Advice about artist's moral rights

[fenrirs-child.livejournal.com]

So, I've recently had a little near-miss, and it almost made me lose my desire to continue my art. I want to prevent this in the future, because really my life revolves around my art, and it's very fulfilling. 

Long, gruesome story short, I almost just made a suit head for someone who has been discovered to make fursuit porn. I am 100% not comfortable with associating with this behavior, because while I can't physically control what customers do with their product once it's out of my hands, I have no desire to have people associate that with me. I sort of remember a discussion about all of this in the past, and the only leg I *may* have to stand on in order to try to prevent this in the future, to my knowledge, would be moral rights. 

Basically, what I am trying to do (or at least get as close to doing as possible) is to prevent people for using the art I pour my heart and soul into for porn. I mean, if there's no proof there's nothing I can do either way, but if it's not online and being spread around, I think that would be enough for me to be comfortable. I want to implement in my TOS somehow (which has to be agreed to to even get a quote from me) a clause preventing such activities, but I want to do it in a way I can back with legality if necessary. I have the strong feeling that just having the clause would be a deterrent enough to most, but I don't want it to just be empty words either. I think the only way I can really put in anything with legal precedence would be to basically find a way to make it comply with moral rights. Each costume I make is one of a kind, handmade and custom, and I think I could achieve this by signing each one and numbering them 1/1, but I don't want to screw this up, and I know y'all know more about the legality of this than I do. 

I also don't know what kind of reasonable penalty could be applied for a breach of this part of the contract, but hopefully it will never get that far anyways.

Also, if anyone has any other suggestions that would reasonably work in this situation, I'm all ears. I'm sorry if this all seems unreasonable to anyone, but I spend well over 40hrs of work on these creations, and it really is a very personal process, and I pour my heart and soul into my work. I'm sure I'll get a few comments telling me to get over myself, but really, I'd rather not make suits for others than to see them used in such a manner. Not saying it's wrong, but I have every right to not want to be involved.  

I appreciate any advice you all have for me, thank you for reading through my tl;dr X3

EDIT: After further research, I believe the fact that I sculpt and paint all my costumes is going to save my ass, as the actual fur of the bodysuit I can't make any real standing on, but the painting and sculpted parts I most certainly can. 

 I'm thinking something along the lines of 'In accordance with The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, I retain rights of integrity over these works of art. As such, I prohibit the use of items I create in pornographic films or photographs, as this will tarnish my reputation, and will take whatever action necessary to repair my reputation, including taking legal action.'

As I said above, I highly doubt anything would get to the point of legal action, and I know that I can't stop people from doing whatever in them if there's no evidence/proof, but I'd be satisfied preventing just the porn, because really in the long run that would be what would affect my reputation, since it's undeniable proof. 

Also, if you guys can think of a way to pretty up that clause by all means, let me know!

Comments

[beetlecat.livejournal.com]

TBH I can't see a judge doing anything but throwing this out.

If the person is not breaking any laws, then what can you claim exactly? Breach of contract sure but (someone correct me if I am wrong) I just don't see any laws to enforce the use of an item after it has been sold.

As I see it in a juried situation, Once you accept payment for said item, it is not your anymore and you cannot tell people how to use it.

EDIT:

A good comparison is pharmacists saying it is their moral right to not fill birth control prescriptions because they do not believe in it. Well, they still have to fill the orders because their morals do not cancel out other people's rights.

[gypsywitch.livejournal.com]

Unfortunately, in some states pharmacists DO still have the right to refuse, regardless of how it effects the rights of others.

[fenrirs-child.livejournal.com]

It all depends on whether it's a 'useful article' or 'visual art'. As a visual artist, I'd retain moral rights over my work, and them doing something that would harm my reputation with it IS breaking a law. I edited my post up there with my further research, but essentially I'm pretty confident the sculpture and painting aspects I do to my suits make at least the head and paws fall into that protected category.

[obsidianwolfess.livejournal.com]

Like you said, the problem is that you have no control over what people do with the costumes after it leaves your hands.

In the example you used (which I read about when you posted it on a different community), one option would be to stop taking commissions for just masks. However, who's to say that someone wouldn't order a body from you and alter it themselves?

I don't think you can legally tell someone how to "use" their costume once they've paid for it in full. My advice would be to clearly state in your ToS that you won't make those kinds of costumes. If you have any kind of warranty on them, you could threaten to void it if the costume is found to be used for making porn. You could also blacklist the buyer from any further commissions from you.

This is a kind of touchy suggestion, but.. It might also help if you attempt to do very general "background checks" on commissioners. If they have a furry name, you could just google it for links to questionable websites such as X-Tube. That could help to determine if you want to work with them or not, maybe?

[collie-fluff.livejournal.com]

"This is a kind of touchy suggestion, but.. It might also help if you attempt to do very general "background checks" on commissioners. If they have a furry name, you could just google it for links to questionable websites such as X-Tube. That could help to determine if you want to work with them or not, maybe?"

How would that be touchy? If you google a commissioner's name and their account shows one of their other suits being used for sexual purposes on a website, and that is something you do not want happening to your suit (which it isn't yours anymore, you sold it, but you do not have to keep the warranty). It's just like if you google a possible commissioner and they have a laundry list of complaints against them here on AB. Declining based on either isn't touchy, it's just how you operate your business.

[oceandezignz.livejournal.com]

Voiding warranties +1
Blacklisting buyer +1
Background check +1

Here's another idea to add (a crazy idea mind you), just in case you still do all the above and they still end up making the suit into a SPH-nightmare.

If they do it, and you are made aware of it - approach the buyer and ask them to no longer list you/quote you as the maker of their suit? Might backfire because some people can probably go 'oh X must have made that, I can tell by the style', but if its not admitted by the suiter, it might save your bacon?

Of course if you go this far, in turn you'd need to remove any and all proof you did said suit from your sites too.

_{PS: I need a Kanyeshrug icon. ._.}

[fenrirs-child.livejournal.com]

It really depends on whether my work is considered a 'useful article' or 'visual art'. As an artist, I have protection over my moral rights on my art, and the painting and sculpting should pretty easily make at least my heads and paws qualify under that. The real thing I may have to do is stop offering fullsuits, because the bodysuit is really what I'd have the least grounds fighting over in court.

[taasla.livejournal.com]

Someone may correct me if I am wrong, but I thought Moral Right only stood for visual art? In which case, yes, the Moral Right to your work would keep people from altering it in such a way that would harm your business. Does fursuits fall under that?

See here. (http://cyber.law.harvard.edu/property/library/moralprimer.html)

The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author's reputation, and prevents the destruction of any work of recognized stature. Therefore, if I paint moustaches on a painting by a famous painter such as Roy Lichtenstein or Frank Stella, I will have violated the artist's moral rights under VARA. If I paint moustaches on an Andy Warhol painting on the other hand, I will not have violated Warhol's VARA rights, because VARA protection ends with the death of the author.

[fatkraken.livejournal.com]

from what I can glean, it covers "fine arts and exhibition photographs"

http://www.copyright.gov/reports/exsum.html

IANAL, but I would be VERY surprised if it included costumes, ESPECIALLY where the character the costume is of is not trademarked and was created by the commissioner of the costume

Honestly OP you should probably just roll with it. Porners gonna porn, blacklist them and move on.

[breakspire.livejournal.com]

huh I didn't know that existed. That's really interesting.

[fatkraken.livejournal.com]

I'm still not sure it would apply to costumes:

"Under VARA, moral rights automatically vest in the author of a "work of visual art." For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only. VARA only protects works of "recognized stature;" posters, maps, globes, motion pictures, electronic publications, and applied art are among the categories of visual works explicitly excluded from VARA protection."

Costumes don't really fit in the first category, but are not specifically excluded in the second (unless they are "applied art"). You might have to look at case law to see if there was a precedent involving costumes or mascots

[teahound.livejournal.com]

Honestly I don't think there's much you can do. Short of claiming credit for making the suit and such, you can't really control what someone does with your work once it's sold to them - least that's what I've learned here. All you can really do is, if you feel it's necessary, do a quick BG check and ensure they know that any warranty with you is voided if they use the suit for adult acts.

[canilupine.livejournal.com]

If fursuits can be successfully counted as "sculptures," especially for the amount of work that goes into making heads (In the OP's case, resin-cast masks, silicone-sculpted pads/nose, painting, etc.), then it would be possible to claim moral rights under VARA from what I've researched.

The OP states in her TOS that her work "is more of a 3D sculpture than clothing/a costume," but I'm honestly not sure how a case like this would go. Unless a commissioner using the suit for porn caused concrete and measurable damages to the fursuit builder's reputation, and the maker can successfully classify their work as a "sculpture," there would be little chance of actually making a court case out of it.

At the very least, it would make a good deterrent to have such a disclaimer in your TOS and give you some leverage in the event of such misuse.

[fenrirs-child.livejournal.com]

X3 Thank you for helping me research this crap! It's all so confusing...

[alaitallon.livejournal.com]

Judging by the comments left so far and personal experience, the only thing I can really suggest is that you put a section in your ToS saying explicitly that you will not sell/make suits for people who will use it for sexual purposes. This is usually enough to discourage most people. However, do know that there's not really anything you can do to prosecute them if they end up doing it anyway.

It's similar to one of the rules at the pet store chain I work for. One of our policies is that we will not sell fish to people intending to use them as prizes for fairs/carnivals (long reason short: it's bad for the fish). If someone comes in explicitly asking for that, we can deny them the sale. However, if they either neglect to mention it or lie, there's nothing we can do once we've made the sale because then they're no longer our fish. However, if we find out about it, we can deny any further sales of those fish based on that knowledge.

Similarly, you can have an explicit policy that you will not sell suits to people who plan to use it for sex. This can't legally stop people from just not telling you they plan to go home and do it and you'll have no real recourse if they do other than blacklisting them/voiding warranties or refunds/etc.

But what if people don't tell you? Well, one way to make sure is just ask a lot of questions. Be friendly about it, but just ask things like, "What kind of places do you plan to wear your suit? I'm just curious, because I like hearing about all the different places my handmade suits go!" It's not a lie, it's not deceitful, because you honestly DO want to know. Sometimes this can get people to admit they want it for murrypurry funtime. In that case, you know and you can stop the sale. It doesn't mean it'll always come up, because most people will keep their sexcapades to themselves, but then again, this is the furry community. :| People seem to have much lower inhibitions here.

Anyway, hope this helps! Good luck!

[crssafox.livejournal.com]

For what it is worth, I have actually had people e-mail me and straight out say "My girlfriend wants to have sex with costumes, can you make a fox for me?" They're not even usually furries! And my site is the farthest thing from "potential sex-suit site" so I have no idea why they are so, uh, up front about it. o_O

But I agree that asking questions about the uses might be a good idea. This could also be done under the guise of figuring out how best to build the costume to suit their needs, which should be a good thing to do anyhow.

[mgsfriedchicken.livejournal.com]

I'm also going the route of blacklisting, voiding warranties and refunds. Explicitly say that you don't make suits for sex in your TOS next time.

[ph34rth3ll4m4.livejournal.com]

I'm going to echo others here - I think your safest bet is to include in your TOS that the use of your work for pornographic material voids all warranties and refunds. I would then add disclaimers to your site and you description of the images that you can not control what others choose to do with your work once it has left your hands and any images popping up once the costume has left your hand are not endorsed, taken or necessarily approved by you.

[canis-ridens.livejournal.com]

I wonder if you could put a clause in your TOS regarding using images of fursuits you made in for-profit works? I don't know if that would stand up to legal scrutiny or not- someone here might, though. If you could, that would at least give you recourse if they used it for paid pornographic videos or images. There's nothing you can do about stuff they give away for free, though.

[crssafox.livejournal.com]

You might actually be on to something. I wonder if fursuits can be treated similar to drawn artwork in that "commercial use" (as you say, for-profit works) might cost extra. Surely businesses and store chains pay out the nose to have their mascots designed and made specifically to generate business; if a fursuit designer does every step from concept artwork of the suit to actually building the suit, I wonder if it might stand to reason that if the costume were to be intended to gain income that there might be a higher fee on it, or something.

Contract law

[greenreaper.livejournal.com]

Put wording in your contract of sale (you do have one, right?) that states that you both agree that material damage to your personal reputation would result if it's seen to be used for sexual activities. Then you can hopefully get an injunction and sue them for damages - and more importantly, they're on warning that it's not an acceptable activity.

Re: Contract law

[fenrirs-child.livejournal.com]

Oh man, that would be a lot more binding and effective, I cannot believe I didn't think of that sooner. I knew posting here would be a good idea! I guess I'd thought without legal backing I couldn't even add that in, but now I feel doubly protected. What do you think would be the best way to implement that?

[sharpecostumes.livejournal.com]

Something I learned a while back when purcahsing art that you have commissioned. You are buying the picture but must pay extra for the rights. Perhaps charge extra, like CrssaFox is saying, for said rights... Slso lovin' what Greenreaper said. :3

Sadly I don't believe there is truly much you can do. One of my masks I'm thinking is possibly being used for adult purposes and, as much as I cringe, there's not much I can do. Oddly enough I have had clean furs come to me in response of seeing said mask and ask for a commission. It may be a painful bite to chew, but in a way it IS advertisement. May really not be the best image you wish to have your work portrayed for...

By best advice is to echo those above and state in your ToS that adult suits and suits made for adult activities will not be created by your hand. Alterations to the suit after it arrives to their hand will permenently cancell all refunds, upgrades, etc. as goes with alterations from another maker (unless the second maker gets your permission first).

[fatkraken.livejournal.com]

A certain degree of rights are transferred when the piece is sold. Using the example of a cup, you have the right to drink from the cup, the right to smash the cup, the right for the cup to appear in pictures you take. Same with other applied art like a dress or a chair. Once it's sold, the creator has no say in how the piece is used (other than copyright breech such as unauthorized reproduction).

The question becomes would a costume be classed with dresses, chairs and cups as APPLIED art, or with paintings and statues as FINE art? This is the crux of the matter. My feeling is that it would most likely be applied art because it is a functional object with specific uses. However you'd need to do some digging around to see if it's been tested or is explicitly stated in the details of the laws surrounding moral rights.

[vellacraptor.livejournal.com]

Echoing the above really on the not much you can do except maybe the ToS. Not sure how far the law would stretch over it. Only thing that would do is MAYBE keep it from being a public spectacle, but you just CAN'T prevent it from happening all together.

I'd just add a clause and move on. I'd doubt it'd affect your rep much anyway, especially if you don't make the altercations yourself.

[film2edit.livejournal.com]

Unless you know a head of time what it'll be used for, you are working on someone's contracted intellectual property. I came across one of my projects in pony play gear. Though it's not porn, I still wasn't thrilled to see it. Once they own it, it's theirs.

Unless you plan on suing someone for defamation (which you'd have to prove things such as financial loss), there's no point in fighting it. You can make people aware of a commissioner's actions if you feel it may hurt someone's business or their reputation in general in the future.

[morning-dragon.livejournal.com]

As someone who has both PG and Adult rated suits/vids I will give my take on this.

You as a private seller have full right to not sell to anyone. You could ask someone upfront if they will/not use a suit for some purpose. But once you sell the suit to the person they can pretty much do what ever they want with it no matter what they said. If they wanted to they could rip the suit apart and use it to stop leaks in their car if they really wanted to.

What I find a lot of makers do is put a simple, "If you alter this suit or use it for adult reasons there is NO warranty on any issues."

[lurkerwisp.livejournal.com]

I'm not sure anyone's mentioned this before but you're kind of butting up against right of first sale. Once you sell a work of art to someone they're allowed to do anything they want with the original except make copies. Cutting holes in your carefully crafted suit for whatever purpose is not something you have any say over because the piece is sold and no longer under your control.

[frazzled-niya.livejournal.com]

I'd say you put in your ToS that you make suits but will not sew on a penis etc...or make holes for a penis (er just word if better :\) and that any alterations that are made by them will void the warranty (as Growly said previously.) As you said you can't control what people do with the products they buy from you.

[elmenora.livejournal.com]

I'm not a lawyer, but:

Sorry to say, "moral rights" doesn't actually cover stuff like making porn with your suits. It only prevents them from altering/mutilating the work of art (suit) itself - not from doing skeezy things while wearing it. Now, you might be able to get them for making a

derivitive work without permission, but I'm not really sure about that.

[fenrirs-child.livejournal.com]

But they *are* altering the suit, in a defamatory way. I don't make suits with holes.