Using Commissioned Art for Merchandise: A PSA
I recently published a calendar for sale featuring various floating island pieces that people have commissioned from me over on Redbubble. I’ve gotten more than one inquiry about the ethics of doing this, including more than a few accusations of “sketchy” behavior. I recently responded to one of these inquiries in private, which became rather lengthy but which I think is useful to post publicly. I know this information is floating out there in other posts, but because of the frequency of misunderstandings, I thought it useful to put it out here again!
I’d first like to open this with a brief explanation of copyright and trademark law, because usually this question comes from a place of not understanding how those laws work. When an artist makes a piece of work, that individual piece of work is protected by copyright. No need to register the piece with the copyright office, though doing so can help in cases where your artwork is used illegally without your consent for profit. This applies to commissioned artwork as well. Unless it is specified in a written agreement (an exchange of emails can count), the copyright to a commissioned piece by default remains with the artist. The client is paying for the time used to create the piece. It’s a service, not a product (though it’s a bit of a combination especially in regards to traditional commissions where the original painting is shipped to the client). Even with traditional paintings, the rights to use the image remain with the artist by default. Because this isn’t widely known, I have it outlined in my term of service, a link to which is available on my front page of every gallery I have, and provided in email exchanges with clients before payment is made. Now you might ask, what about the copyrights of the characters? Don’t the clients own the character design? In an absolutely strict legal sense, the answer is no. Character design, unlike individual works of art, is not protected by copyright. However, a character creator can TRADEMARK their character, the process for which is a bit more rigorous than copyright. While trademark isn’t protected immediately upon creation like copyrighted individual works are, you need to actually file for a trademark according to certain specifications to have your character design protected legally. Examples of trademarked characters are Mickey Mouse and Superman. Ethically, however, the characters absolutely do belong to the clients! Despite there being no legal precedent, that is something I respect. Which is why I often alter commissioned works before selling prints, stickers, or other products of the piece. Some people prefer this. Some people find it insulting, and desire me to represent their character exactly as designed in my products. Most people don’t care, as they’ve read and agreed to be terms of service before paying for and receiving commissioned artwork. I do my best to respect the wishes of every client in this regard on an individual basis, within reason. A side note I want to bring up, because this is often a point of confusion, is the term “Work for hire”, which you will see nowhere on my terms of service. This is a specific legal term that applies to artists doing work for clients who will retain all the rights to the resulting work. Many people think “work for hire” means “any work which you are hired for.” This is incorrect, and the source of a lot of grief for artists. It’s important to know that it refers to a very specific legal term, and not ALL art which you are hired to create. Now onto my terms of service. If you take a look at the link here - tinyurl.com/katiehofgardtos You will see I have more than one clause covering this exact issue. Clause 14 outlines basic copyright law as it pertains to commissioned works. While not necessary, helps to avoid confusion. Most people aren’t aware of the law, and I believe clients should be informed. Clause 15 states that I do not claim ownership of the character, another concern that potential clients may have. By commissioning me, you don’t give over the rights to your character in any fashion whatsoever. They still belong to you, just as the artwork belongs to me. Clause 16 is an extension of clause 14, to further clarify that “rights” include the distribution of the digital file and sale of the image in any way. Again, many people don’t understand what rights are, so this is to keep them informed. Clause 17 outlines the limited rights that I transfer to a client, because some people want to make a print for their wall, or a t-shirt of their character just for personal use. That doesn’t harm me financially in any way, and I think it’s only right they get to do that. Every single client is given the opportunity to read this terms of service often in several stages; once before emailing me when I open for commissions, once in email exchanges before sending payment, and any time they wish to refresh their memory as it’s linked on all of my gallery pages. This is not hidden information, since it’s important to make the transaction go smoothly, and to protect both myself and the client. Commissioning me is a choice, and preferences for the use of the commissioned art absolutely do get taken into consideration within reason.
I want to end this by emphasizing that without the use of commissioned works for creation of prints and other products, I and many other artists who work almost exclusively on a commission basis are reduced to being laborers alone. We are paid for the labor of making brand new art, but would be denied the opportunity to make passive income from our own artwork through products and licensing. I’m someone whose business is mostly labor. It will eventually catch up to me physically, I will not be able to make brand new art for pay later in life. It doesn’t seem like it, but art is a physically laborious task which can (and has) resulted in repetitive motion injury which threatens my livelihood in the long term. But with passive income (making and selling merchandise, or licensing artwork for companies to do so), I can create a secondary income for myself which frees me to do BETTER work, hurts me less, and provides a needed source of income for my family, for which I am the sole provider. If you have questions, I recommend checking out from your local library this book - graphicartistsguild.org/handbo… Along with the courses I took in art school about copyright law, contract law, and common art business practices, this is one of my main up to date resources for building and maintaining the way I do business. My business practices are based off a combination of what I learned in copyright law/contract law/business practice classes in college, what I’ve read on my own, & common practices in the furry art commission arena. I’ve tried to create a balance that’s fair for me and clients!
This is a good breakdown Katie, and you are absolutely (legally) in the right to do this. The only thing I would do differently (mostly out of kindness and to clear my conscience on some admittedly muddy waters) is ask the customer if they’re OK with the use of the image, before using it. I find this to be a courtesy and not a hindrance, most people usually are OK with it and understand that an artist’s work is first-and-foremost their own.
IF someone has a problem with the use, I’ll most likely not use it and maybe even in the future be cautious about getting work from them again, especially if I am going into a commission knowing well I may use it for something else in the future. If it’s not beneficial for you to be commissioned by someone who is too holy about their characters, then it might be better to seek out someone else to replace them (of course, accounting for the demand and if there’s enough of it).
Customer service/satisfaction is a big part of the gig. I’m admittedly paranoid about this aspect and do my best to make sure each and every client is happy and not frustrated with me (I hate the confrontation of mistakes, honestly), so I may be a little more cautious about this than most people would be, and indeed like I said, you’re in the right here, so it’s not even totally necessary, just an extra step I’d probably take, personally.
Just my insignificant thoughts about it :)
That is one step you could take if you wanted to, yes! As you mentioned though, my terms of service and the information contained within are not in any way hidden. So a person has a clear and in no way obscured choice of whether or not they want to commission me, knowing I intend to possibly use it for merchandise later. In the paragraph after I talk about the legal side of character ownership, I talk about the ethical side of that and how I’m 100% down with respecting people’s wishes within reason. If a person isn’t ok with me using the art they commission from me for merchandise, they can either choose not to commission me, make a request of how the merch is made/presented (which is usually respected, again within reason), or buy the rights! I’ve had several people buy the rights to their commissioned piece and happily walk away with the ability to do whatever they want with the art, including reselling the large format digital files, or use it to make money by producing merchandise themselves.
For the most part, I want to keep the rights to my commissioned works because of the potential passive income it presents. Which is why it’s a terms of service content thing, and not a question I ask of clients separately. I would normally turn down a private commission if I weren’t able to keep the rights to a piece, so it just skips that step for me to avoid beating around the bush. Commercial commissions such as book covers are a different story entirely, where we work out a separate fee for rights.
In the end if you wish to ask your clients that question and they agree, the same result is met: clients are informed from the get-go, and any special requests are usually fulfilled! It’s all a matter of how you are comfortable approaching it. If this makes you more comfortable as an artist I say go for it.
There’s one place where I think the “you can’t copyright characters” breaks down a bit… Maybe I’m wrong, and I’m interested in hearing your thoughts.
This is in the “derivative works” section of the US Copyright law. Basically, if the original character reference artwork contained something sufficiently exact that the new art ceased to be simply an interpretation of the original reference, but actually derivative from it, I think the whole situation gets way more complex.
For example, if a character had a very complex sigil on their chest and, in the new piece, the artist had to directly copy that sigil, the copyright holder of the sigil seems like they would have a claim under the derivative works clause. In a more extreme example, if I commissioned an artist for a picture of a room with another artist’s work hanging framed on the wall, which took up most of the space in the image, clearly the second artist couldn’t sell that piece, as it’s really nothing more than a derivation of the original artist’s.
So where is that line in character design? I’m not talking about the character itself, but the artistic representation of it. Where is that line between “I am just drawing my interpretation of the character” (which should be fine) and “I am creating something directly derived from someone else’s representation of it?” At one point in time, I thought I knew the answer, then I read articles like http://foundrylawgroup.com/copyright-copywrong-what-are-derivative-and-transformative-works/ which really leave me scratching my head, unsure. I know photographers hit this routinely (which is where I know of it from): if a picture contains another copyrighted piece in the frame, they have to beware of their work becoming a derivative work of the thing which happened to be in the picture.
(And to be clear, this isn’t an area I would ever try to corner an artist on, demand they not sell things, etc… It’s really a question out of intellectual curiosity more than anything practical. While I’m not a lawyer, sometimes I think I should’ve been: these little edge cases really fascinate me. :) )
Fantastic additional information from Gilrandree, thank you!
