Commissions, Prints and the Like

I'm a professional. I respect my client's rights. Because I have to.

Hi, thank you! What a great question.

When someone buys a piece of original art, they are buying physical ownership, not copyright. The right of physical ownership does not mean I cannot use the art in publications, make prints of it and sell it, or anything else, unless there is a written agreement between me and the buyer conveying reproduction rights to them.

Since I don't own the rights to SANDMAN in the first place, I could not convey publication rights of this piece to a third party anyway.

Copyright means The Right To Copy. And it doesn't just mean one thing. There are as many copyrights as there are means to make copies. There are book publishing rights, book publishing rights by nationality, rights to print on clothing, fine art prints, electronic rights, film, etc. Each of these rights are separate copyrights and are negotiated individually.

Now for commissions based on the intellectual property of a company like Marvel and DC, some artists ( like me ) may have licensing agreements with the publishers to do art or make prints. For example, I have a limited license with DC Comics to make a small number of prints per year. But you never see me making Marvel Comics prints, because I don't have a license with them. And I am only allowed to sell prints under special circumstances. I can't open a shop and post them on my website.

Many artists do this without permission, but I don't like to push my luck. I've never done a print of IP I do not own or to which I do not possess a legal license.

While DC has no objection to me doing this commission or making a print, I can only make so many prints. And if I wanted to publish the art in a book, I would have to get separate permission for that.

I do Marvel-based commissions because I have a letter on file with Marvel telling me I can. Again, if I wanted to publish a collection of my art incorporating Marvel characters, I would need to negotiate a license.

A commission of another company's IP is (likely) a derivative work, and while most publishers don't care if you make prints or do commissions, some care a lot. While they (usually) won't go after a fan artist, they will bring the hammer down on a pro artist, and I've seen them do it. I mean, right there at a show, forcing one of the top artists in the industry to remove prints and “sketchbooks” from sale at their display at a major show.

I've had two publishers specifically forbid the creation of prints - as well as commissions - in their contracts, but I see tons of artists making prints and commissions of their IP.

So whatever.

Anyway, if a fan buys a piece of original art like this, they get the original art - not reproduction rights. And even if I sold reproduction rights, I would reserve the right to use the art for publicity and portfolio purposes, which would generally be considered fair use anyway.

A few times, clients have forbidden such use in contracts. I think that's outrageous and I don't work for these people anymore.

As a pro, I have to worry about these things because I have to respect my clients. As a fan, it's probably not a big deal because major publishers don't like to go after fans.

They will do it, but usually only if you really step over the line.

But no one gets reproduction rights when they buy a commission from me.

If you are a fan and you gleefully post the art you just bought, happy to show off your commission, I can’t think of any publisher that would come after you. I’m sure we’re all pleased you’re pleased.

There is no law that compels a copyright holder to enforce copyright. If a copyright breach is minor and does no harm, then there is no profit in pursuing the issue.

If you were making and selling t-shirts of original art you bought or made using IP you do not own, that would be another matter.

People note unauthorized use of IP all the time and assume that if someone is not getting sued then the use of the work must be legal. But that’s not what it means at all.

Either the copyright holder does not know about the use, or they feel the breach is not worth pursuing. Imagine the labor cost of, say, shutting down thousands of fan accounts on Etsy selling Star Wars products.

A company is going to have to pick and choose its battles, and it doesn’t want to antagonize the fan base.

In the meantime, if you have a sketch you bought at a show and want to share it with others by posting it on social media, no harm no foul. But if you decided to sell reproductions of that in some form, that’s another matter.

If you see a pro selling reproductions of that art, either that pro has a license, or they are hoping they won’t get caught moving posters at a convention or self publishing a book of sketches.

I like to sleep at night, so I never violate my client’s IP rights.

That doesn’t make me a snob, that doesn’t mean I’m dissing fan art. It means I have obligations to clients, and no matter what, my clients have to be able to trust me to respect their IP.