?

Log in

No account? Create an account
entries friends calendar profile Previous Previous Next Next
Chiming in on the art commission issue - The Phantom Librarian
Spewing out too many words since November 2003
fernwithy
fernwithy
Chiming in on the art commission issue
Well, it's being talked about in several places--fan artists getting commissions for fan art. Since I commissioned art recently from leelastarsky and have a great love of fan art, and a history of trying to mix art and fic... I thought I might say something.

On the legal issue, I've never been sure--online or at cons--how people can make money off of painting characters that are copyrighted to someone else without running afoul of copyright laws. The first time I saw an art auction at a con, I was flabbergasted. It's a different medium, yes, but as far as I know, all derivative art forms--whether film or stage adaptations, sequels, or illustrations--are the property of the copyright holder or someone he or she designates (or, more likely, sells those rights to). Fanfic is on shaky ground not because it can be mistaken for the original, but because it's a derivative work that could be licensed, and on which the original owner could make a profit. The tie-in novel money goes to the copyright holder. (As the author of a tie-in novel, I promise, not much goes to the author.)

The same thing would be true of posters, promotional art... I don't know, jigsaw puzzles. Anything that you use art for, they can make money from. In a book fandom like HP, where there are no derivative books, in fact I'd think they'd be more vigilant about fan art than fan fiction, since fan fiction isn't "competing" with any other derivative products they put out, while fan art is. (This, btw, is probably why they sent a cease-and-desist about the Gryffindor scarf knitting pattern--that's a licensed object and they want people to buy it, not make it.) Derivative works aren't in competition with the original, but with one another.

So it makes me a little nervous to see artists charging commissions, because man, I can see them coming down at any time.

However, they haven't done so up until now, and at least in HP fandom, there's no mystery about the fan art community--JKR herself recced a fan artist (though I don't know if Laura Freeman charges commissions on her site). So probably nothing will come of it. My guess is that writers love illustrations and are greedy for them, and aren't in the least bit interested in having fewer of them made.

So legally, I find it all questionable.

Morally, I find myself torn, because frankly, I think copyright law has gotten way out of hand. People have always responded to stories by making up stories and drawing pictures. Now, after a few millennia of human habit, it's illegal?

And art supplies cost a pretty penny. Yes, it can be argued that the computers we write on also cost a lot, but chances are, we'd own them anyway, and most of them come bundled with the only software a writer needs--some kind of basic word processing program, even one as simple as Notepad. Distribution is free, for the most part--unless you choose to host a site, but that's not necessary for the writing part. I host HB because I wanted someplace to stash work all together, and VM because I had a particular interest in a character. They're not necessary. My paid LJ account isn't necessary; I just like the look of it. If I find an archive I like, I tend to just submit to it, and for ages, all of my stuff was on "outside" archives to which I didn't donate a red cent. Using the computer to write a fic doesn't mean you don't have the computer to write another one. Using all of your blue oil paint means going out and buying a new tube.

I'd point out that fanfic hasn't always been free to readers. Zines can be kind of pricey, actually, even though they only make back costs for the publishers. I did a very short one (70 pages, as I recall) that the publisher charged eight bucks a pop for--copying, sturdy card cover, etc. Because they aren't produced in bulk, they cost more to produce than paperback books of comparable length. Then, there's generally a shipping charge. Before the internet--which, I admit, was mostly before my time--fanfic was not a pursuit for those with thin wallets. The prices covered costs.

Now, I don't know whether or not leelastarsky's commission prices are the average, because I didn't shop around, but a colleague of mine who is interested in becoming an illustrator looked at the site and declared the prices to be exceptionally reasonable--cheap, in fact--for work of that quality. (For the record, I showed her a couple of fan artists in HP, and she was absolutely floored by the talent. Though of course, I had to be careful where I surfed her to at work!) So we're not talking about the kinds of commissions that people would get for doing pro illustrations.

Still, despite my support of artists and misgivings about the overbearing extent of copyright laws, it also doesn't seem right to make a profit from someone else's world without that person getting a cut. The copyright laws are draconian, but based on the very sound idea that there is such a thing as intellectual property. Playing on that property is one thing; making a profit from it is something else.

My suggestion is to tweak the subsidiary rights clause in the contracts, make it possible to have a second tier of subsidiary rights, for which people pay a nominal fee--not more than US$100--or even just apply to the original writer for a license, at which point they can be official illustrators, official fic writers, whatever, and any profit they make would have a cut (5%?) sent to the copyright holder. I think that would be fair and would solve all the problems (except, of course, for things that the original owner wouldn't approve of).

The real reason it makes me sad, though, is that we'd been building bridges between the art and writing communities. At TFN, we wanted every story to have some kind of cover art. Yes, it's true that a great many of these are photomanips, but we also had some marvelous traditional artists working in the artist pool. For example (edited so I'm using my own bandwidth instead of TFN's, all four referenced covers can be found here), Julie the Tall Terror did the central figure on the cover of By the Grace of Lady Vader while Kidd did the central figure on The Ascension of the Queen (in both cases, more computer generated images were added around them), the fantabulous Sean Cooke did a painting that I used as the cover of Father's Heart, and Chris Madden made a comic book like cover for Autopilot. I have an Illustrator's Gallery at Vader's Mask full of pictures people simply drew for the stories archived there, either at my request--"Can I see what a half-finished breath mask would look like?"--or just entered spontaneously. One artist helped me shape a fic by designing disfiguring tattoos.

I was always as respectful as I knew how to be in talking to artists--to reiterate a frequent point I make here, I worship artists and go to them as a supplicant--but the relationship was, I think, not one sided. Artists seemed to appreciate fanfic for having a wealth of new images to work with, things that hadn't already been drawn a hundred times, things they could visually define for the first time. And as a writer, I loved to know what people who read visually saw--the Father's Heart painting turned out to not be one that Sean and I had talked about, but one he painted because he said that he was overcome by an image of young Leia smiling in the presence of Darth Vader (as she does in part one, "Behind the Mask").

That kind of symbiosis doesn't seem to be happening anymore, and the distance between art and fic, which had been closing, is now getting wider. It makes me sad in that way.
30 comments or Leave a comment
Comments
(Deleted comment)
fernwithy From: fernwithy Date: December 9th, 2004 09:59 pm (UTC) (Link)
Am sick and sooo jacked up on cold meds right now. ;_;

I sooo get that today. My brain was fried until it finally wore off. Of course, now, I'm sniffing and sneezing again.
(Deleted comment)
minoukatze From: minoukatze Date: December 10th, 2004 12:00 am (UTC) (Link)
That's something I've been nervous about myself. Whenever someone would commission a pic as a hard copy gift, I'd only charge for materials and shipping, feeling guilty for earning money for a copyrighted character. If it's an original character that's one thing, but copyrighted...

As for fanfic commissions in general, if someone asks me personally to do a scene for them, again, I feel too guilty to charge. Ah well, I think I just have a guilt complex:)
leelastarsky From: leelastarsky Date: December 10th, 2004 06:39 am (UTC) (Link)
in fact I'd think they'd be more vigilant about fan art than fan fiction, since fan fiction isn't "competing" with any other derivative products they put out, while fan art is.

Oh, I have to disagree with that one. A fan will look at a piece of fanart for what - 30 seconds? - before moving on to the next piece. Sure they might come back to it, but there is no great investement of time involved. On the other hand, a fan could spend anywhere from 5minutes to a week (or longer!) reading a nice long fanfic.
And, speaking personally, I would MUCH rather give my precious time to reading a decent fan-written SW story than the EU drivel LFL dished up for us. It's one thing to read and hate a fanfic that cost you nothing online (maybe some ink and paper if you printed it out), but when you hate a SW book and PAY for the priviledge... *growls*

I think what really freaks them out about fanfic (apart from the X-rated stuff! ;~P ) is the concern that a fan will claim to have written the story they are now giving us as Ep1 for example.

I remember reading a fanfic (which I think was penned in the 80s, but I'm not sure. I read it c2000 after getting online) which had Luke, Han and Leia (and Leia's pet mini-dragon, Anne :~\ )dealing with a savage race who were heavily into scarification and tattooing, cutting off their noses, and pain in general. Certainly long before the travesty that is the NJO was inflicted on us. And I couldn't help suspecting that one of the Authors, when they got together for their big round-table thingy when they were working out the NJO, had read this particular fic and thought it 'cool'. Enter the Yhuzan Vong (can't be bothered looking up spelling, sorry).

Lucas tried to get around this problem by offering to host fansites at SW.com BUT (word flew round the art fraternity in a second) he had this wee sneaky loophole - that anything published on a site hosted by SW.com automatically became the property of SW.com. So in effect, if someone at LFL saw your design for a costume, creature, or even just liked your illo, they could publish it willy-nilly without paying you a cent. Same for any fanfic published there.

I'd point out that fanfic hasn't always been free to readers. Zines can be kind of pricey, actually, even though they only make back costs for the publishers.
This is very true. And the $8 you mentioned is extraordinarily cheap. All the zines I've been involved with have been around the $30 mark. And that's US $! Which, when translated into Aus$ comes close to $70! Plus extra for international shipping and you're skirting the $100 mark! (certainly not something I could ever afford, hence my eagerness to contribute and get a free copy)

I'm going to cheat and repeat what I wrote in maelwaedd's journal-
Before the internet, the only way you could get fanfiction was to BUY it. In zine form. Usually at conventions. (unless you contributed to the zine's content, in which case you received the zine for free or sometimes half-price) The zines were sold at a price that would cover their production costs, and quite often not all were sold, so there was a definate loss involved.

I guess what I'm trying to say is that the attitude that no amount of money should change hands for fannish product is a recent development, largely thanks to the internet.
fernwithy From: fernwithy Date: December 10th, 2004 08:49 am (UTC) (Link)
And, speaking personally, I would MUCH rather give my precious time to reading a decent fan-written SW story than the EU drivel LFL dished up for us.

Right, in the case of SW, I'd agree. In fact, I've pretty much explicitly said that SW fanfic should be written as an alternative to the EU. Which could, I suppose, get me into trouble.

It's in text-based fandoms like HP that it's a different story. Rowling isn't licensing out other texts--there's no novelization of the movies to be written, because they were novels first. There's no tie-in book series. Rowling herself has written some offshoots, but there's no text that actually competes with them. Art, on the other hand, was ubiquitous (before the movies made different images available). Any HP poster would have to have been done by an artist, and JKR and her publishers would get a cut of it. Toys would have been designed by artists, along with their packaging. All of that is officially licensed and a potential source of income, in way that no text product was.
leelastarsky From: leelastarsky Date: December 12th, 2004 06:04 am (UTC) (Link)
What about Tolkien fanart? Did that ever bother you? Until recently, that was the only sort of visual it had. And many, many fine artists have fan-arted it since the 50s, and a lot of them have been lucky enough to end up having that art published.

All illustration is fanart IMO. Painting pictures of words that someone else has written. (the Bible is a perfect example) How 'fannish' depends on the artist, or the one commissioning the art I suppose.
leelastarsky From: leelastarsky Date: December 10th, 2004 06:40 am (UTC) (Link)
Part2 cos lj wouldn't let me post it all at once :~P

I don't know whether or not leelastarsky's commission prices are the average, because I didn't shop around, but a colleague of mine who is interested in becoming an illustrator looked at the site and declared the prices to be exceptionally reasonable--cheap, in fact--for work of that quality.

Yes, very cheap. You can see what I should be charging according to the Australian Society of Authors. Just scroll down to 'Artists'.

That kind of symbiosis doesn't seem to be happening anymore, and the distance between art and fic, which had been closing, is now getting wider. It makes me sad in that way.

Do you really think so? Maybe it's harder for me to see because I write and draw. I know that I do love being able to converse with an author- to discuss what they see or had imagined in a scene. Even down to the detail of hairstyle on a character. Because, as an illustrator, I've always felt it my job to produce an accurate representation of what the author saw rather than my own interpretation. But, in the real world of publishing, authors don't even get to choose their illustrator, let alone meet them. And there is certainly no interaction between them about the art.

fernwithy From: fernwithy Date: December 10th, 2004 07:02 am (UTC) (Link)
But, in the real world of publishing, authors don't even get to choose their illustrator, let alone meet them. And there is certainly no interaction between them about the art.

Oh, it's definitely still closer than in the real world. No doubt about that. I might never have seen the UK cover of my book if a kind internet friend hadn't sent me a copy.

But once you're entering business arrangements, the dynamic changes a little. It's no longer, "Hey, I have an idea..." or, "Oh, maybe I could..." but, "I would like x." On the one hand, this is a good--it's neat to have the money there to remove the supplication factor. On the other hand, it feels less organic, less natural. Instead of artists and writers working together to make an interesting presentation, it's artists providing a service for writers (albeit at deeply reduced costs from the real world). It disequalizes the relationship in whichever direction you look at it--either the writer is paying so the artist is obliged to him or her, or the writer has a mere hobby which s/he is paying a professional to indulge. I think it's this last that writers mean when they complain, "But we can't get paid!" Not that they want to be paid for fanfic (being hired to do it would be nice; not lying there--I'd love to get a contract to write Marauders stories or intertrilogy SW stories, but that's neither here nor there), but that the money issue puts artists and writers on different levels--writing is nothing more than a hobby which is expected to be done for free, while art has tangible value. And that is also a distancing factor.

That said, obviously, I'm not against commissions. I enjoyed working with you and love my picture a great deal (even if some reviewer on the Quill thought Remus deserved much better than some middle-aged looking woman!). Nor do I object to having a semi-pro level of fandom--like I said, I'd love to see a kind of secondary tier of subsidiary rights that would allow for more variety than the official licensed material, and lots of space for AUs and so on. I just miss the spontaneity that was around when I started the Mask and worked at the TFN archive.
sreya From: sreya Date: December 10th, 2004 06:43 am (UTC) (Link)
My comment turned into an essay-rant *blush* so I posted it to my journal instead, so I wouldn't be cluttering up your comments area!
marukka From: marukka Date: December 10th, 2004 07:14 am (UTC) (Link)
I could never charge for fanart*. Since I generally don't have the time and desire to do art for free for other people, that means in practice I don't do fanart for other people but that it's art done mostly for my own enjoyment. It's the mindset I got used to in my trips through fandoms (which only started in the mid-90s, mind), and the breaking of that is what surprises me when I see artist treating it like any illustration assignments. Which isn't approval or disapproval really, just surprise :)

Are you sure it's the reason art and fiction communities stay seperate, though? Most places I've encountered the seperation has been there, and that's when the art is as non-commercial as the fiction. I always thought it was because while writers could enjoy looking at art and artists reading fiction, the whole discussion, theory and betaing parts is harder to bridge. I mean, I write only a little, and though I read a lot I don't have the skillset to help or say much detailed things about somone's writing... especially not in English. Hell, with the way people fret about reviews, I hesitate to comment on writing at all because I think I will sound idiotic. In art communities, on the other hand, I can actually contribute with something. And I get more out of discussing my pictures with other artists, especially as I'm working on them.

That seems quite natural to me, and if you also add in the tendency of quite a few fandom people to form small groups they don't move out of and in which they only discuss the aspects of X and Y's romantic relationship day after day (and such things, it should be obvious from the tone this is something I find unappealing about fandoms, though I think it's more often writers)... people make friends, and I don't think many people are spontanously going to break out of their social circles unless somone makes an effort to create a situation. But perhaps this is just what you mean, and the money issue is making it more difficult?

(Not that I'm not on top of fandom workings right now... I'm only skirting the far edges of fandoms anyway these days, and I have very little fanart of mine online at all)

* Fanart meaning third-party fanart from a large published media here. Fanart of characters who's owners are ok with it is all right.
alchemia From: alchemia Date: December 10th, 2004 12:38 pm (UTC) (Link)
Art is inspired and interpretive. Personally I think fanfiction should be considered in the same way, but its not. But the art is legal. You can't copyright a person's *interpretation*/vision/imagination etc..

As long only the original art is sold (not poster prints, puzzles etc.) then there is nothing the studio can licence. Unless they really wanted a sketch of remus and sirus going at it to make into puzzles to sell, then they'd have to pay for the art (but they'd never ever do that!)

And I'm not worried about honest artists, selling only their original stuff - There've been cases like this in the past and it goes to the artists, not the big businesses- like the "Dungeon Barbie" artist who sold her creations on ebay for a good amount of money; and she was USING actual Barbie dolls in her creations, but the courts said it was original art and not in competition to the toy maker.

think copyright law has gotten way out of hand. People have always responded to stories by making up stories and drawing pictures. Now, after a few millennia of human habit, it's illegal?

Yes, I absolutely agree. But I'd extend this to stories as well. I don't think anyone should be making thousands from a fanfic, unless they go thru the original creator or studio; but No one should be made afraid IMHO to ask for SMALL donations to cover zine printing costs or internet server costs.

And art supplies cost a pretty penny. Yes, it can be argued that the computers we write on also cost a lot, but chances are, we'd own them anyway

free sites wouldn't work for everyone! They don't work for us due to 1) adult content and 2) high bandwidth due to popularity. I don't think its wrong for a writer to want to recoup that. It's still not a lot- maybe a hundred or two per year depending on your bandwidth.

I don't know whether or not leelastarsky's commission prices are the average

Commission prices can vary greatly, according to subject, medium, talent, style, etc.. but I think the guideline one should look at isn't what OTHER artists make, but what that same artist makes on their ORIGINAL work. If they can commission for say, a family portrait and a portrait of some LotR or HP characters and get about the same amount- be that $50 or $5,000, then I think that's fine. Its when your original work goes for $50 but yoru fanwork goes for $800 that something seems "wrong" to me, because then it looks to me that $750 is beign paid for the characters; not that that is the value of the artist's work. If they do sell original work for $800 though, then I think if their fanwork goes for $800 it's fine, because that appears to still be a reflection of their work's worth, not "extra" for the characters.


My suggestion is to tweak the subsidiary rights clause in the contracts, make it possible to have a second tier of subsidiary rights, for which people pay a nominal fee--not more than US$100--or even just apply to the original writer for a license, at which point they can be official illustrators, official fic writers, whatever, and any profit they make would have a cut (5%?) sent to the copyright holder. I think that would be fair and would solve all the problems (except, of course, for things that the original owner wouldn't approve of).

Not fair IMHO because 1) as you said, JKR/Warners likely would object to certain subjects. 2) an artist as myself couldn't afford $100 a year (eg a student; someone living off disability checks and food stamps) 3) many of us DON'T profit from our art, once you count the materials and time and any fees for hosting images or auctions (its harder to put up artwork online due to bandwidth, also due to adult content, and even w/o a website, you may need a place like ebay which charges fees). JKR would like a cut of what, the $5 I made so I could buy some fresh veggies for the dinner table? Should I mail her a turnip?


That kind of symbiosis doesn't seem to be happening anymore, and the distance between art and fic, which had been closing, is now getting wider. It makes me sad in that way.

Me too.
fernwithy From: fernwithy Date: December 10th, 2004 12:42 pm (UTC) (Link)
Not fair IMHO because 1) as you said, JKR/Warners likely would object to certain subjects.

I'm sorry, but I do think it's fair for the owner of a property to say "no" to certain uses of it. If I owned a car which I let all my friends use (for whatever reason) but said, "I'd prefer that you didn't sell cocaine out of the back seat," I'd expect that to be honored.
ruxi From: ruxi Date: December 10th, 2004 01:57 pm (UTC) (Link)
Well, I know I, for one, neither charge nor would I ever consider the alternative. (then again, it's likely that my skills can hardly be said to rival those of the artists that do, indeed, take comissions)

I've always felt that, while you as an artist have invested your time, energy and a considerable amount of money on your supplies, the original work that inspired you to pick up that pen and start sketching is something you're trying to emulate -- and the result, while your work, just doesn't feel entirely work. I don't think I could sell something that didn't feel mine to seel to begin with.

It's not necessarily a matter of legal circumstances -- albeit, I can indeed see what you're trying to say in that fanart is far more dangerous, so to say, to the original work's market. If someone completely unrelated to fandom (say, just someone who's read the books) is one day shown a badly OOC fanfic, he'll snort a bit, shake his head, and then gladly point you to the books and say, "This by thy bible, heathen." If this same individual were shown a picture of goth Harry, he'd be o.O a bit, but the impression would still be likelier to linger that, well, maybe there was something in what makes Harry be, ye know, Harry, that he missed out on?

(And this not to mention the entire controverse that's caused on the "OMG, your Harry looks so much better than Dan! That should be how Harry should look like!")

On the other hand, though, I would like to specify that artists have the clear advantage (in relation to writers) of improving their work far more substantially with each sketch -- with a writer, yes, you get a feel of the usage of words, but unless you also read quite a bit, and unless you receive a few reviews on "do this, don't do that", you're basically more or less at a similar level to where you started from. (I'm not trying to say that fic writers don't improve on their own, heavens, no! But there are a few more external agents involved).

With artists, the more you work, the better you become. You yourself have a keener eye for detail and it suffices that you take a better look around you to realize whether this or that needs a more accurate rendering. So, yes, I think artists get off better in this particular respect.

Unfortunately, it's always been opinion that, while they are revered among themselves and hold to their worth, fanartists are generally looked down on (in comparison to fic writers). It's a very subtle affair, but I've always felt it to be there. (Or, at least this conclusion tends to be valid where the fandoms I've perused are concerned)

Anyway, a very interesting take on things. Most certainly got me thinking.
(Deleted comment)
30 comments or Leave a comment