The downside of doing commissions
JonnyRay
Posts: 1,744
I just had a conversation with an friend who was upset about an article they had read. The nutshell of the situation was that an artist was commissioned for an image of an MMORPG character. In the image the character was naked and being burned at the stake. The person paying for the image made it appear that this was a death scene for their own character. However the reality was that it was another player's character and the image was then used to embarrass and harrass the other player repeatedly via social media and gaming forums. The artist who created the image was dismayed that their work was being used to cause someone else harm, but there wasn't very much they could do about it.
Caveat: I am NOT a lawyer and the following is from my understanding of current US copyright laws. If you are very concerned about this, you may want to get the advice of a lawyer who does understand copyright and intellectual property laws in your country.
Update: The following information was incorrect. Fishtales corrected me in the thread below. Unless you explicitly grant the commissioner additional rights, you still retain ownership of your image and have only granted them the right to use it.
Here in the United States, as a general rule a commission falls under the "work for hire" clauses of copyright laws. Basically without any other written agreement in place, the person who paid you to create the image has full and exclusive rights to that image and can do whatever they wish with it. Once you have delievered it to them and they have paid for it, they can post it, print it, publish it, re-sell it, wherever they like and you can't stop them. Techincally, unless you have their explicit permission, you shouldn't even include that image in your own galleries.
So what can an artist who wants to perform commissions do? There are a few things that we came up with which may help protect the artist.
- Know your client.
- So far the commissions I have done have all been for people I know either directly or indirectly from the Secret World Legends MMORPG community.
- If you know the person / character you're going to portray you can be more certain that the person isn't asking for something they don't deserve / own.
- Similarly I have at times had requests to include someone else's character (whom I have already rendered before) in a new image. I always reach out to the person who "owns" that character, describing the image I'm being asked to create and get their explicit permission to use their character in the new image.
- Set some limits.
- For me personally, I wouldn't have created the image that was being asked for in the example above. I make it clear for my potential commission clients that I have limits and boundaries of the type of art I'm willing to create.
- If you aren't creating controversial images, it's harder for them to get used in a way that might make you uncomfortable.
- Set legal use boundaries.
- Don't give away your ownership rights unless you really want to. And even then I might charge significantly more since I'm surrendering my property to them.
- You can file a DMCA Takedown Request to try to get it removed.
I've mentioned before that doing commissions will change how you view your work. When I'm doing something for someone who is paying me, I feel much more pressure to create a quality image and in a reasonable amount of time than when I'm just doing something fun for me and my friends. It turns your "hobby" into a "second job" and that isn't for everyone. This latest issue with the lack of control that you'll have over your work once it is delivered is just another example of why getting paid for creating an image may sound better than it really is in the end.
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Comments
If someone commissions you to do something then you own the Copyright but give them permission to use it. Unless you are an employee of the person who commissions the material then they own the copyright.
https://www.newmediarights.org/business_models/artist/if_i_pay_someone_create_something_me_do_i_own_copyright_work
Fishtales is correct: unless you're an employee, as defined by labor law, of the person commissioning the work or you explicitly sold or otherwise surrendered the copyright, the copyright is yours. All the commissioner owns is a single copy (or whoever many copies were agreed upon) of the image. It's no different than hiring someone to photograph a wedding or other event: the client receives a set of prints, but the photographer owns the copyright.
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Actually if you set the terms first you don't have to loose your copyrights for commissioned art . I do a lot of consignment work for animation & I have run into this situation on YouTube. Which is why i ended up having to have a terms of services policy on my art & animation work. Once you have a public document on your own website stating what can & what can not be done with your art works and is used for clients to accept before any commissioned work being done. or a written contract agreed upon by both parties, Gives you a legal footing when submitting DMC take downs of your art work that violates your TOS policy, Only because you had set fourth the terms before accepting & releasing the commission contracted works. To me its the only way to cover your butt dealing with copyright issues. Just because you may have created the art for a person or company for money does not mean you have to give up your copyright on how it is used if you had set the terms first. its all in how you contract the art.
About DMCA takes downs https://www.artbusiness.com/dmca-takedown-notices-for-artists.html
DAC for commissioned art https://www.dacs.org.uk/knowledge-base/factsheets/commissioned-works
My own copyright and terms policy for examples http://www.ivysdomain.com/Site_policy/animation-copyright-page.html & http://www.ivysdomain.com/Site_policy/1000000.html
edited: I should have mentioned laws vary from state to state and country and regions too so some laws that apply in the USA and UK may not apply else where. that has been a issue with some pirates sites in some countries I have had.stealing my animation and then using them to sell ads on social sites in other countries.
In retrospect, I probably should have posted this as a question instead of a statement. :(
I've updated my OP based on the feedback. Thank you for the corrections!
I would say that for anyone where this is going to become a significant income stream, a consultation with an intellectual property lawyer may be worth the investment. For me, it's just an extension of my hobby. Everything I've "made" from commissions (which tbh, is only about $100 so far) went right back into buying more Daz content. :)
People could use anything to bully somone else. Someone could just as easily use a pose or a character sold at the store, to depict a graphic image that could be used to harrass.
In this case, the artist kind of goofed by doing an explicitly dark naked snuff pic for someone they didn't know too well. Not a great decision and probably he or she should avoid imagery of that nature...He is still not responsible for the harrassment though.
All the laws and rules in place, will not stop someone from using somehting to harrassing someone else. You can perhaps protect yourself, and say 'don't do that' and try to stop them legally and avoid depicting certain imagery but most people do not have the resources or time to stop someone intent on harm assuming they even find out. The onus is on the perpetrator who is misusing the art.
Amen
Been there
done that
don't ever wanna go back
Yeah, Serene, it's why the initial feedback I had to my friend (who is a traditional pen and paper based artist) was that if you're doing commissions, you have to be willing to let go of the idea your art it is fully yours and under your control. You are after all giving them the right to use the image. T&C may help, but if someone wants to do something bad, there's nothing to stop them. And then you'll have to be willing to spend the time and energy getting them to stop.
If I ever found myself in such a situation and I was worried about my reputation, I would also do my own PR to make it clear that I was not collaborating with that individual and wasn't aware of their intentions when I created the image for them.
Hi JonnyRay.
The advantage your friend has over most people is he knows who's being harassed on the internet with his art work.& your friend should know who the person he made the art work for that is being used in offensive manner, He could forward that information to the proper people to make it easier for the victim to take actions against the harassers. & in this case I would out the person doing the stalking publicly to protect my reputation and the give the victim the information of his stalker. A lot of people harassed or trolled/stalked on the internet never have the luxury of knowing who their stalker/harassers/trolls are. it could be away of righting a wrong.
I know some people do it . But personally I would never commission work with out knowing who I am doing the work for & I ask what the project goal is just so I can make sure i can fit the art to their needs. . Specially if your going to sell the art piece and turn over the copyrights of your work to a new owner , you should get the person name and address, phone# & how to be paid information for your own records & protection. But that is just my opinion.
...yeah I wish I could set a TOS on DA I've had to block so many there who have faved illustrations of my characters (particularly the younger ones) in collections with BDSM, vore, and sexually explicit scenes. Doing so breaks the link to my gallery thus removing them from their fave collections. I've also blocked downloading and sharing of images as well which si the most I can do to protect them there. Cannot afford a server of my own or a domain where I can set hard fast rules. Also don't have the skills or tools for designing Net sites.
It's impossible to stop anyone from taking a screenshot of a picture in a normal browser, which defeats all other attempts to avoid copying. If all else fails, if you can see it you can always take a photograph of it.
Heavy watermarking or pictures so small that upscaling them reduces the quality too much may be the most effective, but both options are just devastating to art.
...yeah DA's watermark is often tends to obscure details too much.
We need protection like Brick & Mortar galleries offer by prohibiting photography. There has to be a way to interfere with the screen shot process through the site software detecting keyboard input when viewing an image, and if the Print Screen key is detected, it would do nothing. True it wouldn't stop photographing the screen but that usually results in a low quality image.
Not gonna happen. I haven't used the "print screen" button in decades. Yet I take screen grabs all the time.
This! I will always help the police and courts put somebody away, especially if they are stalkers, and especially if they used something I created for them.
...so if you don't use Print Screen, how do you make a "screen grab"
...and if there isn't any means of protection, we as digital artists either cannot show our work at all, or have to simply accept it being pirated and even abused if we do. That is unacceptable. We don't have the high priced lawyers on retainer that say, professional musicians and film studios have to issue cease and desist orders under threat of a lawsuit.
Right click, save?
So a photographer can then have your wedding photos, studio portraits of your child, etc. placed on a site selling stock images and make money off your personal images? Well, this is an eye opener.
That can also be blocked in the site code - but there are screenshot programs that use different keyboard shortcuts than 'prtsc' and often these are higher quality than windows' native screen-capture.
I am assuming that everyone realizes that if you post images on a website that can be viewed, that the very act of viewing them with a web browser dutifully downloads (or uploads, depending upon the perspective) a copy of said image to the viewer's web browser cache on their PC. They thus now posess a copy of said image. No need for user action such as screen captures. Illegal? Well, only if the use of web browsers is illegal, since they all do that.
I use a little tool called “Snagit”. It has very good tools for annotation and documentation, and in fact it works very well when providing audit evidence and documentation. There are other tools too, such as the Windows “Snipping Tool” and so forth. In this age of corporate over regulation, there’s no way ever ever in a million years anybody will be successful blocking screen prints, unless you’re going to produce machines where it’s not possible in any way, shape, or form. Good luck trying to sell something like that. Corporations couldn’t buy such a thing and still stay in compliance with laws and regulations, and individuals would have zero incentive for purchasing something that’s gimped like that.
People will always figure a way around whatever protections we put on images. :)
.."right click, save Image as", if the action isn't blocked by the site.
...so effectively there is no more copyright protection when it comes to digital art unless it never leaves your system.
So much for making a little extra from commission work.
Seems in this biz, there is more spent (time-wise, effort-wise, and money-wise) on the means to sidestep the law than preserve protections for the creator. Sad.
Why we as a society put more effort and resources into destructive processes than constructive ones never ceases to amaze me.
I’ve never thought there was any way to prevent piracy of art posted on the web.
You may obscure it with watermarks or make it tiny and difficult to view but if it’s on the web and visible it’s takeable and really always has been.
Actually you can't put images of people or properties for sale to stock sites without model or property releases if under commercial. You can if its under editoral though. yet most people don't want images for editoral. unless there famous people.
..the issue is that the Net is where a lot of indepndent creative work is heading. It makes it much less complicated (and less expensive) to self publish. Think of it, having ot publish a "dead tree" illustrated novel is costly. There also a lot more physical work involved in drawing/painting the illustrations. Next, there's the distribution angle of having to get it into stores without a big name publisher backing you up (which usually means compromising your work to make it "saleable" in their eyes).
Many years ago I received critique on my Sci Fi story, which I planed to present as a graphic novel, not over the content or storyline, but because the females of the primary race (feline based) in the story didn't have breasts and pronounced hips, so thus, it would not "sell". Apologies, as that was my vision and felines do not have extended mammeries like humans do. I ended up mothballing the project after that, as doing all the writing, layout, pencilling, inking colouring as a "one person show" and covering the costs up front for printing and finding the right distibution channels made it unfeasible.
Now with 3D CG, I could realise publishing such a work on my own without having to "sell" it to a publishing company by doing it as Net publication. However presenting it in that format means the story, and/or images from it, would lbe subject to piracy and because of the way things are, I would have no legal recourse to protect it. compared to doing it in "dead tree" format which could be copyrighted and trademarked.
There are devices available that fit inline between your computer and your monitor that will capture anything displayed on your monitor including videos with sound. If your monitor is displaying it, you can copy it.
And I say again, a user viewing your work online has to do absolutely nothing to possess a copy of what they have viewed. That is done automatically by the web browser. Here is an example using the main DAZ3D home page:
Upon opening the DAZ3D homepage in your browser you are presented with a variety of web content, all of which is immediately copied by your web browser to its cache on your hard drive so that the screen, which needs to be regularly refreshed, can be refreshed from the content in that browser cache instead of needing to be continuously downloaded from the DAZ servers. It has always worked this way since the earliest web browsers, and they all do that to this day. The user has no control over that beyond flushing their web browser cache periodically. The entire internet as we know it is predicated on web browsers functioning in this way. At any given point in time any web user has a ton of technically copyrighted material sitting on their hard drive whether they want it or not, through no deliberate action on their part, and no way of preventing it short of ceasing to use the internet. To illustrate my point, the DAZ3D homepage has a number of images drawn from the Galleries that they use near the top of their page, forming a kind of banner that periodically streams a number of such images. Those images are technically copyrighted by their creators. I closed my web browser, emptied my browser cache, then re-opened the web browser and went to the DAZ3D homepage. I then closed my browser once again, went to the location of my browser cache using Windows Explorer aka File Explorer, and located that excellent render of the reclining woman with the grungy face, which had been copied to my hard drive by the browser. Full size, 1800 x 710 pixels, very nice. I didn't deliberately download it, but there it is, on my hard drive, where it would remain until I flushed my browser cache. (BTW, I was surprised to find that the other images that are currently used to populate that part of the web page, which had not yet appeared before I closed the browser, also got downloaded to the cache).
....but that is totally in the browser's cache, it isn't actually "hard written" to the HDD unless the user takes physical action through either a copy/paste or screen shot to save it.
Be that as it may I am involved with Creative Future which is working to get "real" copyright protection for digital work and fight piracy.
What you’re lamenting is NOT caused by technology. Technology is only one of many enablers in this. I see the root cause as the cultural/societal permissiveness toward copyright and intellectual property violations. That’s a fancy way of saying that we don’t care if people steal; not really. We sure didn’t get here just because some geek made a really good monitor or another geek figured out how to save screen prints.
If we really did care (as a society, that is; I’m not blaming anybody here for this), we would have better remedies. And maybe harsher punishments. But that won’t happen as long as there are whole countries who actually promote that activity, and entire swaths of people willing to accept some losses and call ‘em “shrinkage”.
To go further in this topic would be to invite having this post pulled, and I sure don’t want that. This is a critically important topic, but there will be some who will just reject it out of hand. I’ll just leave it at this. The technology is not the cause of theft (which is precisely what Intellectual Property theft is). So by definition, it cannot be the solution. Technology might make the theft a hassle, sure, and may even discourage some activity. But until the root cause is properly eliminated, you will struggle with some level of losses in your commission work. Maybe even in all your work. Companies have enacted all manner of measures to prevent or reduce it. NDAs, for example. PIAs for another.
So how to fix it? I’m not sure we can, but I do see the choices as very simple, and because this is not really very complicated, very few:
1. Do nothing and hope it gets better
2. Change the laws around the world, then enforce them and hope it gets better
3. Change peoples’ hearts and hope it gets better, either in the current generation or with the next one
I like #3, but I always have, and I still see it going in the other direction. The RIAA is doing it. The people who make movies are doing it, telling us that 15,000 jobs were created because this or that movie was in production. Even Tolkien did it in his original Hobbit and Ring books, so the idea isn’t new.
But are we ALL willing to do it? Are we ALL up for a really hard multigenerational challenge?
And where do we start? Do we start with all the people who have graduated and no longer qualify for the “student” versions of Microsoft Office, Adobe Everything, and Corel Everything Else?
I don’t know. Ideas? Can we make it better, in our lifetimes?
""hard written" to the HDD"
I'm not certain what you mean by "hard written", Kyoto. The image I was referring to is a file saved on my hard drive like any other. Its a .jpg image. Not links, but a full copy of the actual image. It would kind of defeat the purpose of the browser cache if that were not the case. If you are referring to the fact that the browser can be set to do routine housekeeping, then yes, in that sense they are not permanent. But until deliberate action is taken to remove them, they are no different than any other files. If you are saying that they are somehow inaccessible to the user, you are mistaken.
Here is the image that I was refering to, pulled straight from my browsers cache. Return to sender.
...however, big publishers, film studios, and organisations like the RIAA or BMI can afford to retain high priced lawyers and lobbyists to come down on piracy. We free lancers cannot. We need someone to advocate for is, to defend us and our intellectual property just like the "big boys" have. All this talk of entrepreneurship, and "doing your thing" means nothing if someone can rip you off so easily.
This thread seems to have drifted, and to be getting into risky areas.