On purchasing and reselling character designs for person use online

[xip]

edit: title was supposed to say 'for personal use online'

/end edit

Hi guys! I wasn't sure if this should be under consumer law or copyright law, but I think it's more of a copyright and IP issue.

The buying and selling of character designs, usually for roleplay or drawing practice, is very common in teen and young adult art communities. Many of these characters sell for hundreds of dollars, and don't come with any contract or terms of service. Recently, a few issues in these communities (which are very large, possibly consisting of hundreds of thousands of users) have arose and no one really knows how to moderate them.

About character design sales and the current issue in the art community:

- The images sold are often the same lineart recoloured, each recolour sold to multiple buyers at a very high price.
- The recolours are sold to users as an exclusive recolour, usually users are not made aware of a terms of service.
- The designers have encouraged drawing, selling and trading of the designs in the past, setting up groups to enable this.
- In some cases, minors are selling the designs, and in many cases, minors are buying the designs.
- The transactions very rarely include a contract or ToS, or include a vague or simple one.
- Commissioning other artists to draw the design was also usually encouraged by the designers.
- Many of the designers earn $5000 - $10,000 a month for minimal amounts of work, which has been made possible by establishing a strong community and with great marketing and product promotion.
- Many of these designers have formed a kind of union, and recently all added a ToS or changed ToS terms to state that they no longer allow the trading and/or selling of the sold designs.
- Users who paid significant amounts for the designs in the past now feel ripped off, as they can no longer resell a product or service they were under the impression they had permission resell. (Very few are looking to make a profit, but rather make their money back or trade in for something they liked more, as per past agreements with the designers, sometimes stated explicitly and other times implied).

The issues are:

- Do the users have any rights to argue?
- Is the selling of designs by the designers a product or a service?
- Many users are comparing their right to resell the design to their right to resell a physical painting. That they don't own the copyright, but they can sell the individual product they purchased but not the copyright. Is this fair?
- Users have also purchased commissioned work of the character, with permission of the original designer. They have permission from the artists to resell the commissioned work of the character, but the original designers are saying this is no longer acceptable and that if a character is resold, it must not be resold with commissioned art.


It's a mess. Some people - often minors - have invested hundreds of dollars and now feel out of pocket and deceived. This has lead to bullying, harassment, public naming and shaming and defamation, by both users and designers. No one knows their legal rights. Some people believe the designers are being unethical and deceptive, editing ToS and blacklisting, harassing or publicly shaming users who act without realizing a change was made, or for disagreeing with a change to a contract they didn't consent to. Others believe the users are being irrational and selfish for wanting to resell a design and additional artwork that was purchased for fun. Others think both sides are ruining the community.

Normally this wouldn't be an issue worth seeking legal advice over, but this argument has been happening for the past month, with tens of thousands of users involved in the discussion. I have friends on both sides who feel as though the other side is acting illegally. So far, there aren't any answers and the debate on who is lawfully right, which in particular is happening on deviantart, is full on misinformation that is being shared rapidly and irresponsibly.


------------ definitions -----------

designers: users drawing, advertising and selling character deisgns or recolours of their own character design
users: users buying designs or recolours of designs from designers for personal use

 

[justalayman]

If these minors don't worry about making a profit they use the easiest way out; rescind the sale due to the disability of being a minor and the inability to be held to contracts not involving life necessities. If a few hundreds of the kids start demanding to rescind the sales the artists may rethink their new ideas.

If these are the designers own character designs I would presume typically there is no trademark issue. If the subject does involve trademark issues it can change things.

As to a service or product; the selling of s physical product is just that: a product. If a person hires the designer to perform a service for them, then there would be a service involved. From your explanation it sounds like you are dealing only with products.

While there can be a contract that limits a person's rights after the sale, if the contract was not in place at the time of the sale a new contract cannot be retroactively applied and enforced. That would mean the seller has only the control specified within the contract at the time of the sale

 

[quincy]

edit: title was supposed to say 'for personal use online'

... The buying and selling of character designs, usually for roleplay or drawing practice, is very common in teen and young adult art communities. Many of these characters sell for hundreds of dollars, and don't come with any contract or terms of service. ...

- The images sold are often the same lineart recoloured, each recolour sold to multiple buyers at a very high price.
- The recolours are sold to users as an exclusive recolour, usually users are not made aware of a terms of service.
- The designers have encouraged drawing, selling and trading of the designs in the past, setting up groups to enable this.
- In some cases, minors are selling the designs, and in many cases, minors are buying the designs.
- The transactions very rarely include a contract or ToS, or include a vague or simple one.
- Commissioning other artists to draw the design was also usually encouraged by the designers.
- Many of the designers earn $5000 - $10,000 a month for minimal amounts of work, which has been made possible by establishing a strong community and with great marketing and product promotion.
- Many of these designers have formed a kind of union, and recently all added a ToS or changed ToS terms to state that they no longer allow the trading and/or selling of the sold designs.
- Users who paid significant amounts for the designs in the past now feel ripped off, as they can no longer resell a product or service they were under the impression they had permission resell. (Very few are looking to make a profit, but rather make their money back or trade in for something they liked more, as per past agreements with the designers, sometimes stated explicitly and other times implied).

The issues are:

- Do the users have any rights to argue?
- Is the selling of designs by the designers a product or a service?
- Many users are comparing their right to resell the design to their right to resell a physical painting. That they don't own the copyright, but they can sell the individual product they purchased but not the copyright. Is this fair?
- Users have also purchased commissioned work of the character, with permission of the original designer. They have permission from the artists to resell the commissioned work of the character, but the original designers are saying this is no longer acceptable and that if a character is resold, it must not be resold with commissioned art. ...

------------ definitions -----------

designers: users drawing, advertising and selling character deisgns or recolours of their own character design
users: users buying designs or recolours of designs from designers for personal use

What is the name of your state, xip, or if not in the US, what is the name of your country?

Copyrights in original and creative works belong to the creators of the works, absent a written and signed agreement to the contrary (with a few notable exceptions). A purchaser of a creative and original work, in other words, does not become the owner of the copyrights in the work. These copyrights remain with the individual who created the work.

The rights of a copyright holder include the right to reproduce the work for sale to others. The user is not permitted to copy the work they purchase unless this is expressly allowed by the copyright holder. Trading the purchased work itself, or selling the purchased work to someone else, is legal under what is called "the first sale doctrine."

The "users" of the designs they purchase should not feel "ripped off" if what they purchase does not include an agreement that transfers rights to the works (through a license or an assignment) from the copyright holder/designer to them.

I suggest that those who are upset with they expensive purchases make sure in the future that these expensive purchases include a written and signed agreement outlining what rights are being given to the user/purchaser with the sale. Having the designers consult with an IP attorney in their area (wherever that area happens to be) would probably be smart.