Commissioning and Copyrights Followup
I wanted to write a followup to yesterday’s post, addressing some questions and critiques people have had.
Isn’t a commission a Work For Hire?
I commissioned an artist to draw my character. It’s my character so doesn’t that mean I automatically own the art?
You still own the character, but not the rights to the art by default. When you commission an artist, you are giving them permission to draw your character in that specific context. This doesn’t grant the artist full usage rights to your character, that character still belongs to you, and I believe the artist can’t turn around and sell prints of that art without your permission, because that is outside the original scope of what you’ve “licensed” them to do with the character (someone please correct me if I’m wrong here). But at the same time, even though it depicts their character, the commissioner can’t redistribute or edit the art without the artist’s permission. Basically, both of your copyrights are protected here.
If I buy a shirt or a CD, it belongs to me and I can sell it if I want. It’s the same if I commission art, right?
Ownership of physical commodities is not the same as usage rights of intellectual property. If you buy a painting or one specific print, yes, you can sell that specific physical print or painting to someone else. (Note: There are some additional rules about the transfer and sale of physical art that sometimes apply here).
If you buy a CD, or a shirt, however, you’re not buying the rights to the songs on the CD or the rights to the shirt design. You can’t make copies of the CD and put them up (for free or for sale) on the internet for other people to download. That would be copyright infringement. This applies to art you have commissioned as well. Visual artists retain usage rights of their art unless otherwise negotiated just like music artists do. They retain the right to decide how and where the art is distributed.
I think the confusion arises because commissioners assume that what they are paying for when commissioning an artist is the art itself. Technically, what you are paying for is the service. Unless the artist gives you a piece of physical property, all you are paying for is the creation of the art, not the art itself. And even if they do include a piece of physical property (such as a print or actual painting), you own that painting, but again, not the copyrights to that painting.
This gets even more confusing with digital files. Most people don’t realize that copying art electronically is still copying and posting it on websites is redistribution.
Well that’s not fair. You mean I paid for this commission and I can’t even post it on my Twitter? Do you really feel that commissioners shouldn’t be allowed to share the art they commission?
My previous post was intended as an explanation of the legal facts of art copyright, not as statement of what I personally feel commissioners/artists should or should not do.
In my experience, most artists tend to be fairly flexible about actually enforcing redistribution rights of personal character commissions. Many of them don’t mind if the commissioner posts the art online, edits it to use as an avatar, etc. But unless they have already transferred rights, they do still retain the legal right to object if they want to, and some artists aren’t okay with some (or all) forms of distribution. So the safest practice is to talk to the artist you want to commission and ask what exactly you are allowed to do with the art.
I believe (again, I am not a legal expert, so someone please correct me if I am wrong here), a conversation with an artist in writing (such as an email exchange) in which the artist says you can post the art to your twitter, for example, counts as obtaining legal permission, even there’s not an official signed contract involved. So all you have to do is ask the artist you’re commissioning what your usage rights are and they can grant them to you right there in their email reply! Obviously signed contracts are harder to argue with and easier to enforce, so I wouldn’t recommend relying on casual email exchange for a big job. Make sure you have a clear, signed contract for stuff like that.
Again, these laws don’t exist to make things frustrating or unfair for commissioners, but to protect artists’ rights. Imagine, if you commissioned an artist for a piece of art, and the artist assumed this was just a personal commission you were going to hang on your wall, so they charged you accordingly. But then you turn around and use the art as a logo for a major brand and start successfully mass-producing merchandise with it. You are now potentially making a ton of money off of the artist’s work; significantly more than you originally paid them for it. That is the sort of scenario these laws are designed to protect against. Because of current copyright law, you would be unable to do this, and the artist would be able to sue you for damages, since had they known you actually wanted art for commercial use, they likely would have charged much more or asked for royalties on the product.
If, however, the artist relinquished all usage rights to you in writing, you are in the clear. If they signed a contract, knowing that by signing it, you can do whatever you want with the art, and they later see you making much more off of it than they did, that’s on the artist, not on you.
Artists, if you want an easy way to grant commissioners some restricted rights to the art you have created for them, I recommend looking into Creative Commons! This is a great way to licence your work for personal use, while still requiring things such as attribution, and restricting commercial uses of the work.
*Disclaimer: Again, I am not a legal expert. This is just based on my personal experiences working as an artist and my own readings on copyright law. Please consult a lawyer if you need professional legal advice.
