[ SECRET POST #5693 ]

[case]

⌈ Secret Post #5693 ⌋

Warning: Some secrets are NOT worksafe and may contain SPOILERS.


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Notes:

Secrets Left to Post: 00 pages, 00 secrets from Secret Submission Post #815.
Secrets Not Posted: [ 0 - broken links ], [ 0 - not!secrets ], [ 0 - not!fandom ], [ 0 - too big ], [ 0 - repeat ].
Current Secret Submissions Post: here.
Suggestions, comments, and concerns should go here.

Comments

[(Anonymous)]

Commissions are not legal. Paying someone to create something based on a copyrighted or trademarked franchise is not legal. It is not "fair" to ask them to pay you, it is literally illegal. If it's not something you would otherwise write/draw, JUST DON'T WRITE/DRAW IT.

[(Anonymous)]

So the argument here is legal and not moral? To be clear?

[(Anonymous)]

DA.

As far as I can see, there are two arguments, the legal and the moral. The moral issue is very much a source of contention, and could make for an interesting debate... if the legal one didn't ultimately make the morality question moot anyway.

[(Anonymous)]

If it's a purely legal argument, I don't agree that the legal argument does actually make the moral argument moot at all.

But I want to understand what the position actually is, because people seem to be making several different arguments - "fandom is a labor of love and if money is involved it's no longer a labor of love", "accepting money for fanwork is illegal and therefore bad", and "accepting money for fanwork is illegal and threatening and dangerous for fandom as a whole." I don't necessarily agree with any of those arguments but there seems to be a lot of bouncing around between them.

[(Anonymous)]

... abortions are illegal and that doesn't keep us from discussing it. As it shouldn't

[(Anonymous)]

Not a good comparison, because abortion is definitely legal where I from, yet charging for illegal copyrighted content isn't...

I also don't like how you equate a potential life-threatening situation with someone's desire to get paid for their drawn pixel porn. But hey.

[(Anonymous)]

Commissions are legal, they fall under fair use. You're creating a single derivative work for the private enjoyment of the person who paid for it. What wouldn't be legal would then be selling multiple copies of the commissioned work.

[(Anonymous)]

Source for how a paid commission falls under Fair Use?

[(Anonymous)]

Fair Use is determined by a number of factors, but it basically boils down to "will the existence of this derivative work harm the original work?" Lawyers would be very hard-pressed to make a case that a single commission done for an individual recipient has any effect on the work that it's based on, especially when the burden is on the owner of the copyright of the original work to demonstrate that the derivative work will harm their ability to market their own original work.

da

[(Anonymous)]

I don't have a direct one to one legal ruling on commissions but you can google the lawsuit involving Springs (a fabric milliner that produces licensed cotton prints) wherein it was ruled that printing "for personal use only, you can't sell a product made from this fabric" did not constitute a legal contract and was basically ruled, legally, bullshit. People are now legally allowed to buy licensed fabric and the licensee has to just let them make and sell products out of that fabric because the only legal agreement, in terms of trademark licensing, is between the original content owner and the milliner who mills their fabric. They can't sue Grandma for making potholders out of Disney fabric and selling them at a craft fair, now.

Earlier than that was a lawsuit between Lucasfilm and a guy selling stormtrooper armor that was cast off a screen-used piece, but that was not over the selling of the armor, it was the use of the trademarked names and also bragging about the screen-used armor. If he'd just kept his egotistic trap shut about the screen-used part, he would have gotten away with it.

Oh also google the lawsuits brought by designers against copycat couture/dress makers that went nowhere because it was ruled that publishing a design doesn't necessarily protect the design from being made into clothing. That is, there's a lot Chinese bootlegs are getting away with that might not fly elsewhere. There is more legal action over Chinese bootleggers stealing couture designs than over cosplay but one of these days Japan is gonna get big mad and there'll be a literal war.

Basically, commission practice is a fraught gray zone which really hasn't been clearly defined, legally, and most commissioners of any product (physical, digital, or otherwise) have always operated on a stance of not openly using trademarked names where any paralegal with google-fu can easily find it. Or, claiming fair use when posting pictures on the internet but then shhhhh quietly selling prints/copies/etc under the table at live events. Most lawsuits laying out the boundaries so far have only been about completed products being sold and under what names it was sold, not about asking for a personal, custom job that just happens to look a lot like someone else's trademarked character.

Re: da

[(Anonymous)]

Most lawsuits laying out the boundaries so far have only been about completed products being sold and under what names it was sold, not about asking for a personal, custom job that just happens to look a lot like someone else's trademarked character.

Exactly. There's a world of difference between slapping some fanart of Darth Vader on a t-shirt or mug and putting it up for sale to the general public and advertising it as a Darth Vader t-shirt/mug and having someone pay you to draw them a picture of Darth Vader on a surfboard that is only going to be seen by them.

[(Anonymous)]

The creators of the original canon of a lot of my fandoms literally retweet fanart by people who sell their work.