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Submitted on
November 13, 2012


19 (who?)
I'd like to take this moment to address a very important issue within the art community, and this is Copy Rights.

Recently I had had a situation with a client that reminded me that both parties- the client AND the artist- have specific rights that need to be addressed at the time of creating a design and/or illustration. Both parties need to have a CLEAR understanding of their rights, and ask any and as many questions until they feel as if they have the right information. Assumption and dishonesty are not good business foundations, let alone become legal liability in the long run. Lying on any side is the most common action that leads to bigger situations that at time, will be dealt with legally.

From here on in, the "Client" is the commissioner, and the "Artist" is the person in charge of design, illustration, and/or color.

1) The difference between "content" and "product/property".
When someone commissions you for a design, you have many different types of ownership. The most common being that the Client owns the "Content" of the image, but the Artist retains ownership of the "product/property". This means, if the Artist creates a design or illustration, the things going on in the image (the characters, and/or the environment, etc) is intellectual content of the Client. The Artist however, owns the actual image- therefore can display, and modify the actual image. The Client, however, can NOT do the same. They only have rights to the content, and therefore can only own [physically] the image, and display it [in some cases, not even display].
This can be modified of course, pending a discussion between the Client and the Artist, and an agreement on both sides to the extent of the re-use, modification, and distribution of the image. Do not assume because you paid for it, it's yours to do with as you please!
Unlike other products, art is considered "intellectual content" and therefore has more than one "owner" in several ways. It is not a blouse or shirt you bought and becomes yours... and even in that case, you might have bought a Nike logo on a shirt and the shirt IS yours, but that doesn't mean you can re-sell the Nike logo as your own.

2) Never lie about the intended use, recipient, and or purpose of the image!
This is a legal liability, as the Artisan retains the right to refuse work based on how their art is going to be used, or who is going to use it. The Artist might refuse to work for a certain organization based on personal bias, political alignment, or even for the simple fact they don't think the work will be put to good use [let alone some don't feel comfortable working with specific people].
When a Client commissions an Artist for work, they must be honest at all times about the intended purpose and the recipient. This is a HUGE legal liability- it might also involve third parties, as any misuse of the image might lead to have distributors and third party involvement also be liable under legal fraud [accomplices to].
To claim to be commissioning content for a third part is OK, so long as the Artist themselves is OK with working for an undisclosed [or disclosed] third party. But do not lie about working for a third party when in truth it is for yourself.
While this seems like a rational and very obvious thing to do, I have had situations where grown adults have decided to lie about the intended recipient of a tattoo or image... saying it's for a friend than admitting it's for themselves. While I will not even start as to what or why a grown adult would feel the need to lie about something that is their legitimate right to be doing, I can only comment that from a legal perspective it is a very VERY dangerous thing to do.

3) Never EVER comply to a third unrelated party to re-use, modify, or redistribute the product in any way, shape or form!!!
Both the Client and the Artist own aspects of the Product, and therefore cannot oblige it's redistribution or modification without the consent of the other [unless one party conceded all those specific rights to the other, or has bought those rights upon creation]. This lays more with the Client than it does with the Artist- as the Artist will usually states or explain the rights of re-distribution upon creation of the image. [Example: I retain the rights to sell prints, or make keychians of the drawing, but you cannot.]
In the event that the Artist does not- the Client has FULL RIGHT to request an outline of these rights, and discuss any change to them BEFORE the Artist begins to create the image/design.
Keep in mind; putting third parties into the equation makes the faulty side also liable for any damages retained by the third party- if they are brought up on charges of fraud or copyright infringement. The faulty party will be liable to pay them compensation for unwittingly putting them in an illegal situation. The Artist has full right to go after the third parties, even if the third parties were mislead and truly did not think they were at fault- trust me, no one ends up in a happy place in these situations.

4) Exclusivity
Like all artisans, we all have specific prices and fees for different images and property rights. Both Clients and Artist are responsible and in their full right to request and/or outline what the specific terms and conditions are, before setting to the work. Artisans might want exclusivity fees that waiver all their rights to a specific commission. Sometimes, these fees only cover some aspects of waiving rights. There is no "one term means the same" when it comes to art. You must ALWAYS clarify these things before you begin the work- usually while discussing fees.
Does the Client want to be the ONLY party that has this image? Then the Artist will want compensation for the fact they cannot re-use the image for portfolio purposes and economic purposes. Maybe the Client will be OK with leaving the display rights with the Artist, so long as they are not making money of it. All of this needs to be discussed prior.
HOWEVER- not matter WHAT fees are exchanges- the artist will always retain the credit rights to the image!
What this means is not matter what sum is paid, the Artist always has the right to say "I drew this". No matter what sum was paid, the Client cannot expect the artist to deny that they ever did draw or design the Product. The ONLY way to get around this, is if the Artist themselves do not care not to say it- however it cannot be put into writing and accepted legally; credit is the only thing that cannot be paid off.
Even though both parties might be ok with falsifying the product creation, it subjects all third parties to fraud- and so long as any person within any transaction is liable for fraud, or being fraudulent, it is an illegal act in the world of business and commerce.

To sum this all up; ask. ASK what is your right. Both Client and Artist. Both will want to know what they have rights to, and both have the right to ask such a thing. Do not assume. Do not go behind someone's back because "I felt bad to ask" or "I didn't want to offend you"... it is far more offensive, and far more ILLEGAL to assume you have the right to something, and misuse it because "I felt bad". We are grown adults in a grown-up world. Leave "feeling bad" in the playground. This is business, and it is the law.
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crocodiledreams Featured By Owner Nov 21, 2012  Hobbyist General Artist
Well-written. :) I have 'OMG BUT ITS MY PICTURE" stories, too, but fortnately not mine, personally -- generally it's people wanting copies of studio photos who get mad when they're told we won't make them.
tarkheki Featured By Owner Nov 21, 2012
I'm always amazed at how offended people can get, simply because their demands are not met. In this instance, where they want copies of images you cannot resell. I am consistently AMAZED at how our public seems to think artisans are at their beck and call [and disposal]. No doubt, your stories are just as infuriating and emotionally charging. I'll need to hear them one day- Face to Face [or you can note me some]!!! ;)
Ununununium Featured By Owner Nov 19, 2012  Student General Artist
thank you so much for typing this up!
tarkheki Featured By Owner Nov 19, 2012
Glad I could help. :)
Fox-The-Wandering Featured By Owner Nov 17, 2012  Student General Artist
Oh, wow! This is very educational! I did not know any of these things, but now I do. You learn something new every day. xD But anyway, thank you for posting this. :)
tarkheki Featured By Owner Nov 17, 2012
Glad I can help. :)
Fox-The-Wandering Featured By Owner Nov 18, 2012  Student General Artist
kageame Featured By Owner Nov 14, 2012
This is extremely educational! Thank you for posting it. I only know about copyright law based on if you make something and then sell it. Didn't know so much about it with regards to commissioning.
SilverZeo Featured By Owner Nov 13, 2012  Hobbyist
Aidan-Gull Featured By Owner Nov 13, 2012
It does seem like the differences are often confused and mixed up, or just not understood very well. It's good hearing it explained in a means that makes it easier to understand. Sometimes it's frustrating trying to figure it out, and I think it's easy for people to forget the laws are there to help protect their interests, or to keep them from inadvertently falling into trouble.

I certainly hope things are going alright for you and your clients in these regards. ^v^
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