Selling artwork of someone else's OC?

[takesu.livejournal.com]

Hi, all,
I've been thinking a lot on copyrights and stuff, these kinds of things really confuses me. 
My question is, is it alright to sell the artwork that you drew of someone else's oc? Like if someone commission you to draw a painting of their OC, can you sell the original physical drawing of it for profit without asking or their permission? what about prints?

I see people selling their sketches of drawings done for commissioners to other people, is this OK?

Comments

[neolucky.livejournal.com]

I searched high and low, and couldn't find a post already dedicated to this topic, so I decided to let it go through.

Personally, If I am drawing a traditional commission and the buyer has no interest in the original, I then sell it at a convention at a fairly cheap price. Or I change it to be a slightly different design.

Artists who are more careful, will ask the owner how they feel about it, but generally it's completely legal to sell an original image to someone else, despite being commissioned for it. Permission is not necessary, but is a very nice thing to do for customers.

I sell prints of art I've been contracted to do for paysites and commission clients. I have it in my TOS that I frequently use these images in portfolio books and art prints. As far as I know it's legally totally kosher, and unless the client pays for rights to the art, the artist has all control over distribution and sales.

It's absolutely OK to see people selling those images =).

[kaekokino.livejournal.com]

Ive seen it in the TOS sometimes too tho right?

something like "all commission work may or may not be used as advertisement or the base for other merchandise"

so if someone commissions you, and they read the terms, they cant complain about it?

[dazen-cobalt.livejournal.com]

I think while it is technically ok and you are well in your rights to do it I'd consider it a slippery slope. I feel like the original art should go to the person who commissioned it. Prints are another story. I say so long as you're not claiming the char itself you should be ok.

[http://users.livejournal.com/_patches_/]

Neolucky made a lot of the good points.

As a courtesy, I always ask the person who purchased a commission if they would like to own the original. I usually give it to them for a low price + shipping, or just for free + shipping. All depends on the piece and how much time I put into it.

While you are legally okay to sell and make prints of any art you've created, I personally think it's best that you either put it in your TOS to warn people ahead of time, or get their permission... That way you don't have to worry about any hard feelings. It's always good to cover your bases.

Don't let anyone give you the "Well, I bought the commission, don't I own it?" speech, unless the transaction was specifically to receive an original piece. Anyone expecting you to mail them the original and take money out of your pocket to do so is silly.

Personally, I would prefer to always own art that I've bought from people, and I would also appreciate it if they didn't sell prints that included my original character... But if they want to, I know I can't stop them. So that's why I usually take extra precautions when selling art of other's characters. Do unto others as you'd have them do unto you and all that jazz, blah blah blah, yakkity-smakkity.

[chronidu.livejournal.com]

Legally speaking if the character is not trademarked, the commissioned piece is yours to do what you please with.

Is it moral/good business ethic/going to make your customers happy that you are selling artwork of their character? Well that's a completely different story.

Personally speaking if in this situation I would ask the characters owners first before selling, just as I would prefer to be asked were my commission being sold ((heck I even might want it for myself after all)). That aside, if they responded with a no, I would edit the character enough to not be said commissioners character.

[sax-art.livejournal.com]

You're totally in your rights to sell prints or originals figuring commissioned chars. But, since many people don't know that and could get miffed, I've specifically written in my TOS that it is my right to do that if I want to (though it can be negociated for a fee).

[wolf-goat.livejournal.com]

As others have said, technically there is nothing to stop you, but some people are very protective of their characters in fandom communities and thus it's curteous to ask about it. If you think this situation might come up regularly, make a TOS entry about it.

For prints, it's a very good idea to add into your TOS that you reserve the right to make prints of commissioned artwork unless negotiated otherwise beforehand (which may incur an extra fee, depending on the subject matter).

[pocket-entropy.livejournal.com]

This is a topic I've been curious about for awhile. I have the original of a commission the customer never paid for and I've been going back and forth on whether to sell it or not.

[mialattia.livejournal.com]

You should sell it, for sure. They didn't even honor their end of the contract (not paying), so you are not bound by those terms. No artist should be tricked into working for nothing.

[thaily.livejournal.com]

Unless you have negotiated otherwise, the artist retains all rights to commissioned work. Including commercial.

This is standard for freelance work.

[mialattia.livejournal.com]

Yup, this is how it works "in the real world"! Just because a client pays you to produce a piece doesn't mean they buy exclusive rights to it in doing so. Alerting them/asking before you do is a simple courtesy that's good for when you deal with fandom art, since there are clients who don't realize this.

Typically artists include the original traditional work with the purchase, but technically (in 'professional client' markets) the client would pay again to actually own the piece, and an additional (hefty) fee to block any reproductions from being made.

Selling prints is standard practice, of commissioned work or no, and selling originals depends on how you want to handle it. You could give it to them, have them buy it, or sell it. I would suggest if you don't include it in your commission price, you offer it to them for an additional fee (BUT MAKE THIS CLEAR UP FRONT, as I said, many clients don't understand that owning the physical piece will cost more!). If they don't take it, you are free to sell it.

[amarafox.livejournal.com]

yep yep. I have a good example. I did a trading card for Topps. I was paid for the art well, and I signed away my reproduction rights (It was work for hire, as it was Star Wars related), HOWEVER, I own the original and after giving Lucasfilm right of first refusal, I am able to sell the art. If I drop the price, I have to give Lucas the right of first refusal again, but the art is mine and mine alone to sell, above and beyond the money I was paid for the commission.

While I haven't sold any sketches of people's fan characters when they have not wanted the originals, I am within my rights to do so.

[frisket17.livejournal.com]

For my own commissions, I do not do prints or otherwise unless there's permission from the owner. (this is just my own standing and doesn't reflect on the ethics/legal standing of it.. just personally what I do.).

If I have plans for an image and want to do a print set, I set it up before hand that I'll include them in X project, but they must realize I plan on selling prints, etc. -- So I also give the option in the up front too when I can.

But good question, btw :)

[flyingfluff.livejournal.com]

Depends on the TOS the client agrees to when they commissioned the artist. Unless otherwise specified, normally the artist will retain the rights to that image.

[feropup.livejournal.com]

Since copyright law in the US defaults all rights to the creator, unless it is specifically in their specific commission agreement that the commissioner has the rights to the picture that they are commissioning, the artist retains full rights to the image unless the character is trademarked. This includes reselling the original if the commissioner didn't want to pay for it, or selling prints of the work if the artist finds it particularly striking.

That being said, it is nice to put it in the ToS to remind people of that who don't know it.

That also being said, it is common courtesy that the artist should offer to sell the original to the commissioner before putting up to sale for the public, but if the commissioner can't or won't buy it, the artist is fully within their right to sell it to anyone who wants it.

To put it simply, if you don't want them reselling the original, or selling prints of the work, you have to negotiate that with the artist before commissioning them. And be prepared to probably pay more to have exclusive rights to the image, because you are taking away potential profit from the artist.

[taelifoe.livejournal.com]

Yup, this is what I was thinking, as well.

[nambroth.livejournal.com]

Okay, so there are a few ways to look at it, but in the end, it is your VERY BEST INTEREST to outline how you deal with these situations in a ToS or at least a nicely written email that the client must agree to before any art or money happens.

Legally-- unless the character is trademarked or part of a product's trade dress (the overall selling look of a marketable item or line of items), OR unless you both sign a written contract that agrees to the sale of right to the image-- you, the artist, own all rights to the expression (the artwork) of the character that you do.

Now, if someone commissions you for a physical piece of art, and expects to get it in the mail, well! That is one thing. This is where it pays to be very clear in your ToS and agreement with the customer.

If someone commissions you, and you do a physical piece of art, but the customer does not expect the original, then yes .. you may sell it legally. It would be VERY polite to offer it to sale to the original customer first, but not required. If you want to avoid any drama, state very specifically in your ToS what you do with unclaimed originals-- if you would like to sell them then be clear. That way the client knows exactly what is going to happen beforehand. Some people are totally okay with this and some are not... head this problem off before it starts by writing a clear ToS.

The same with prints. If you offer prints of your stuff and you want to do so with commissions also, you legally can, but consider writing that into your ToS as well so that it doesn't blindside an ignorant client and cause drama later on. As an example... until recently, I tended to keep my commission prices a bit low (compared to industry) and as a compromise, I sell prints of stuff. The added income from print sales used to balance out keeping the commission price lower and everyone was happy. On the unusual occasion that someone did not like the idea of prints being sold of their commissioned work, I charged an extra "no prints" fee that helped cover any income I lost from not making print sales of the image. The important part is that I had all this in my ToS and no one was blindsided or angry in the end!

No, really; writing this stuff into your ToS isn't legally necessar... but my goodness can it save you a lot of headache in the long run!

[karthegrax.livejournal.com]

From what I've seen, most artists will include a "I can sell this art if I choose, post it in whatever gallery I choose, advertise myself with it, UNLESS you discuss with me to keep it private before the commission commences" (this normally carries a fee) In their TOS.

Given certain members of the fandom can be quite.. grumpy, I really would advise against it though. Personally I don't want their entire watcher base shouting on my page over a drawing I sold for $10. It's drama I could do without.

Honestly I don't like the idea of selling an image you have been PAID to create for someone else for profit. I guess most of you could argue that its no different to selling prints of personal art, I just think I'd feel ripped off if I bought art that (I wasn't aware) had been drawn for a separate paying customer. But, then again, I've never supported myself through commissions, and I guess it makes sense that you would get every $ you could.

TL/DR: Yes you can, but, most likely at some point, you will get someone who throws a hissy that you have.

[nightmare-chan2.livejournal.com]

I'm just gonna echo everyone that while it's legal, it should have some sort of mention in your TOS so people aren't blindsided. As someone who frequently orders artwork of OCs only, I know one time I was very upset at someone selling prints of an OC I had gotten from her when nothing was mentioned in her TOS.

On the other hand, it's also good to offer the original to the owner. If the original is available, I will more then likely purchase it and I think most people feel the same - and if they don't, then I don't see anything wrong about selling a commissioned original if the owner of the OC didn't have an interest in purchasing it.

I would maybe also write who's OC the character belongs to when you sell it though, assuming you'd do it on a site. I've seen cases where people sell originals with OCs and the winners assume they are adoptables... or worse where the artist claims that OC belongs to them. I'm sure you won't but just throwing it out there! I feel like the whole topic is a little bit more sensistive then selling fanart. If you have the warnings, certain people will feel comfortable with working with all of this. However, if you don't give a heads up of some sort I can see how some tension can be created later between you and a few unsuspecting customers.

[wolf-nymph.livejournal.com]

Also repeating what everyone else has said here! It's perfectly legal, but a good move to inform them first. I don't do a lot of traditional art commissions any more, mostly digital. As far as rights to make prints and things go, it's also automatic that the artist retains the rights. Unless the contract/tos states the art is a "work for hire" specifically or the artist is an employee (as opposed to a contractor) at least.

My Terms of Service informs all clients that I retain the rights to the resulting image, including reproduction rights. I find not every client knows the in-and-outs of copyright and trademark law, so adding clauses to my ToS to inform them of certain things is nice. I think it's about finding a balance between legality and courtesy; Retain your rights and protect theirs, but make sure everyone knows what's going on even if it should seem obvious.

[dave-t-wolfe.livejournal.com]

If the commission was of a general topic and common characters with in the scene, then yes, you can sell prints or the original. The tricky part is the commissioner's character. The commissioner retains the rights to his character and you will need their permission to sell or use that character. Very tricky here as the character must be unique enough to be original.

I would say the safest bet to keep all people happy (no irate commissioner) by obtaining the person's permission AND make sure you have copies of all original e-mails and notes that show that the commissioner read your TOS. Just having a TOS does not count, you need proof that the customer read it or was aware of it. (A footnote on e-mails could works for this) Bottom line, always protect yourself and your reputation.

[shukivengeance.livejournal.com]

" The commissioner retains the rights to his character and you will need their permission to sell or use that character."
This is inaccurate unless the character is trademarked or part of a copyrighted body of work like a book (or in this case art, where rights are held by the one who drew it unless there is a legal agreement stating otherwise). Copyright law does not exist to protect ideas, just the expression of an idea. There is no inherent intellectual property or copyright protection in a fursona design on its own.

[enter-data-here.livejournal.com]

I personally never pay for traditional artwork without expecting to have the physical piece. I guess I make clear from the beginning that I want it shipped and that I pay for the shipping though. I would personally be miffed if someone sold prints of or the original artwork containing my OC's without AT LEAST asking me first if I want to buy the original or if I'm okay with it. I wouldn't feel very right without extending the same courtesy to my commissioners. But, as others said, it's perfectly legal. I just would never commission an artist again if they didn't notify me first, or give me the opportunity to buy the original myself.

[wolf-goat.livejournal.com]

Would you feel miffed if you were, instead of being asked "can I make prints of your piece", presented with a TOS up front *prior* to payment for your commission/final agreement which stated the artist retained the rights to make prints?

I'm trying to figure out here by some people's attitudes and expressions whether they are pissed off at not being asked regardless of whether it was clearly expressed in a TOS or not.

Personally it's my feeling that saying to someone "please take a look over my TOS and make sure you're okay with that before we proceed" is perfectly okay and should not later require any individual requests of permission, but I am open to other people's opinions about this.

[marlinkhylacat]

Everyone else has made great points that it's legal, but maybe not the nicest thing to do if there's no warning. :) So here's my two cents:

I think that for some people (but certainly not all), it's not that they don't want you making a profit off the art of their character, it's that they don't want people to not know who and where the character originally came from. People put a lot of work into their OC's and can become very attached. And some aren't just OC's for an LJ RPG or whathaveyou; they're representations of the creator's other works. An OC may also be the creator's mascot for their business, or a character in a book the creator intends to publish. So having that character's art being sold without the purchasers knowing where it came from can feel like a slap in the face to the original creator(s).

If you offer to put the creator's name and website/email/other contact info on the display copy of the print (if you sell at events like conventions), that can often be enough to appease the commissioner. You don't have to include that info on the sale copies if you feel it won't look good on the image, but many people would be happy just knowing that proper credit is on the display copy that all potential buyers will see.

If you're selling prints-by-mail of the image (like, say, off DeviantArt, where you might have credit in the description but not on the image itself), you can include a little note with the creator's info. These are definitely not things you HAVE to do, but they really go miles to making you look like a great person to commission, when people know that you go the extra distance to make your customers happy. :)

[starcharmer.livejournal.com]

If someone commissions something as important as a book cover/illustration, or commissions artwork of their book's character, they should also be buying the rights, IMO. Not to disagree with anything you said, but if someone buys the rights to the drawing, it becomes theirs and no prints/originals can be sold by the artist [unless it's included in the contract]. That would negate the legal standpoint and would be the professional way to do things.

Usually artists are nice enough toward self-published or unpublished book writers, but if it's that big of a deal, better safe than sorry.

[germanchoclates.livejournal.com]

I have a friend who has it spelled out in his TOS that he can sell commission work as it's his main source of income and any print sold helps. Granted, commissioners can see that this is potentially going to happen because of that TOS.

It's just that, it's either have fair warning in your TOS, or ask as a courtesy. While it's perfectly legal for the artist to do that without either, it's just darn good business practice.

[houndofloki.livejournal.com]

Legally - it's totally within your rights to sell prints of someone's OC. It's often considered "impolite" within fandoms though, and if you're talking about fairly small communities like furry or City of Heroes or whatever, it may be in your better business interests to "play nice" and either ask first or include it in your ToS. You don't have to, but it saves a ton of headache.

[starcharmer.livejournal.com]

Everyone has pretty much answered this, but I figured I'd weigh in with my own views and a story.

Legally, perfectly fine. You're not selling the rights to anything, you're selling YOUR depiction of a character you were paid to draw.

Personally, I do like to ask people if they're okay with me selling originals, if they don't want the original or don't pay for shipping. I don't have the space to be storing a bunch of artwork I have no use for, as I move pretty frequently and don't have a filing cabinet or anything.
If I DO sell the artwork, I make sure potential buyers know they are NOT buying the character[s] and may not use them in future commissions since it's only the original of a commission I am selling [especially in this Day of Adoptables].

As for my story...I did a trade with someone, finished my piece very quickly. Waited for years for them to finish their piece, forgot about the trade...then I was going through my little folder of originals looking for something I could sell on FurBid to make a quick few dollars and get some more space and I came across that piece. I figured since it was technically gift art, I would sell it.
Long story short [too late], the person I was supposed to be trading with saw it and sent me a scathing email. I had noted in the description that she was the owner of the character, etc. and that I was only selling the artwork, but she got very upset with me about it. I informed her that I was within my legal rights and she ended up winning the auction. :P I think she gave me neutral feedback, too. I was just glad to get SOMETHING for it so it wasn't a complete waste of time and she was satisfied to have the pic of her character.

[aazhie.livejournal.com]

I usually get the art to the person whenever possible. Shipping is cheap. If I really like it and they don't want it, I'll alter it for personal use or as a display piece.

If I cannot get in contact with someone for a year or more, it's mine to do with what I want as long as they weren't buying the actual original. If someone can't keep track of what's going on for more than a couple years or warn me they aren't online much, I usually try to avoid taking a commission from them :/

[ocelotish]

Yes you may sell originals featuring copyrighted/trademarked characters. We all know Disney would be all over this if it were illegal, but there is the original up for sale. 100% yes you may sell originals of whatever character you are commissioned to draw.

However, there needs to be a clear indication that you're not buying the original. For a given commission it seems like either they're buying limited rights or an original or a hi res file maybe? Make it clear what they are and are not purchasing and what that means.

With prints, I'd say it's more polite to ask or alter the character. It seems like there are potential issues with reproducing art of a copyright character. You had limited permission to produce artwork of said character, but not necessarily reproduce it. You can definitely change Harry Potter into wizard boy, but if JK Rowling had you draw Harry Potter, I'm not sure you could sell prints of Harry Potter.

[keaalu.livejournal.com]

"100% yes you may sell originals of whatever character you are commissioned to draw" - so long as the person commissioning you owns the trademark/character in the first place, do you mean?

On that link you posted, the picture is described as "It is rare, extremely rare, for Disney not to retain all ownership of original art for any of their projects. They do however, allow drew to retain his originals."
So it was painted with Disney authorisation (maybe a work for hire, I don't know?) in the first place, hence its legality.

[geewu10.livejournal.com]

Not wanting to get into "What I think is the way it should be" as to whether this is right or not, people should first educate themselves on what the laws of their country say is legal, and for that, I would refer to my Copyright FAQ (terriesmith.com/copyright.html) - it's mostly centered on the way it works in the U.S., but has links for a lot of other countries as well.

I will say that in this case, if the commissioner basically said "Draw me a picture of a fox & a wolf", that's pretty much up to the artist to fill in everything - and therefore retains all of the rights. If they say "Draw me a pictures of my & my mate's characters, they are a fox & a wolf, and here are reference sheets, and pictures, and their life story...", well, the commissioner has provided a LOT of the framework for the picture, and it's then not kosher for the artist for the artist to say "It's mine, mine, ALL mine, and I'll do what I want with it!" Whether the commissioner has trademarked the character is not really relevant - but if they have, it's an automatic NOGO for you to do as you please.

Now, if you say upfront that you WILL do whatever you want with the picture and the commissioner agrees, well, that's legal, but that might not be right on your end. ALWAYS make sure both parties agree on ALL the terms of commissioning. The FAQ covers most everything Terrie & I have dealt with over the years, it might be helpful...

[neolucky.livejournal.com]

An interesting read, your page. Although I must admit, I'm not sure I feel comfortable reading about the topic on a personal website where personal opinions can easily be interjected amongst facts. I find it better to link an official government link as some have done.