Do you expect commissioners of non-digital furry works to own the physical work?
Posted by GreenReaper (Laurence Parry) on Sun 15 Aug 2010 - 17:11 —
Edited by crossaffliction as of Mon 10 Aug 2015 - 01:56
Without a doubt; the artist can't just resell it!
26% (13 votes)
It's an implied part of the contract, but they must pay for shipping within a reasonable time.
40% (20 votes)
Some artists do that, but I consider it a bonus.
12% (6 votes)
No, it has to be negotiated; the artist can sell the work to someone else.
20% (10 votes)
Who cares? Digital is the future!
2% (1 vote)
My response is what I would assume in the absence of any terms and conditions that address who gets possession. Anything spelled out by the artist or agreed upon by the parties involved would take precedence.
If a person buys a piece of art, he owns the physical artwork, plain and simple. What he does not own is any of the reproduction rights associated with the image, unless they are specifically included in the sale. Ordinarily, the artist retains those rights. But the buyer can do whatever he wants with the original, including selling it to a third party; he just can't sell the reproduction rights, as he doesn't own those.
To provide a little perspective: the question arose from this artists_beware post, in which there was a difference of opinion over the ownership of commissioned works.
I didn't read through the entire discussion, but from what I did read it seems that it comes down to, not too surprisingly, a lack of understanding and a lack of education on the matter of copyrights. That can be best resolved by a visit to the US Government's Copyright website. But a lot of confusion and conflict can be resolved at the time of commission if the artist makes it clear at the onset as to precisely which, if any, of the reproduction rights are included in the sale. The artist, at the very least, should make it a point to know copyright law as it relates to him.
This is indeed a problem, but the commissioner also did not expect the physical artwork to be resold, while the artist felt it was reasonable to do so (there were communication issues with arranging shipping).
The issue was resolved, but in passing some artists mentioned that furry fandom was unusual in that commissioners of art expected to receive the final work, rather than full reproduction rights - the opposite of their experience in the world of advertising.
There was a debate over whether the ownership of the physical work was (or should be) considered an implied term of the contract, or a privilege, at least for commissions within furry fandom. This is what the poll is aimed at.
From what I saw, that was a completely different issue: the fan commissioned an artwork, there was some communication foul-up and when the work wasn't paid for or claimed by a specified date, the artist sold it to someone else entirely. I don't see any copyright issues involved there.
I am surprised that anyone in the fandom -- furry or otherwise -- would expect anything other than actual artwork (although there is more digital work these days, such as icons). The given used to be that you were getting a painting or a full-fledged drawing on paper or canvas; something you could hang on the wall. So I don't find that at all unusual. I find the expectation of the reverse to be unusual. I would have assumed a growing awareness of reproduction rights to have risen out of the artists' need to protect themselves against the dangers of piracy and infringement on the internet rather than as a result of their inexperience with dealing with a fandom clientele. Interesting.
I would agree with Chuck, with the exception that a character in the art in question does not belong to the artist themselves (such as the recipient's fursona)
True, but that has no bearing on the ownership of the image's rights. The artist owns all of the reproduction rights to the image unless they were a specified part of the purchase. That means the artist can reproduce the image however he wants (as part of a portfolio, as part of a pictorial essay, in a published collection of his art, etc) regardless of whether or not the characters in the image belong to him or not. That doesn't mean that he can't or shouldn't include a tag identifying the characters, their owners, the current owners of the physical artwork, etc.
At the same time, an artist can't do much if his artwork contained a trademarked character, like, as an example, Sonic The Hedgehog. He could use it in an example of Fair Use (meaning, as part of a review or published article) and I think he could still use it in portfolio collections, but in any other venue his uses would be very limited, given that the character is trademarked; he couldn't produce a book about Sonic and use the artwork as a cover, for example.
Even if the language is informal and not legalese, artists and commissioners should come to a written (typed) understanding as to what shall be the disposition of the physical media (if any) and what sort of rights are being granted to reproduce copyrighted content. There should be explicit acknowledgment of the mutual agreement. Each party should keep copies of the correspondence.
This shouldn't be that difficult, but it is.
EDIT: I know that, at least in the US, the artist retains copyright of any commissioned work, except if negotiated otherwise. Is possession of physical work governed almost exclusively by contract law? Because if that's never explicitly mentioned, resolving that dispute could get messy, unless there's a clear statement somewhere in the laws about this.
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