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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.
Why?
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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:iconcrocodiledreams:
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.
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:icontarkheki:
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]!!! ;)
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:iconunbadger:
unbadger Featured By Owner Nov 19, 2012  Student General Artist
thank you so much for typing this up!
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:icontarkheki:
tarkheki Featured By Owner Nov 19, 2012
Glad I could help. :)
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:iconfox-the-wandering:
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. :)
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:icontarkheki:
tarkheki Featured By Owner Nov 17, 2012
Glad I can help. :)
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:iconfox-the-wandering:
Fox-The-Wandering Featured By Owner Nov 18, 2012  Student General Artist
^^
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:iconkageame:
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.
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:iconsilverzeo:
SilverZeo Featured By Owner Nov 13, 2012  Hobbyist
Kay.
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:iconaidan-gull:
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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:icontarkheki:
tarkheki Featured By Owner Nov 14, 2012
It IS true- the legal terms do get confusing, but the moment you have a guide to them, things clear up drastically.
i can say that in all honesty, only a handful of people are quite aware of when they are breaking the copyright law... most of the time it boils down to plain ignorance, and a faulty feeling of weird personal emotions that compels people to do the unsafest things. it's why i wanted to post this- to have it out there for others to understand. :)
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:iconaidan-gull:
Aidan-Gull Featured By Owner Nov 14, 2012
Always good to know these things. ^v^
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:iconblack-wren:
Black-Wren Featured By Owner Nov 13, 2012
Very helpful and insightful. Thank you for the post.
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:icontarkheki:
tarkheki Featured By Owner Nov 14, 2012
My pleasure! If it can teach and help, that's the way to go! :)
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:icontanithlipsky:
TanithLipsky Featured By Owner Nov 13, 2012
INDEED.
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:iconsillysortawonderful:
SillySortaWonderful Featured By Owner Nov 13, 2012
Thanks so much for this. It's really informative and something I definitely need to keep around to know my rights as an artist. These were things I always wondered about but wading through the legal system to try to figure it out is awful.

Do you by chance know the legal rights of fanart? I know you've done some and it's something I've always been lost on. The copyright belongs to the original creator I'm sure but then you have things like Artist's Alley where the artists are openly selling fanart and considering the creators are in some cases literally in the next room you would think they would say something.
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:icontarkheki:
tarkheki Featured By Owner Nov 15, 2012
The issue with fanart is a straightforward one; so long as you are not making any for money, you can do it.
Here is where the loophole comes in; Anime- because it's creation is in Japan where their copyright is different- is the only that gets away with making profit from the fanart. Thing is, depending on the American distributor, some items cannot be sold under "fanart"- i.e. plush of characters that have already been made, jewelry, etc.

Usually, even American companies turn a blind eye to small time profit [prints] at cons, simply because it IS a form of "free advertising" that they gain from fan excitement. SO long as there isn't any obvious trademark insignia, names, or concepts printed, and it can be very obscure- it can pass.
Example; if you were to take a look at my "Star Wars Tarot" series, these images hold no verbal insignia to the characters, names, franchise, etc. It's obvious as to WHAT they are, but nothing that hard core ties them in. SO, given a convention, I am able to sell a handful of prints, form a selected few cards without getting into trouble. However, if I were to mass market the cards, and sell them as a series in a commerce environment, I would be legally liable for breaking the copyright laws.

Bottom line is; if you are not sure, just don't do it. You can see that DA is FULL of fanart, and no one has gotten sued- because mainly, there is no profit being made of the content of these images. However, if you fear that something might cross the line, simply do not do it! It's far better to be creative and unique in the business of art, rather than spending your time doing fanart... so honestly, you haven't lost much by doing something new and non-fanart related.
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:iconsee03:
see03 Featured By Owner Nov 13, 2012  Professional General Artist
Very informative and important to know. A lot of this I think most artists know instinctively, but its good to have in writing that we can reference to when negotiating with clients. Thanks!
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:icontarkheki:
tarkheki Featured By Owner Nov 13, 2012
You'll actually be surprised to find out that most artists and clients do NOT know this "instinctively". In fact, most of the time they can't even answer questions on property rights when it comes to redistribution or reselling of prints, etc. I think those that dealt with the industry long enough get the gist of it.. but even then, we have a legal department for a reason! XD
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:iconsee03:
see03 Featured By Owner Nov 13, 2012  Professional General Artist
Really! Well you are absolutely right that I'd be surprised, haha. Maybe its just because they teach our rights to us a bit at school.
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
Very interesting read. I have different sets of prices for regular commissions and commercial ones, but this more clearly defines what that entails. I'll definitely make sure to discuss this in more detail with future clients... I've heard making a contract is a good idea too.
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:icontarkheki:
tarkheki Featured By Owner Nov 13, 2012
Contracts don't necessarily have to be written up and distributed to be in good standing- any written agreement can be concluded as a contract. However, having one on hand that outlines the rights, and can be refereed to frequently is a really good idea!
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
Sometimes I wonder if we'd be better off to get rid of copyrights entirely.
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:icontarkheki:
tarkheki Featured By Owner Nov 13, 2012
That's a bullshit thought, and bullshit notion. If you are trading your craft for income to feed a family, it's a surefire thing you want in order to protect yourself from being robbed blind by other people. If we got rid of copyrights, I'd be able to take possession of anything you come up with, and make my own fortune off it and you would have no say, and no pay. It might not be a "big thing" when you cannot establish yourself within the art industry, or you simply want "free music"... but once your creative services are given to it, it's the only thing from getting you knocked off and on the streets begging for food.
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
However under the current system I could probably already get away with all that, so what do we possibly gain from it?
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
Then what? The art thieves would have free reign to sell and distribute anything, and the artists who put in the hard work wouldn't be able to do shit about it. That's the last thing we want. :/
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
Copyright abuse is a lot worse then a few art thieves and most courts don't care about your copyrights unless you have serious money to spend on protecting them.
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
So if you realize that, why would you say to get rid of them? 8|; Getting rid of them would mean zero protection.
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
Most of us already get zero protection with copyright laws. They aren't meant to protect you, they're designed by the bigger companies to protect them, not us. They only care when you use mickey mouse or bugs bunny, they could care less about your art or your characters getting stolen and used or sold without permission.
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
So what would getting rid of copyrights do? If anything the system needs to be revamped or done over, not scrapped entirely.
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
Well for one it would stop people from getting things they don't like removed because of false and fraud copyright claims.
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
You're going to have people abusing the system no matter what. Taking the system out entirely doesn't help anyone; people may not be able to falsely take down videos, but the legitimate claims wouldn't hold any ground either.
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:iconurahara1001:
Urahara1001 Featured By Owner Nov 13, 2012
Your point is valid, but I do agree that the current legal system for copyrighting is fairly broken, in that it's being abused by big ticket labels to alienate end users in the name of profits. Thus why lengthy explanations like these are created. If I commission a piece of work, I should be allowed to use it how I need, simple as that. As long as the original artist is credited and I'm not making a direct profit from selling the work, there shouldn't be a legal issue. I believe the Creative Commons license do a much better job at allowing an artist their intellectual rights without sacrificing what I consider common sense.
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:iconmrgundam:
mrgundam Featured By Owner Nov 13, 2012
Admittedly I'm not that apposed to the ideas suggested, but a lot of it is how things should be, not how they often work out in reality.
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:icondeus-nocte:
Deus-Nocte Featured By Owner Nov 13, 2012  Professional Digital Artist
I can't agree with you there. It is not your right inherently as the commissioner, it's what you and the artist you are commissioning agree on. That's the whole point this journal is trying to explain. Even aside from the legal issues, if an artist doesn't want their work (commissioned or otherwise) reposted on other sites or edited for icons, backgrounds, etc., it is fully within their right to request that. If you don't like it, you can commission someone else that doesn't mind that sort of thing. There are plenty of artists that don't mind, myself included, but for those that do... it should be respected.

And if you're still adamant about using that artist, you might have to pay a little more for those privileges. And why shouldn't you? The more rights you want with the artwork, the more you need to buy. It's only fair.

The same goes with any media; music, anime, tv shows, whatever else. How it can be used by the consumer after it's bought should be decided by the creators or the company they're contracted with. Is it a smart idea to alienate their consumers? Of course not, and they'll be shooting themselves in the foot by doing so, but that doesn't make it wrong. Drawing a line for the sake of profits is not a bad thing, it's how artists and companies are able to keep producing the work that people enjoy.
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:iconurahara1001:
Urahara1001 Featured By Owner Nov 13, 2012
I can agree with you that it is the artist's choice if they do not want their work reused in other ways not originally agreed upon when the commission is made. However, my point is that I do not feel that should be the default position to take up, which is the case with copyright laws as they are. The standard should be made loose to protect the base rights, but still allow for those who want to leave those extra restrictions available to do so. If you as an artist want to place a further restriction on standard law, that is up to you when you draft the terms for your commission. Again tying into my point that I feel the Creative Commons License does a better job at; there are varying levels of freedom allowed, rather than the single blanketed level that current copyright laws have. Which of course can all be modified via contract.

In short: it's fine to have further restrictions if you choose, but don't force that as standard for everyone.
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:iconaurorabluewolf:
AuroraBluewolf Featured By Owner Nov 13, 2012
someone try to jip you on your work?
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:icontarkheki:
tarkheki Featured By Owner Nov 13, 2012
More like, someone had not clue to what their rights were, and ended up seriously violating huge clauses in the standard Copyright laws. They put 3rd parties in danger as well. It was a close call.
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:iconaurorabluewolf:
AuroraBluewolf Featured By Owner Nov 13, 2012
Wow. I take it you got your rights back? Or do your DA fans need to go beat someone up?
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:icontarkheki:
tarkheki Featured By Owner Nov 13, 2012
No, I do not ever EVER condone bandwagoning against anyone. I do not expect my patrons to do this, nor do I even WANT them to. I do not support bullying in any form, and if I do have beef with someone, I will handle it myself in a grown up fashion. While appreciate the show of support, I do not want anyone to misread or misinterpret a statement like that, and act in a way I consider childish or lowly. My biggest pride is in that, that my art patrons have always been above bandwagoning, and schoolyard popularity tactics. :)

I actually didn't get "rights back"... I had to simply outline to a client who overstepped boundaries what were the terms, and what they were and were not entitled to. In doing so, I figured it was a good community step to sort of address this, so others could avoid a potential problem in the future. :)
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