Unpaid commissioned artwork - Is it ethical for me to use as I please?

Nivlacart

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Hey guys,

I really don’t want to air dirty laundry, but I needed to get an opinion on this as fellow developers and creators.

I finished a huge commission about half a year ago. However, the customer seems to have completely gone off the radar. It’s been a year. Uncontactable in every channel. As far as I know, it seems I’ve been ghosted.

At the time, my policy with commissions is half of the payment first, and half of the payment when it’s done.
However, I certainly didn’t expect this to happen. A learning lesson which has prompted me to change when I should receive the second half of the payment.
As well as not to keep working on a commission if the client stops replying.

But now I have a huge number of unpaid-for commissioned artwork (we’re talking numerous character busts, 6 expressions each) that I don’t know what to do with. I’m in urgent need of money to pay fees and bills, and I wanted to ask:

Is it okay for me to use these assets as I please?

Is it ethical for me to, say, sell it as an asset pack for example? The art assets are the commissioned characters, yeah, but they could easily pass as quirky NPCs too.

I’m a bit hesitant because the character ideas do belong to the client, but also, I wasn’t paid for these artworks I spent a good half a year working on. A lot of time and effort wasted on assets I painstakingly drew and are now sitting unusable in my hard drive. School fees and life expenses are piling up regardless. It’s really frustrating.

What do you guys think?
 

pickledylans

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its pretty unfortunate, but id probably say no. Those characters still belong to someone else right?
also, i dont know the exact circumstances, but theres a chance the person stopped replying because something happened to them, and not out of any malicious intent right?

i get it must be frustrating to get screwed out of so much money, but i really wouldnt do it imo....
 

Finnuval

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Well, the problem i see immediately is that you did receive partial payment for it. Had you not been payed at all and put in enough effort to contact said customer I would say you could sell them off as they belong to you even if they were initially intended for someone else as they broke the rules of contract. Yes they are someone else's idea but your interpretation of them making them yours as much as theirs.

HOWEVER since you did receive partial payment that changes the situation I think. Of course best thing to do is ask someone with more knowledge on the subject and possible legal ramifications and rules in this case.

@MushroomCake28 also wondering what you have to say about this specific subject?

theres a chance the person stopped replying because something happened to them, and not out of any malicious intent
and there is this too to consider.

So in this specific situation I would advice against it... at least for now.

As well as not to keep working on a commission if the client stops replying.
a good (but sadly expensive) lesson indeed
 

Andar

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From a legal side, it depends on what the commission was as well as the exact terms of the agreement.

The problem is that most commissions are a shared copyright - the descriptions of the commissioner and the artwork of the artist.

If you were only given a general description "a male fighter" and have made everything else up yourself, then you could probably re-use them under the condition that you're willing to give the original commissioner different artworks should he ever re-surface and contact you.
And if you already received part of the payment, then you should reserve part of the artwork without re-using it.

If you were given detailed descriptions and references, then no - you cannot use them anywhere else without permission of the original commissioner. Because that person still holds half the copyright to the work. Using them will risk anyone a C&D and other problems, so it would be especially bad if you were to sell them to multiple people (who would all have that risk of getting a C&D from the original commissioner, and that would destroy your reputation as well.

The only exception to this is if you included in your original terms rules for what happens if one or the other side defaults on work or payment.

As far as I know, it seems I’ve been ghosted.
A learning lesson which has prompted me to change when I should receive the second half of the payment.
There is a lot of things that could have happened - and it is not always the commissioner that is at fold, so going to full payment up front also has disadvantages.
There was a case where an artist took my money and then vanished on me - which is the reason why I never will give full upfront payment unless I know the artist and the sum is minimal.
And on the other side it happened to me that I messed up two commissions because I dropped off for health reasons for months (or a year in one case). Luckily one case was before work started (hadn't even send descriptions) and in the other case the half payment was approximately that what was calculated for the sketches I had received and the main work had not yet started, so there was no problem with the artist after I managed to re-contact him.

But don't take the vanishing of the commissioner as intentional - most often it's just that too much went wrong in real life for them.
 

Finnuval

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If there is no contract. You fully own 100% those assets.
but in this case half of the payment has been made which implies there is a contract (the way I understand court proceedings anyway. correct me if Im wrong).
It depends for a large part wether or not the initial contract has a 'grant of right' clause in it or not, is my understanding. If the contract states there is no grant of right until payment is made in full then you, the artist, owns the asset and copyright to it as far as I am aware. However most artist forget to include this in their contracts until something like this happens sadly.
 

The Stranger

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I'm guessing that you don't need to hand them over to the customer, but perhaps shouldn't resell or reuse them either. It's unfortunate, but sometimes stuff like this happens.
 

Kauzz

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IMO, no. You can make something based on this commission, or maybe take for your own use, on a project or portfolio, idk. But sell as an asset pack isn't cool, since the person paid an half, at least for me.
 

woop

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As an artist myself, I deal with commissions quite often and have payment set up like you did, with half up front and half upon completion. It really depends on the wording of your contract between you and the client. Does your contract address the possible issue of an extended period of no communication with the client?

Also, it seems like you've completed the work and the payment hasn't been paid in full. Typically, a contract will address the terms of payment and copyright, and as long as you haven't gotten paid in full, you still own the rights to the work.
 
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Restart

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https://www.plagiarismtoday.com/2019/09/05/copyright-and-commissioned-art/

Unless you agreed to sell the copyright to the work (or agreed to license it exclusively), you totally own the copyright and can do whatever you want with it.

It is extremely common for painters to sell reproductions of paintings where the original was commissoned for another purpose (such as a movie poster), and it's one of their biggest sources of income https://mariabrophy.com/business-of-art/okay-sell-reproductions-painting-commissioned-collector.html

Another example is Brandon Sanderson commissioning this excellent piece for the cover of Warbreaker

QINYwwS.jpg


The artist then (legally) licensed Heather Dale to use the art as well, so she could put it on the cover of Avalon

p1z82p8l8jiz.jpg


(This is totally standard operating procedure, and in fact Brandon bought the original physical painting because he liked it so much)

Ethically speaking, you don't have any obligation to someone who screwed you out a full payment.

In the future, though, having an actual contract to specify the details (and including a clause that the half payment upfront is nonrefundable if they ghost you for, say, three months) will definitely make things a lot smoother.
 
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MushroomCake28

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@Archeia The commission itself is a contract, even if the terms are unclear and/or verbal (well at least in most Western countries, not sure about Singapour or the jurisdiction of the one who commissioned the art).

I'm not here to discuss the ethics of if it's right or wrong, I'm just here to talk about the legal side as a law student. First of all it is as @Andar said, it all depends on the terms of your agreement. If the contract is only fully executed at the end of the payment, then the rights to the material still belongs to you until you receive the final payment. Now, if that wasn't specified, then it's really hard to say: it could be a 50%/50% equity in the rights to the material, but it could also be yours (you can't buy something by only paying half the price in most cases).

Also how long as it been since you contacted the person who commissioned you? There's something called legal prescription, which means that a right can be extinct due to non-execution during a period of time. In other words, the contracts can be null after a period of time if the person doesn't pay you (or makes it clear that he/she has the intention of paying you). The time period for that depends on the jurisdiction: it would be 3 years where I'm from, 5 years in the US (I think for contracts), etc. Now the tricky part is actually determining your jurisdiction: is it Singapore? The jurisdiction of the person that commissioned you? Or the jurisdiction of this forum (US I think?)? No way to know unless you have specified it in the contract, or you/he/she sues the other person.

So to conclude, we can probably assume that you still holds the rights to the material. Even if it's just a 50/50 equity, you still hold partial ownership, which means you can use the material in your projects. I wouldn't go as far as resell it to someone else though. If after a period of time (2-3 years) he/she hasn't responded or claimed the assets, then it would be for sure 100% yours.

SOURCE: I'm a Law Student.
 

Restart

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Having checked the thread, here are the terms listed
== TERMS OF USE of my art ==
- Once you've purchased an art from me, you may use it unlimitedly, both commercially and uncommercially. As many games as you want, promotional art, trailers; it is yours to use from now on; However,
- Do not claim credit for drawing the art.
- Please credit me in any production of yours that the artwork is used in. Even if it's a small name under Artists or Credits, I would like it very much.
Which grants wide-ranging permissions, but doesn't include any mention of exclusivity to those permissions, or to any transfer of the copyright.

For commissions, Singapore defaults copyright to the artist, unless you were specifically doing a photo, portrait, or engraving (I think it's pretty obvious these game commissions don't count as a portrait in terms of what the law is referring to, since it's specifically 'painting or drawing of a portrait', but to be absolutely certain on that you probably need someone with specific Singapore legal experience)

http://www.mondaq.com/x/709822/Trad...Commissioned+Works+In+The+Field+Of+Trademarks

This is either a fantastic time or an awful time to be digging into Singapore copyright, considering that they're going to be totally restructuring their copyright law pretty soon.

EDIT: excerpt from the Singapore chapter of Wolk's 2016 Employees’ Intellectual Property Rights if anyone wants to dig a little deeper
 
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MushroomCake28

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@Restart Well with those terms, we can safely say that he still owns the rights to the asset. "Once you've purchased an art from me" implies that he owns the rights to the material until the commissione pays him, which he/she has not. Partial payment is not equal payment, and any payment/equity deal (meaning the more you pay you slowly gain equity, like with a house) is something that must be explicit in the contract (well in Canada at least, and pretty sure in the US too).
 

Finnuval

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@Restart @MushroomCake28 I have to agree "once purchased" implies full payment not partial, "it is yours to use" can be considered as a Grant of rights.

So in light of this the assets are yours and yours alone as stipulated by the terms of contract and you can do with them what you want.
 

Restart

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Also, for sake of politeness, it might be a good idea to recolor the characters before putting them in the asset pack.
 

MushroomCake28

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Yeah, legal is one thing, but courtesy and ethics is another. So recolor them, modify them if you want to be nice, but not a legal obligation probably.
 

Nivlacart

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Thank you so much, everyone, for replying to this thread.
Most of all, I really do want to, as much as possible, be able to contact the client and finish the commission,
but real-life obligations truly are making me desperate enough to consider reselling them, even though it's something I wouldn't normally consider. Naturally, I would recolor them first, but still...

Especially large thanks to the law students and with the clarification on rights.
It's comforting to know, but more than the fear of a C&D, I certainly disliked the idea of distributing someone else's characters and ideas more.

While I usually take it as 'the first half of the payment would pay for the sketches, and the last payment pays for the complete asset', I never did explicitly state that in any of my T&Cs, so it truly is on me for being so vague. I wouldn't be stuck in such a grey situation otherwise.

For now, I'll PM Ms. Littlefish about the details. If I'm lucky, perhaps there really is an avenue of contact that I've yet to try, and one they just might answer.
 

Sunjean

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From what I read into it:

The one that hired you has already breached whatever contract you 2 had. 1 year has gone and you have tried numerous times to contact him. You have told him you're done with your side of the deal (and waiting for the rest of the payment for your work) - he hasn't done anything to keep his end of the bargain.

If the timeframe was just a month, I would say wait it out in case RL has gotten in the way. But after 1 year?

We all know project gets dumped all the time, so maybe he just avoids responding since he won't need the art anymore.
 

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