My commission turned to print

[comix4fun]

Did you sign any kind of agreement with him? You could file for copyright rights and try to collect royalties for the sale of the prints.

 

 

Doubt it would work. Artists hold copyright to their work unless that was worked into the original deal. I've done enough of these to have dealt with all these issues more than once. All we are buying when we commission artwork is the piece of art itself.

 

So help me here... the original commission is for an original piece of artwork (proprietary), correct??

 

And then after being paid, the artist unilaterally made the decision to create a set of prints (derivative works) based on and off of the proprietary work??

 

And you're stating that the artist holds all of the rights??

 

The commissioner owns just the piece of art. The tangible thing they hold in their hands and nothing more. It's a simple property right, not rights to the intellectual property. Only explicit agreement between the parties can transfer copyright.

 

And it's not me stating it as just my opinion, it's established case law including SCOTUS chiming in on the subject. Read further down the posts you'll find the work for hire test they ran through that eliminates that possibility too.

 

I appreciate your willingness to cite SCOTUS but you are incorrect that its property rights - it’s a breach of contract - and it’s actually the breach of an expressed agreement implied by conduct - and its a “writing” that allows for the transfer of a copyright - but Rick isn’t creating prints for sale off of his piece. Rick purchased the right to a unique piece - that’s what a commission is. In fact, I'd be willing to suggest that Rick's understanding meet the 5 requirements for a state based contract and its arguable that the artist chose at a later date to violate the essence of that agreement.

 

 

 

 

 

Did you actually read that case? Did you read anything about what the courts have established on this exact issue? Citing common law contract rights when there's established court mandated standards seems the fastest way to get to the least accurate answer.

 

The amount of time I've spend in this specific area, and the amount of experience I have at this particular area of law tells me I am happy and confident that I haven't misread anything given the specific facts that Rick laid out here. I've commissioned more artwork, dealt with more artists, and specifically dealt with more issues exactly like this in the last 20 years than I can remember.

 

I am sure you are aware that basic contract law principals and "express agreement" has all of its terms laid out before execution and, usually, in some form writing. That's what makes them "express" or "explicit" terms. That there's a difference between reading the express terms between the parties and attempting to divine the terms through conduct. That includes "expressly" transferring copyright. Do you see any reference to the artist expressly transferring reproduction rights and copyright to Rick?

 

Being that the basic format commission exchanges take is for the artwork and the artwork alone. do you see any "bargained for exchange" mentioned that the artist agreed to not only give up the original artwork but also give up reproduction rights to the piece? Without expressly stating that those rights are given up, they simply aren't.

 

Do not conflate simple possessory rights with intangible property rights which carry distinct protections. Filling in the gaps of the agreement between Rick and the artist by assuming there was specific language transferring copyright isn't getting anyone closer to the truth. It's a hypothetical not supported by the narrative Rick has already provided.

 

Rick got exactly what he bargained for, the artwork. If he wanted anything more he needed to bargain for more.

 

I'll go through it one more time.

 

The test is simple:

 

1) Is the artist an employee or was he an independent contract to Rick? It fails the employee test instantly (that was in the SCOTUS case that got tossed aside earlier)

 

 

Someone who hires an independent contractor can also own the rights to the physical art they bought if (please pay attention to the "AND"s as they are important)

 

(1) the client specifically ordered or commissioned the work;

 

Rick can answer yes to this one....

 

and

 

(2) the work was commissioned for use as one of the following:

 

* a contribution to a collective work

* a part of a motion picture or other audiovisual work

* a translation

* a supplementary work (to another author’s work, such as a foreword, chart, or table)

* a compilation

* an instructional text

* a test

* answer material for a test, or

* an atlas;

 

 

Not seeing anything on here that Rick could answer yes to....but let's just give him a YES anyway and see where this takes us.

 

and

 

(3) the contract between client and artist explicitly states that your work is a “work made for hire.”

 

 

Even if Rick could answer yes to questions one and two, he's stated nothing to indicate that these words were used, contemplated, bargained for, agreed to, or exist in anyway in the agreement he had with the artist.

 

Rick bought a piece of art, made to his specifications. Absent agreement in writing, meeting the above test, he doesn't own anything else.

 

Do you care to explain further how your analysis overcomes this?

[Mxwll Smrt]

Did you sign any kind of agreement with him? You could file for copyright rights and try to collect royalties for the sale of the prints.

 

 

Doubt it would work. Artists hold copyright to their work unless that was worked into the original deal. I've done enough of these to have dealt with all these issues more than once. All we are buying when we commission artwork is the piece of art itself.

 

So help me here... the original commission is for an original piece of artwork (proprietary), correct??

 

And then after being paid, the artist unilaterally made the decision to create a set of prints (derivative works) based on and off of the proprietary work??

 

And you're stating that the artist holds all of the rights??

 

The commissioner owns just the piece of art. The tangible thing they hold in their hands and nothing more. It's a simple property right, not rights to the intellectual property. Only explicit agreement between the parties can transfer copyright.

 

And it's not me stating it as just my opinion, it's established case law including SCOTUS chiming in on the subject. Read further down the posts you'll find the work for hire test they ran through that eliminates that possibility too.

 

I appreciate your willingness to cite SCOTUS but you are incorrect that its property rights - it’s a breach of contract - and it’s actually the breach of an expressed agreement implied by conduct - and its a “writing” that allows for the transfer of a copyright - but Rick isn’t creating prints for sale off of his piece. Rick purchased the right to a unique piece - that’s what a commission is. In fact, I'd be willing to suggest that Rick's understanding meet the 5 requirements for a state based contract and its arguable that the artist chose at a later date to violate the essence of that agreement.

 

 

 

 

 

Did you actually read that case? Did you read anything about what the courts have established on this exact issue? Citing common law contract rights when there's established court mandated standards seems the fastest way to get to the least accurate answer.

 

The amount of time I've spend in this specific area, and the amount of experience I have at this particular area of law tells me I am happy and confident that I haven't misread anything given the specific facts that Rick laid out here. I've commissioned more artwork, dealt with more artists, and specifically dealt with more issues exactly like this in the last 20 years than I can remember.

 

I am sure you are aware that basic contract law principals and "express agreement" has all of its terms laid out before execution and, usually, in some form writing. That's what makes them "express" or "explicit" terms. That there's a difference between reading the express terms between the parties and attempting to divine the terms through conduct. That includes "expressly" transferring copyright. Do you see any reference to the artist expressly transferring reproduction rights and copyright to Rick?

 

Being that the basic format commission exchanges take is for the artwork and the artwork alone. do you see any "bargained for exchange" mentioned that the artist agreed to not only give up the original artwork but also give up reproduction rights to the piece? Without expressly stating that those rights are given up, they simply aren't.

 

Do not conflate simple possessory rights with intangible property rights which carry distinct protections. Filling in the gaps of the agreement between Rick and the artist by assuming there was specific language transferring copyright isn't getting anyone closer to the truth. It's a hypothetical not supported by the narrative Rick has already provided.

 

Rick got exactly what he bargained for, the artwork. If he wanted anything more he needed to bargain for more.

 

I'll go through it one more time.

 

The test is simple:

 

1) Is the artist an employee or was he an independent contract to Rick? It fails the employee test instantly (that was in the SCOTUS case that got tossed aside earlier)

 

 

Someone who hires an independent contractor can also own the rights to the physical art they bought if (please pay attention to the "AND"s as they are important)

 

(1) the client specifically ordered or commissioned the work;

 

Rick can answer yes to this one....

 

and

 

(2) the work was commissioned for use as one of the following:

 

* a contribution to a collective work

* a part of a motion picture or other audiovisual work

* a translation

* a supplementary work (to another author’s work, such as a foreword, chart, or table)

* a compilation

* an instructional text

* a test

* answer material for a test, or

* an atlas;

 

 

Not seeing anything on here that Rick could answer yes to....but let's just give him a YES anyway and see where this takes us.

 

and

 

(3) the contract between client and artist explicitly states that your work is a “work made for hire.”

 

 

Even if Rick could answer yes to questions one and two, he's stated nothing to indicate that these words were used, contemplated, bargained for, agreed to, or exist in anyway in the agreement he had with the artist.

 

Rick bought a piece of art, made to his specifications. Absent agreement in writing, meeting the above test, he doesn't own anything else.

 

Do you care to explain further how your analysis overcomes this?

 

Wow. OK.

 

"Without expressly stating that those rights are given up, they simply aren't."

 

The proprietary rights don't reside with the artist Greg Horn - they reside with DC - and clearly no license was granted to the artist for any reproduction of their characters (apparently greg horn keeps them under his table, because dc is not overly joyed about it).

 

Additionally, my interpretation of Rick's comment was that the commission was not intended for commercial distribution (I haven’t had many commissions done, but I thought the point was to have a unique piece...not something that is out there?). Therefore, no harm done to DC.

 

But let's go back to my comment - Horns's piece of art, which was commissioned by Rick, is a derivative work - one without a license - and as such would be a different argument (and maybe I'm incorrect on my breach of contract).

 

So while you're arguing property rights, which belong entirely to DC, Rick is simply providing a cautionary tale as to make sure that when you do business that you have all your i's dotted and t's crossed.

 

Here's also another example.

 

A record company has a good relationship with an artist - and the artist wants to go and record some new material but has some liquidity problems.

 

The record company, because of its relationship with the artist, pays for the sessions and the artist records 1 song - but the song is the artist's interpretation of another artist's song.

 

The artist turns in the material to the label and the label is put in a position where they can't do anything with the material other than listen to it - and they own the master because they paid for it.

 

At the same time, the artist takes a copy of the very same original cover (recording of someone else's material) the master, and decides to sell a modified version of it out of the back of his trunk.

 

Rick didn't have to bargain for anything more than he did. The artist was not the holder of the proprietary right(s) and Rick had no intention of distributing the piece.

 

Now, as to your experience, ok, if you say so.

 

 

[comix4fun]

You're conflating trademark with copyright.

 

If you don't understand that artists who create any work (song, sculpture, writing, art) have an immediate and instant copyright interest in that image regardless of other trademark then you really don't understand, on a basic level, how intellectual property works.

 

That doesn't mean an artist can make unlimited runs of piece that featured someone else's trademarked character, but it also doesn't mean the artist's copyright to that piece is immediate and effective.

 

 

[Mxwll Smrt]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another...

 

 

[comix4fun]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another

 

 

 

Yes, and you're conflating that with the copyright that's instantly effective when an artist creates a piece of art, regardless of other rights.

[Mxwll Smrt]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another

 

Yes, and you're conflating that with the copyright that's instantly effective when an artist creates a piece of art, regardless of other rights.

 

BTW, if I make my own version of someone else's material that's all it is - my version or interpretation of someone else's material. If I choose to go out and sell it I can - but my rights in my version of the material do not provide me any additional rights above and beyond any other participating party - in this case the party that provided me the money and or the information to create my version.

 

If I'm selling something that violates someone else IP/ Trademark/ Copyright, well, the cards will fall where they fall. In this case the artist doesn't own the master - the artist has rights related to the work and in the work's creation - and they are protectable if recreated by the owner of the master for exploitation - but Rick isn't doing so.

 

Moreover, if the artist, who doesn't own the master, decides they wish to create a new opportunity solely for themselves and they choose to reproduce off of the master without the consent or notification of any other participating party, then they need to go out and recreate the work elsewhere - and then they can do whatever they want - just not make use of the master done for someone else without the acknowledgement or compensation. Rick doesn't give up any of his rights.

 

Rick owns the master. It's also like the misuse of the copyright by a writer who conveniently forgets to acknowledge the other writers, musicians, arrangers on a track when (or without) the filing of an SA or PR form.

[vodou]

Nothing said in this thread is something that any major rights holder isn't well aware of and nothing said or discussed here will enlighten them to crack down on prints. They've known for decades.

I really don't want to enter this fray, there's just so much emotion on the part of most posters (at least the way I'm reading them!), but...

 

Your statement is kinda/sorta accurate and also not. As legal entities are bought and sold, "major rights holder" changes each time there's a new parent. And not every new parent organization is used to dealing with artists doing backdoor drawings (commissions) or selling prints of same at shows. An obvious example would be if Apple bought Marvel. They are used to protecting their digital and physical IP but not in the way another print publisher would be. An even better example is of course, Disney which did buy Marvel. They have a reputation of doing whatever it takes to protect what they perceive to be their property (even if the courts don't always agree in the end). That they haven't jumped all over this (yet) is surprising to me...a newer, kinder, gentler, Disney.. (who knows!??!!)

[comix4fun]

Nothing said in this thread is something that any major rights holder isn't well aware of and nothing said or discussed here will enlighten them to crack down on prints. They've known for decades.

I really don't want to enter this fray, there's just so much emotion on the part of most posters (at least the way I'm reading them!), but...

 

Your statement is kinda/sorta accurate and also not. As legal entities are bought and sold, "major rights holder" changes each time there's a new parent. And not every new parent organization is used to dealing with artists doing backdoor drawings (commissions) or selling prints of same at shows. An obvious example would be if Apple bought Marvel. They are used to protecting their digital and physical IP but not in the way another print publisher would be. An even better example is of course, Disney which did buy Marvel. They have a reputation of doing whatever it takes to protect what they perceive to be their property (even if the courts don't always agree in the end). That they haven't jumped all over this (yet) is surprising to me...a newer, kinder, gentler, Disney.. (who knows!??!!)

 

 

Most likely that's because this is tied to Marvel publishing and they are letting publishing handle their end.

 

A while back DC began to be more strict as it pertained to these types of things but enforcement is spotty and doesn't seem to be applied uniformly.

[comix4fun]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another

 

Yes, and you're conflating that with the copyright that's instantly effective when an artist creates a piece of art, regardless of other rights.

 

BTW, if I make my own version of someone else's material that's all it is - my version or interpretation of someone else's material. If I choose to go out and sell it I can - but my rights in my version of the material do not provide me any additional rights above and beyond any other participating party - in this case the party that provided me the money and or the information to create my version.

 

If I'm selling something that violates someone else IP/ Trademark/ Copyright, well, the cards will fall where they fall. In this case the artist doesn't own the master - the artist has rights related to the work and in the work's creation - and they are protectable if recreated by the owner of the master for exploitation - but Rick isn't doing so.

 

Moreover, if the artist, who doesn't own the master, decides they wish to create a new opportunity solely for themselves and they choose to reproduce off of the master without the consent or notification of any other participating party, then they need to go out and recreate the work elsewhere - and then they can do whatever they want - just not make use of the master done for someone else without the acknowledgement or compensation. Rick doesn't give up any of his rights.

 

Rick owns the master. It's also like the misuse of the copyright by a writer who conveniently forgets to acknowledge the other writers, musicians, arrangers on a track when (or without) the filing of an SA or PR form.

 

 

Can I ask how long you've been an attorney working in the intellectual property field?

[romanheart]

I don't pretend to know every aspect of law, or what precedent favours either side of the argument but a few things seem clear to me:

 

1) The commissioned Work led to the idea and practice of the other paid work.

2) It was paid for, is an actual physical item, and the idea may not have been entirely his.

3) You think your commissioned work will be original but now it will be less so.

 

At a minimum the artist could have asked politely to recreate his idea. It would have been nice to get credit or partial payment for the idea. Maybe this increases the value of your commission, but more than likely elevates the value of the actual published original art.

 

In the end, either side could be litigated to success. If the OP is happy with the artist's publication, then no foul I suppose. If I came up with a creative Idea for a piece of work I paid for, I might be a bit miffed.

[comix4fun]

I don't pretend to know every aspect of law, or what precedent favours either side of the argument but a few things seem clear to me:

 

1) The commissioned Work led to the idea and practice of the other paid work.

2) It was paid for, is an actual physical item, and the idea may not have been entirely his.

3) You think your commissioned work will be original but now it will be less so.

 

At a minimum the artist could have asked politely to recreate his idea. It would have been nice to get credit or partial payment for the idea. Maybe this increases the value of your commission, but more than likely elevates the value of the actual published original art.

 

In the end, either side could be litigated to success. If the OP is happy with the artist's publication, then no foul I suppose. If I came up with a creative Idea for a piece of work I paid for, I might be a bit miffed.

 

 

That's a great point about courtesy in these situations.

 

Most artists I've dealt with will ask if I mind it being made into a print or a poster, but that's entirely gratuitous on their part. They don't have to do it. We both know that. They do it out of respect and courtesy but neither of us mistake it for legal obligation. I got what I asked for, paid for, bargained for.

 

In order for something like you're proposing to be "Litigated to success" there would have to be some extremely strong language in the written agreement to assign rights in some way other than established by case law. That's because this isn't a case where both sides start from zero and whichever one proves their case best wins. This is a case where case law sets the standard to give the rights to the artist absent agreement to the contrary, so anyone thinking of litigating would first have to overcome that standard first before they even reached the point where they can begin to press their claim.

 

I just have to ask, sincerely, as to #3 above, how so?

 

He made prints (fancy name for poster) out of them that I assume (given the other prints the guys sells) that are in color.

 

How does there being a color poster of a piece of art make the original line art less original?

 

When I buy the original cover art or page to a comic there are tens of thousands of copies out there in the comic where it was published, but there's still just one original.

 

Maybe I've been at it too long in this hobby but I've never thought that seeing a print of a piece makes me think my original art diminished.

 

If a guys commissioning a piece wants more than just the piece of art. If he wants rights to refuse future publication or rights publish himself or any rights at all, then he's got to negotiate those rights at the outset, explicitly, or he's waiving.

[Mxwll Smrt]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another

 

Yes, and you're conflating that with the copyright that's instantly effective when an artist creates a piece of art, regardless of other rights.

 

BTW, if I make my own version of someone else's material that's all it is - my version or interpretation of someone else's material. If I choose to go out and sell it I can - but my rights in my version of the material do not provide me any additional rights above and beyond any other participating party - in this case the party that provided me the money and or the information to create my version.

 

If I'm selling something that violates someone else IP/ Trademark/ Copyright, well, the cards will fall where they fall. In this case the artist doesn't own the master - the artist has rights related to the work and in the work's creation - and they are protectable if recreated by the owner of the master for exploitation - but Rick isn't doing so.

 

Moreover, if the artist, who doesn't own the master, decides they wish to create a new opportunity solely for themselves and they choose to reproduce off of the master without the consent or notification of any other participating party, then they need to go out and recreate the work elsewhere - and then they can do whatever they want - just not make use of the master done for someone else without the acknowledgement or compensation. Rick doesn't give up any of his rights.

 

Rick owns the master. It's also like the misuse of the copyright by a writer who conveniently forgets to acknowledge the other writers, musicians, arrangers on a track when (or without) the filing of an SA or PR form.

 

 

Can I ask how long you've been an attorney working in the intellectual property field?

 

Not an IP attorney - I reread SCOTUS and was wrong. I'm glad I slept at a Holiday Inn.

[Mighty Hal]

When I buy the original cover art or page to a comic there are tens of thousands of copies out there in the comic where it was published, but there's still just one original.

 

Maybe I've been at it too long in this hobby but I've never thought that seeing a print of a piece makes me think my original art diminished.

 

I agree. I'm pleased when a piece I own shows up in other forms (on a TPB, as a print, as a statute); I feel this increases the value of the original. It certainly does in my view, anyway.

[comix4fun]

....any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another

 

Yes, and you're conflating that with the copyright that's instantly effective when an artist creates a piece of art, regardless of other rights.

 

BTW, if I make my own version of someone else's material that's all it is - my version or interpretation of someone else's material. If I choose to go out and sell it I can - but my rights in my version of the material do not provide me any additional rights above and beyond any other participating party - in this case the party that provided me the money and or the information to create my version.

 

If I'm selling something that violates someone else IP/ Trademark/ Copyright, well, the cards will fall where they fall. In this case the artist doesn't own the master - the artist has rights related to the work and in the work's creation - and they are protectable if recreated by the owner of the master for exploitation - but Rick isn't doing so.

 

Moreover, if the artist, who doesn't own the master, decides they wish to create a new opportunity solely for themselves and they choose to reproduce off of the master without the consent or notification of any other participating party, then they need to go out and recreate the work elsewhere - and then they can do whatever they want - just not make use of the master done for someone else without the acknowledgement or compensation. Rick doesn't give up any of his rights.

 

Rick owns the master. It's also like the misuse of the copyright by a writer who conveniently forgets to acknowledge the other writers, musicians, arrangers on a track when (or without) the filing of an SA or PR form.

 

 

Can I ask how long you've been an attorney working in the intellectual property field?

 

Not an IP attorney - I reread SCOTUS and was wrong. I'm glad I slept at a Holiday Inn.

 

 

No worries.

 

At least it was free. I have several very intelligent and well educated clients (which from the way you post it sounds like you are as well) that insist on googling what they think should be done on their case before coming to me. It takes a few hours, with the clock running, to get them back to where we should have started from in the first place.

 

It costs them. You got to the same place, gratis.

[Abizoath-migration]

I am willing to bet that if it ever came to the point where an artist could not make a print of the work they did as a commission for fear of someone trying to edge in on the action, you can bet they will build that potential loss right into the cost of your commission whether he makes a print or not, or simply will never do commissions again.

[comix4fun]

Thinking on this topic, the one entity that was most active in control of their images was Lucasfilm. None of the artists I know created prints of anything Lucas based without license or permission (The Star Wars Celebration Prints were licensed but tightly controlled).

 

Disney's always been very strong on their controls as well , not much different than Lucasfilm in terms of diligence ,which was never really an issue until they bought Marvel....not many con prints were featuring original Disney properties compared to superhero based items.

 

I wouldn't be shocked at some sort of floating standard coming out, the people that work for Marvel (their artists) continuing to get a pass, much in the way DC handles the situation, but the freelancers that never worked for the company getting shut down. There are a lot of pluses to continue to have their talent forward their brands in a positive way that does not impact their bottom line negatively (con print sales not paying them a license fee compared to brand strengthening through allowing con print sales to their artists is probably a wash)

 

Anything is possible going forward with the brand consolidation this hobby has seen in recent years.

 

But again nothing in this thread or in this discussion will make them move to do something or think of something they haven't already been moving toward or thinking of for quite sometime.