What do?

[heathermasanon.livejournal.com]

I need a little bit of etiquette advice.

Over a year ago I commissioned an artist on Gaia for a painted, full body couple piece. I paid half ($80) upon the delivery of a rough sketch, with the agreement that I would pay the other half after she got the flat colours for the second character down, and have only received one completed part of the commission (one character, the other still in a sketch state. I was never asked to send the second half of the payment during my correspondence with her). Since then I have not been able to get in contact with the artist, despite numerous attempts on my part. They've clearly been around, and are using the completed part of my commission as an art example, stating that it's a finished commission. They're even using it as an icon for their deviantart account.

Now, I've long since given up on attempting to get in contact with the artist, since it's fully clear they're ignoring me and I don't know what else I can do, but my question is this:

Since I technically paid for this half finished commission (her price for one painted full body was $80), and since she's using it as an example for further commissions, do I have the right to use the image? It just feels really weird to me. It can stand alone as a single character piece, but I know it isn't, and it technically wasn't what I commissioned her for. 

I do like what has been finished, and would like to include it in my art references for the character. I just feel like it might be weird. :/

[edit]

So at the advice of commenters, here is the full beware.

WHO chatelain (Gaia)/chambrae (deviantart)

WHAT A full-body painted piece of my two characters

WHEN February 20, 2011 - Present

PROOF

Paypal receipt (I was wrong, it was $85... her current prices are listed at $80.)

Her art shop, where she is clearly displaying the image as both an art example and a link-back button.

When I sent the first payment/received the prelimenary sketch

What I've received so far

The last contact I have had with her.

DeviantArt note I sent her, with proof that she has read it but has not responded.

Unfortunately, Gaia seems to have deleted my sent folder (I don't use it very much, haha), so I don't have any proof of any other messages I have sent her. 

She has also posted a dA journal, updated her Gaia shop, and even finished another commission in the mean time.

I would just like either the other have of my commission or the commission closed. Any correspondance at all would be welcome, really... I sent her an e-mail notifying her I would be posting about her here, and also mentioned that once we have resolved the issue I'll mark it as such.

Comments

[onyxnineteen.livejournal.com]

I think you should absolutely be able to use the image. It's ridiculous to say that you're out 80$ and unable to use what you got because the artist is ignoring you.

You may also be able to post a full beware on her here--I would definitely not give money to an artist who would only finish half of what I wanted and then ignore me. I'm not sure that many gaia users visit this comm, though.

[xelestri.livejournal.com]

Especially at that high of a price. $80 dollars is a lot, and that was only half the payment!

I would definitely use the art, and I'd definitely post a warning about them too. Very unprofessional.

[xelestri.livejournal.com]

You paid for at least that much of the piece, even if the artist has let you down and refused to draw the other half. They're even telling people it's a good sample of their work and using it as an icon, all while ignoring the customer that netted them that commission sale.

I say take it, use it, at least get something out of it, since they refuse to finish the piece.

[shiftergoddess.livejournal.com]

Essentially echoing the two above.
Also, should it be a problem with the artist perhaps it'll spark them to contact you about it.

[megumi-kitten.livejournal.com]

Yeah, I'd have to go with everyone else. You paid for that work, and obviously the artist is proud enough of it to use it as a sample...so use it!

Do they even mention it's a commission?

[lackoflollies.livejournal.com]

They technically CAN'T. You are not allowed to use real money in transactions on Gaia Online, so they'd both run the risk of being banned.

[megumi-kitten.livejournal.com]

Aaaah, I see.

[negawolfie.livejournal.com]

The rule only applies if you are buying items in the site with real currency, buying art on Gaia Online with real money is not against the rules. I have seen shops where artist sell their art for both gold or real money depending on the commissions. If items where involved with the payment then there may be a risk there.

[mistresswolf.livejournal.com]

This is true...

However, unless it has changed since my Gaia commission days, you can only state something like "I do commissions for real money. Please email me at *email* or contact me through my gallery page *here* to talk more about it!" doing any details on Gaia is not permitted.

I have one guy who still gets me to do IRL commissions sometimes for his Gaia avatars.

[teekchan.livejournal.com]

You are not allowed to do real money transaction on Gaia. You can mention them, but no prices or anything, and you must do the transaction off site.

[heathermasanon.livejournal.com]

Actually no, she doesn't... it's under a list that says 'past targets' but some of the images aren't commissions, just personal work. :( Personally it really bothers me that she's using my character's face as an icon and link-back button, mostly just because she's completely ignored me. If the commission had been completed, it wouldn't bother me so much (since technically she does have the rights to the piece, I know that. It just seems like bad form to me.)

[negawolfie.livejournal.com]

Been a member from 2005 up till now. As much as I do see this the artists I see now in Gaia does art for a huge sum of gold or makes a certain part of their price sheet IRL pay. As for example drawing a character with a detail background will end up being more of a money commission then a gold commission. If it was like chibi commissions it will be stated pure gold only or pay with items which can be allowed as long as real money is not involved in this sort of trade. Since OP payed with real money and not gold this beware on here is very well warranted, $80 is a huge loss of money and it's not easy to make if your job is only doing nothing but commissions. I hope the artist gets in touch with OP and finishes the artwork 1 year is too long for something like that.

[megumi-kitten.livejournal.com]

Yeah I'd be really irked too if my character was being used like that too.

I wish I knew what to tell you. :/

[vauvakolibri.livejournal.com]

Honestly, I think that might be enough for a beware on this artist's part. It's been over a year, the image is not completed and the artist is clearly ignoring you, as opposed to contacting you to finish this issue, even if it is just to discuss if you're okay with the half-finished commission since you paid half and you could both part ways and consider the issue resolved and you wouldn't have to wonder if you have to keep saving the 80$ if at some point the artist decides to finish the image.
And well, if the commission was of a personal character, I personally find it to be in bad form to use as their icon, without at least asking you about it.

Personally I think you have all the rights to use the art you've gotten thus far, and I would try contacting them once more, telling that you resolve this either by finishing the commission or you agreeing to cancel the rest of the commission (or what other way you might find acceptable) but that you would be posting a beware about them in here. If the artist finishes that up professionally the beware can be marked to be resolved from the start, but if they get pissy then it will be left open.

[ocelotish]

Pretty much everything you said.

And well, if the commission was of a personal character, I personally find it to be in bad form to use as their icon, without at least asking you about it.

While I think it's bad form that the artist is using it while the OP can't, I don't have any issue with using art you've drawn as an icon. While the character isn't the artist's, they do have a personal investment in the piece too. They seem to be using it as a "good" example of their art, and I don't think they should be denied that (at least not under normal circumstances). Technically the artist retains all rights, and using it as an icon is a little thing.

TL;DR - The commissioner would use a piece because of the character, but the artist uses it for different reasons.

[vauvakolibri.livejournal.com]

"I don't have any issue with using art you've drawn as an icon. While the character isn't the artist's, they do have a personal investment in the piece too."
And neither do I have issues with it and the artist obviously does have the right to use their own art, but if you're going to use someone elses character as an icon and some link-back button I still think that it's in good manners to check if the owner of said character is also okay with it, that's all.

I personally think this mainly because some characters are more personal than others, and I tend to connect avatars/icons with people and I myself would be bit uncomfortable knowing that when someone thinks/sees my character they see in an icon, they connect it to someone else and not me. Of course not everyone thinks like this, but for that I personally would would do the courtesy of asking, to not accidentally leave a bad after-taste to my customer.

[heathermasanon.livejournal.com]

Yeah, if she had asked me, I probably would have given her the go-ahead. He is a personal character of mine, but it's her artwork. Just the fact that there has been no communication but she's still using the piece kind of rubs me the wrong way... I'm not going to ask her to take it down, but it still bugs me a little, nevertheless!

[ocelotish]

I still disagree. It might be more polite to ask, but it gives the impression that the commissioner actually controls the right to image. In addition, while I can understand the commissioner liking to control their character, but the artist has the right to use their art. It's not being used as the character, it's being used as the art.

Finally, that's what TOS are for. This should be cleared before anything happens and if the commissioner has an issue, that's when it needs to be raised. If the artist retrains all rights to use the image, they retain all rights to use the image. Avatars are even less than that, it's only using the image for self-promotion.

[heathermasanon.livejournal.com]

It's cool. Like I said, the only reason it really bothers me is because of the lack of contact.

[vauvakolibri.livejournal.com]

Well, we'll just have to agree to disagree. I just personally would not want to accidentally insult my commissioners and never claimed that the artist wouldn't have the right to use their art so I don't know why you are pulling rights to this.
But I do agree that this is best when clarified in the TOS right from the start.

[ocelotish]

I don't mean to continue the argument, but just this is what I meant by bring rights into it.

When asking for permission, it implies that they have the right to deny permission. Which we both agree, they really don't.

[crssafox.livejournal.com]

Does she have the right to use the image as an icon? Yes.

Is it tacky and in bad form that she did so? Incredibly. Especially since the piece was someone else's character, and was never actually completed.

Just because someone can do something, doesn't mean they should. While there's not really anything wrong with her decision to use that image as an icon, it's just the icing on the crap cake, so to speak. What gall, to ignore a commissioner, and yet have their commission as an icon so she sees it every time she logs in to dA.

[ocelotish]

I said it was wrong in this case in my first post: "While I think it's bad form that the artist is using it while the OP can't, I don't have any issue with using art you've drawn as an icon."

My point was that an artist has a right to use their own art as an icon, even when it's a commission.

[heathermasanon.livejournal.com]

I'm typing up an e-mail to her now, since that's the only place I think she might have the slightest chance of replying to me. I'm kind of a doormat and terrified of confrontation, so I'm not really sure how to word 'I'm going to post you to artist's beware' without sounding like a total dick. I'm afraid there probably isn't any way to do so, haha. :(

"In conclusion, due to the lack of communication I will be posting about our transaction to artists_beware." Is that so bad? Aghh I feel so terrible doing this.

Thanks to you (and everyone else) for your advice. I may post up a full beware later, if I get the gall to.

[megumi-kitten.livejournal.com]

I think the way you worded it is perfectly fine.

[onyxnineteen.livejournal.com]

You shouldn't feel terrible at all. You paid a considerable amount of your own money for something that wasn't what you agreed on, and the artist is flat out refusing to respond to you--a beware here is warranted.

Besides, if she earns her resolved tag and handles the situation well, not only will you get what you actually wanted, but people will see that she is trying to make the situation right and recognize that. If she doesn't handle the situation well and cements the beware, then it could potentially save someone else from spending their money on an unreliable artist.

[enter-data-here.livejournal.com]

"1/2 of a rl commish couple. the other guy will be popping in soon, hopefully!"

She seems to acknowledge that it is a half commission on the piece, so maybe she's still working on it? Hopefully she takes your email seriously and lets you know what's going on on her end.