception :o

[louveg.livejournal.com]

See, I prefer to get paid between sketch and final product because I can see how from the other side of the commission, they have every right to be wary of me as well. I could just as well run off with their money...

I send low quality watermarked sketches for approval, so even if they chose to run off with it (which has happened only once so far), they can't really use it for anything.
Plus the sketch is not the longest part for me so I don't mind so much.

I feel like that way, we're both protected. They only pay me when they've seen at least some progress on their commission. And I only finish the work when I've seen the color of their dollars. It seems fair to me.

[uozlulu.livejournal.com]

As someone who has some learning difficulties, I can point out two flaws:

1. Colored background, white text - If a person has color vision problems, using something that's not black on white will be hard for them to read
2. Make things concise. I know you want to explain yourself and your reasonings, but sometimes that gets in the way of what you're really trying to tell people. For example, sentences like "I believe this is only fair after all the effort I put into the image to make sure it is correct" seem redundant since this is your TOS so of course you are expressions rules and limits because you're putting an effort into the commission. I know when I encounter a large block of text, my brain just really wants to wander and not concentrate on the information unless it's a novel or something where a large block of text is expected and necessary.

Think of it kind of like a bullet list (but maybe not that short) Try to get your point across in as few words possible so people are encouraged to read and understand. You can even put at the end of the list "If you have questions or want clarification on any of the TOS perimeters, please e-mail me" so if someone does want an explanation, then you can give it to them without turning off other people.

If you have too many limits and demands people might not commission you because a very wordy TOS might make some people wary.

[stormrunner1981.livejournal.com]

Your first one is a bit funny because I actually have a hard time reading black on white myself (my eyesight isn't the greatest).

I will try to find a happy medium to work with on that.

The second one I agree. I will try to be short and to the point. I'm getting a lot of great ideas on this :).

Thank you.

[pariahsdream.livejournal.com]

The only one that seemed a bit too cumbersome in your explanation is #11. You might want to see how to rephrase that to be a little less..weird. Or I could not be getting something. Overall your TOS seems very well thought out and organized thoughtfully. :)

[alcyione.livejournal.com]

Yeah, don't be worried about accepting commissions. :) I've been doing this for seven years or so, and I've only had one problem customer. I've actually made a few friends through commissions, so I definitely encourage you and wish you well in your endeavors! :D

[shukivengeance.livejournal.com]

Your TOS sounds fine to me and isn't necessarily too long, it's just a bit scattered. I think that instead of having numbered points you should break it into labelled sections. This may make it look longer but it is easier for someone skimming through to find a specific clause they might be looking for.
An example of what I mean would be thus

How to contact me:
*your email etc*

Commission procedure:
*basic outline here, include the part about you being slow and taking payment in halves*

Refund policy:

Rights to the artwork:
*whether you retain them, are willing to sell them, prints, etc*

And any other stuff. Hope this helps! Also I'm unsure if it's maybe my monitor or not but what may make this be looking wall-of-texty also is the width. Indenting it at the sides may make it look less intimidating.

[silverfalln.livejournal.com]

Yeah, adding insome padding to the side will really help it not look so bad. You don't HAVE to use a fixed width (and on the off chance someone is using an older computer with a smaller monitor/resolution, things won't be side scrolled), but can do it in percentage. Say a centered table at 80% or something. Also, having some padding at the top and bottom of the page will help. Tables are good for this, and it's still simple html. :)

I would darken the background a bit. It's a little hard for me to read, and I'm another one of those people that has some issues with colors, especially now that everything is LCD screens.

I'm in the process of reworking my own TOS and TOU, so using sections like shukivengeance suggested would be handy. :)

Good luck with your commissions! Most of the buyers aren't as bad as this community reports. It's kinda like watching the news, they usually only report the bad stuff. :)

[pan-h-shiroi.livejournal.com]

My TOS are way longer than yours, so I don't think yours are too long. ;)

But maybe you should make different sections to make your TOS easier to read (so people won't be beaten by a huge block of text). It also helps them to look up something specific a bit faster.

Here are my TOS, maybe they're helpful regarding the matter with the different sections:
http://pan-hesekiel-shiroi.de/terms_of_service.html

Part I

[kriscynical.livejournal.com]

I haven't read the other comments on this so if I repeat anybody (which is likely), I apologize.

Overall, I do agree that it gets rather needlessly wordy and cumbersome in some parts. I can see why people have said it's scary; there are several times that you come off as quite confrontational or preachy/lecturing. Saying "you WILL do this", "you WILL do that", "I WILL do this", etc., is very harsh and makes you look very unfriendly. If you come off to the customer as confrontational before the job even begins, it's not going to encourage them to do business with you. You can be firm in your ToS without sounding like that. Asking a customer to "please do this/that" instead of saying "You WILL do this/that" will go a long way, as will avoiding all caps emphasizing. That way you're still being firm, but you're being more polite about it.

1. I don't think you really need to quiz your clients on your ToS to ensure they read it. If you send it to them it is their responsibility to read it. If they don't and then violate it, you are not at fault.

5. (a) I'd recommend you take half or down payment before pencil touches paper. If they have come to you already asking for a commission then they like your work from the get-go. Revisions can be made from there.

5. (b) I wouldn't mention anything about the watermarks and I especially wouldn't say anything about "running with it". To me this comes off as confrontational and you're already almost accusing them of something they haven't done yet, or you're at least assuming they'll have the thought. That is very, very off-putting for a customer, and if it were directed at me I would feel a bit insulted.

6. (a) The best way to avoid revision problems is to first send a thumbnail drawing to get the pose correct, then a rough sketch, then a color study, and then the final. Getting approval from the client at each stage (with revisions to the drawing itself not being allowed after rough sketch stage) not only makes things run smoother but it makes the client feel more involved with their piece. The less guess work there is, the better.

6. (b) I'd avoid emphasizing words with caps (or emphasizing words, period). Again, it comes off as confrontational and you really don't need to do that from a business angle.

6 & 7. You're being too wordy. Short and succinct will insure there are no misunderstandings and the customer won't get bogged down in walls of text. You don't need to word things like "If you wait until ____ to make changes, I charge extra". You can say that revisions are allowed on steps X, Y, and Z only. The customer can understand on their own that if they make changes after step Z, it's not allowed. Again, I'm getting a feeling of confrontation/preaching/instructions that aren't very friendly.

9. Again with the caps emphasizing. I would strongly recommend taking money before you ever do a sketch in the first place, but besides that what you're talking about is a kill fee. Suggestion: "You have the right to cancel your commission at any time, but you will not be refunded for work that has already been completed up to the time of cancellation." or something of the like.

Continued...

Part II

[kriscynical.livejournal.com]

10. I wouldn't tell my customers not to complain. It again comes off as lecturing/instructions. I'd probably put the stipulation of rating restrictions toward the front of the ToS since the content of the commission comes before the actual process of creating it. That way if the customer wants something above your rating, they'll know right off the bat that you're not the artist for them.

11. Suggestion: "For traditional pieces, the original artwork can be purchased at additional cost which includes shipping. This purchase can be negotiated at any time during the course of the job, and the additional cost of the purchase will be added to the balance still owed at the time."

Then I would make a new number to break up the text. "If you choose not to purchase the original artwork of your commission, I reserve the right to re-sell the image to another customer." I don't think there needs to be a direction to #15... they'll get there on their own. I strongly recommend re-wording 11. I had to read it several times before I understood what you were saying.

12. Suggestion: "For all digital commissions I offer an option for prints. Prices depend on the size and weight of the paper. I can print smaller sizes myself but larger sizes must be made through a print shop at additional cost. My print prices are as follows: X, Y, Z."

13. Suggestion: "I reserve the right to use your commission for self-promotion. If you would like your commission to be permanently private, the copyright of your piece can be purchased from me at additional cost. Please ask me for pricing if you are interested."

14. Suggestion: "If you would like for your commission to be private, you must let me know at the start of the job. I sometimes stream my work where the public can see."

15. (a) Suggestion: "Your commission is for your personal use only. Reproduction of the commission for sale (i.e. making prints and selling them) is prohibited. If the original artwork of the commission has been purchased, you may re-sell the original artwork only."

15. (b) When you say "I CAN make copies however" you're sounding preachy and confrontational again. You don't need to tell the customer this because you have previously mentioned that you reserve the right to use the piece for yourself.

16. I now see why you don't take money up front, but even with a disability this is still a very risky practice. You say you've been swindled before... this is part of the reason why. I would not recommend producing artwork before being paid. Suggestion: "It takes a while for me to produce artwork due to a disability I have. I will keep you up to date on the progress of your piece, though, via my journal, Google Docs, and/or e-mail." Then make each a link.

[graemelion.livejournal.com]

There are some areas where you need to clean it up and sound professional....but it's a good start.

I'd state also that for this level of commission, you are the owner of the artwork and that you own all rights. I would offer a higher level of commission that would allow the purchaser to own all the rights.

[marymouse.livejournal.com]

Anyone who is going to tell you "TL;DR" isn't someone you want to do business with... <=)

Just a small 2 cents...

[aerospiritual.livejournal.com]

This.

[mandyseley.livejournal.com]

My $0.02 on this...

Format this sucker. Right now it's intimidating because it's a very big "wall of text." Try separating sections using bolded headings, with a short paragraph underneath for the details. That way it feels a bit more manageable and people will be far more likely to read it.

You could take a look at my TOS (located here (http://mandyseley.deviantart.com/gallery/#/d2ih645)) for an example of what I mean.

[mandyseley.livejournal.com]

Other thoughts:

This is personal opinion, but I wouldn't mention that you have a disability. I understand that you want customers to respect that, and that's a reasonable expectation. To some people, stating that you have a disability up front sounds like an excuse, not an explanation. All you have to say is that you are not a fast worker, and ask your commissioners to please be understanding and patient with you. In my experience, as long as you're honest about that up front, and you touch base with them now and again and respond promptly to their emails so they don't feel forgotten, people can be pretty patient.

Using capital letters for emphasis looks pretty unprofessional. Bolded text is a great alternative.

(If you need help with formatting and the like, I'd be happy to offer my assistance!)

[dreamerdragoon.livejournal.com]

The bare bones are there, but overall I'd say it would be in your best interests to make it a little more professional in style. Clauses like:

"Material before payment is watermarked no less then THREE times. If you think you can run with it – please don't try."

are not really appropriate for what is essentially a legally binding contract. A ToS is fine, but don't write it from the perspective of someone who clearly anticipates that your customer will try and pull a fast one at the slightest loophole. The ToS is there for a) education of the customer and b) covering your back. It doesn't need to be a warning. Many buyers may be put off by such a tone. Keep it impersonal and unemotional - you might even want to switch out all of the "I"s for "The artist"', as in "The artist reserves the right to . . ."

You also don't need to justify your terms within the ToS. Just declare them and if people don't like them then they don't have to do business with you. I'd hence take out references to a disability and statements like:

"I believe this is only fair after all the effort I put into the image to make sure it is correct."

The disability aspect, as another person mentioned, sounds like a pre-emptive excuse for delayed work. State that deadlines will be agreed on a commission-by-commission basis, or decide for yourself a maximum turnaround time based on your own knowledge of how quickly you work and embed that in your ToS. I honestly wouldn't encourage an 'I'll finish it when I can' approach to commissions, regardless of the reason, but that's mainly a personal preference. A very generous maximum turnaround time can do a lot for setting customer expectations whilst still giving you the flexibility you need around timescales :3

The other main thing that jumps out at me is your requirements for the buyer to take certain actions e.g. you state that you'll quiz them on the ToS so they should be ready to answer questions, and you ask them to keep a conversation log. This in and of itself is off-putting - just link clearly to the ToS when confirming a deal and state that by accepting the commission the buyer has agreed to these terms. That's you covered - if they proceed without reading, that's their responsibility. The ToS is there to cover your back if they fail. Similarly, if you're worried about miscommunication, the onus is on you to keep a log for your records. Encouraging a buyer to keep a communication log may cause them to think that they should be worried communication will go wrong!

Ultimately the buyer wants to buy art from you and nothing more. Assume that your buyer will behave, and a good, impersonal, professional ToS will cover your back in the case of any exceptions ^^

[ichigoneko33.livejournal.com]

You had a lot of great suggestions. I hope I don't come off as annoying, but would you mind checking out my TOS as well? Don't need to of course :)

http://sbneko.webs.com/termsofservice.htm

[stolenmilkcrate.livejournal.com]

I'm finding much agreement with kriscynical and dreamerdragoon. When a TOS has a lot of emotional verbiage, and already makes insinuation that the seller expects that it may be assumed that I will run off with their work without paying, I back away slowly and do not contact the artist because it just sounds like drama waiting to happen. kriscynical's rewrites would be much more approachable for me if I were a customer.

OFF TOPIC

[lozpie.livejournal.com]

omg your moodset, where is it from? I have an umbreon one but I really want to find an espeon one... ^-^;

Re: OFF TOPIC

[grandioze.livejournal.com]

It's from here:
http://community.livejournal.com/cute_moodthemes/35661.html

[ninykinin.livejournal.com]

Your TOS looks really good, and is obviously very well thourght-out. It certainly isn't too long, it's about what I would expect.
But if you are worried about the lenght, maybe you could make a video list of your TOS for people who have trouble reading/concentrating.

There isn't really much that needs changeing. My only feedback is to watch your wording, some parts of it don't flow as well as they could.

EG:"I draw a sketch you pay half. I finish you pay the rest. Material before payment is watermarked no less then THREE times. If you think you can run with it – please don't try."

Could be more like: "You will be required to pay the first half upon completion of the sketch, and the second half once the entire artwork is finished and approved of. All WIPs will be heavily watermarked."