UPDATE: FAQ ENLIGHTENMENT
There is more addressing certain issues raised in the FAQs - which a lot of people are placing a lot of trust in (good luck to you):
From afterchain 's legal rep:
"Essentially part 3 states that you are granting us permission to generate thumbnails and previews from your artwork, and that we may otherwise take the necessary steps required to make your art viewable on someone's personal computer. Blah, Blah, Blah"
Essentially doesn't cut it, when it comes to contracts they need to specify what you are doing with the art, it doesn't matter what you tell us, what matters is what is in the contract. It does nothing to restrict what you do with it, it does not state, "only for resizing and access through other computers, etc." it is too general; the contract is vague and can be interpreted anyway seen fit.
"We also require that you provide us with permission to allow a third party to handle your material; this is necessary primarily in the event that you wish to use our printing service."
Once again incorrect, this is too broad of a generalization, you state it is used for printing service; that may be, but you do not specify this at all. ANY third party can use it if one is to agree to this. This is unrestricted access to the person's art, no matter if intentions are good or not, this loophole lets access be granted to any third party.
"The permissions we ask you grant us must be considered worldwide privileges due to the fact that deviantART may be accessed from any part of the world and are non-exclusive which means that you can grant this permission to other persons and companies as well- you are not limited solely to deviantART. Our use of your materials must also be considered royalty-free, which means that you cannot charge us a fee for the privilege of handling and displaying your works."
The contract does not make this clear. DeviantArt is accessible over the net, but you are not only stating that people can access it over the world, but that you can do anything with the art all over the world. This again is an unrestrictive policy that is a huge loophole. Also it does not state where you will make NO profit from the art, why should you be making a profit off the art? Your comment only covers half of it. If DeviantArt makes a million dollars from some deal that was based on someone's art, you don't have to pay them a dime.
"The bottomline is that the Submission Agreement is designed only to obtain the necessary permissions we require to legally handle your materials, as the artist you retain the full and exclusive copyrights associated with your original artwork; deviantART cannot be considered a 'co-owner' and the privileges which you grant to us may be revoked by you at any time."
DeviantArt has no need to be considered co-owner since it states in the contract that they can do what they want with your art in the first place. Advertising, promotion, videos, fliers, ads, it doesn't matter, they do not have to ask you a thing to use your art for the benefit of the site or the people involved. Your statement is void since DeviantArt is granted the ability to do what they want with it.
The new contract is too open, DeviantArt has no responsibility for their actions with an artists creations. They have limited what the artist has control over, how their art is used and who can use it. The loops in the contract favor DeviantArt as whole and is lopsided. A contract is meant to protect the user and the company equally if it is to have merit, which this does not.
If this contract is supposed to be a living document that can be amended, it needs to be specific and change or add as needed. There is no way you can accomplish what you are saying with how the contract is written, it is far too general.
ANOTHER LAWYER'S (apparently) POINT OF VIEW - and they also happen to be a deviant
Read this thread comments.deviantart.com/5/4988…
READ: the responses in this thread by *DarkHaven
Well thought out points are raised which should be considered
UPDATE - A LAWYER'S POINT OF VIEW
This is the response that Aunia received from her lawyer to her latest journal. Aunia queried the mobile service and Submission Agreement...
Now if this isnt a wake-up call I dont know what is...
And interesting - no comment on her lawyer's response from the powers that be. So much for "knee-jerk reaction"...
"Sent from my legal advisor
Per the questions from you and your peers that have been posed concerning DeviantArt being able to sell images or their rights:
You are completely right to take your work off immediately!
Although the agreement states that you own the rights to the work, it does not limit DeviantArt on what they can do as "promotion", there is nothing indicating that DeviantArt will not acquire any monies for said promotions. Basically they are leaving themselves open so that they will not be responsible for advising people where, when and if their art has been used for promotion and where it is being seen or sent.
Unfortunately you know as well as I that in this day and age that if a contract is not specific to what can and cannot be done by the company and artist there is too much room for open interpretation, which benefits DeviantArt only from the contract they have posted. All it takes is one person to sell or make a promotional agreement that allows money to change hands and you are out of the loop. 'Royalty free' in this case is another way of saying, if you see your art promoting something, no matter what it is, if they got it from DeviantArt or even another third party, you cannot go after them for royalties from that dealing.
Also a major factor that I see is the use of printing companies for print accounts. They do not specify how many companies they use, who they are and what happens if someone at one of these companies uses or sells someone's work illegally, I hope their contracts with the printers are clearly defined or else they could be in trouble there as well. Print accounts are way too vague. They need to re-evaluate who is writing these contracts, there are loopholes that are so big that they actually do no benefit.
Finally something that I noticed today as well, they have reworded parts of the contract yet again. Did they notify you of the revision? They have changed wording that affects the entire contract. They are not being professionals and nothing that I have seen makes me think that they had any legal advisors take a look at this. There are some serious problems with what they are doing; it looks like they are trying to pull something, even if they aren't.
I know we talked about this before you signed up and the agreement was acceptable, their changes seem minor at first glance, but even one word can change the circumstances of a contract, as this is a prime example. For instance when they mention third parties, they are stating anyone that is not the artist or the company. The words "third party" do not limit anything. SPAM is bought, sent and distributed by third parties.
My feelings are that they are making themselves 'untouchable' for any actions they take on behalf of anyone. Once again a contract is meant to protect both parties equally, this agreement is lopsided. There is nothing protecting your work, it doesn't matter that they say you retain the rights, since they can send or do anything with your art anyway. Once again they need to specify what they can do to and with your art.
P.S. Do not accept anyone's interpretation, you know the "This is what this means" comments, if it's not in the agreement what they say means nothing. The agreement is everything, its not what someone says."
What I say here is as a professional Graphic Artist with almost 20 years working experience. I get PAID for what I do - as an artist the only time I do Pro Buono (unpaid) work is when it is for a charitable effort. dA is not a charity and neither am I. I have done a lot of work over the years campaining for artist's rights and this is just another extension of that.
Most of the people who will not understand the implications of this new service along with the Submissions Agreement are not professional artists. The Agreement was never fair - but I am no longer willing to take risks with my work and identity especially in light of this new program.
The new deviantMOBILE program along with the Submissions Agreement are serious infringements of our rights as artists to control the usage of and profit from our own work.
They did not create a 'hot topic' nor was there any semblence of a new article. Or did they and we all just missed it?
I doubt that.
Why email? Something that most of probably don't check as much as we probably should. And I must say - I can't remember the last time I got ANYTHING in the mail from dA...
The Submission Agreement is such that dA can do what they like with our submissions without compensating us whilst they will surely profit through sales/licencing for electronic devices like mobile phones. Also no 'hot topic' or news mention on these changes.
Read carefully! And a word to the wise: when signing onto any services read the fine print very carefully and make sure you understand the implications of what you agree to. I didnt pay close enough attention when signing on here and now the chickens have come home to roost...
People dont realise that some phone services will now allow you to upload your own images to use - I have a friend who is a rabid Alan Rickman fan who uploaded some of her fav pictures of him to her phone and she uses them - to do this it would seem that it depends the type of phone and service you use. Some poor souls here think deviantMpbile is great because they will finally be able to use their work on their phone and would sign on to be able to do that...
Well I really dont care about such things myself - but deviants can already do that without getting themselves ripped off by dA.
But as I said most of the people who wont get the implications of this are not working artists and they dont have a clue about protecting their interests.
Royalty Free is a rip-off...
I have sued a VERY large well-known company over n agreement like this - and got PAID because it was patently unfair.
dA is talking a good game (often very defensively) to lull members into complacency. Anyone who trusts dA and feels reassured by what they are being told about accepting the current terms of the submission agreement is quite frankly deluding themselves. If dA has our best interests at heart then all it takes are
1. changes to close the loopholes in the agreement, to give artists back the control over their work,
2. fair use that does not exist,
3. to change how this mobile program will work so that deviants profit reasonably from it,
4. change the default in the mobile service that that gallery submission are INACTIVE from the beginning rather than active - and no more of this BS about well certain facets of submission process with regards to the mobile service and activation will change when IT finds the time.
Ive been here, done it and have several bloody T-shirts. Im a 39 year-old professional who is well-versed in the games that are played to maximise a company's advantage.
At the end of the day - dA is a business, its a corporation and it will look after its interests first including launching PR exercises to calm the storms now that people have woken up and realised that ignoring reading and not fully understanding agreements can have serious repercussions.
The powers that be are doing damage control. Pure and Simple. It's to be expected.
But they can put their money where their mouths and fingers are make the changes that many are suggesting. THAT will impress me more than any PR exercise they institute.
3. License. to Use Artist Materials. Artist hereby grants to deviantART a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
1. to prepare and encode Artist Materials, or any portion thereof for digital transmission, manipulation and exhibition in any format and by any means now known or hereafter devised;
2. to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital), and electronically publish any or all of the Artist Materials, including any portion thereof, and to include them in compilations for such purposes, by any and all means and media now known or hereafter devised (for avoidance of doubt, the rights granted to deviantART hereunder include the rights to make Artist Materials available on deviantART Site(s), third-party websites and electronic devices);
3. to modify, adapt, change or otherwise alter the Artist Materials (e.g., change the size) and use the Artist Materials as described in Section 3(b); and
4. the right to sublicense to any third party any of the foregoing rights in the Artist Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.
5. Artist hereby disclaims any and all right, title, or interest in any and all material with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated. As used in this Agreement, the term "Artist Materials" means Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, liner notes, and other graphical or textual materials that Artist uploads to deviantART, and any and all "skins," computer-generated images or other artwork or images that Artist submits to deviantART.
4. Name and Likeness. Artist hereby grants to deviantART:
1. a perpetual, worldwide, royalty-free, non-exclusive license to use Artist's name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials, and the deviantART Site(s)as described hereunder, during the Term;
2. Artist also agrees not to assert any privacy, publicity, moral or similar rights held by Artist (and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Artist Materials, Artist agrees that such persons shall not assert of any privacy, publicity, moral or similar rights) under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder; and,
3. To the extent that the Artist Materials contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Artist hereby grants to deviantART a perpetual, worldwide, royalty-free, non-exclusive license to use the foregoing in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials, as described hereunder, during the Term.
5. Payment Unless otherwise agreed between Artist and deviantART in a writing signed by both parties, the license granted to deviantART pursuant to this Agreement shall be royalty-free.
The full Agreement can be viewed here: about.deviantart.com/policy/su…
The Agreement as was changed from the old can be viewed here: about.deviantart.com/policy/su…
Now dA conveniently sets submissions as "ACTIVE" such that deviants will have to manually turn off each and every one through our Profiles. dA also conveniently doesn't have a feature that will allow us to deactivate our galleries en masse - saving a lot of time for someone with dozens of submissions.
To turn make your deviations "inactive" go to:
Profile > Deviant Management and then turn everything to "inactive".
Surely this phone service will not be free? Services of these type are lucrative high earners for the companies that provide them. dA isnt just doing this because its "a neat idea"...
However, according to the terms established by dA, Deactivation of a submitted deviation really doesn't mean anything. They are free to do as they like, including ALTERING our work for their own nefarious purposes. Watermarking - though a great idea to combat ripping - will not deter dA from using watermarked work should they so charge. A talented photoshopper can get rid of them...its been done...
And we should remember that once work is submitted it is never truly deleted. I have seen jobbing artists take down their galleries but the thumbs are still accessible. I know this for a fact because three of the people I have profiled in my Shoutboard had work pulled by dA or pulled it themselves and the thumbs on the Shoutboard were not affected.
These policies and services were clearly dedveloped to the advantage of dA rather than the artists making use of the service.
THIS INCLUDES ALL SUBMISSIONS INCLUDING THE WRITTEN WORD AND EVEN OUR DEVIANT NAMES!
And as I am a PAID subscriber and one who has bought many subs for others (even when I couldnt necessarily afford it) I really do think we deserve a lot more consideration than this.
What is going on is HIGHLY UNETHICAL AND GOES AGAINT ACCEPTABLE PROFESSIONAL PRACTICES!
I will not be contributing further submissions and am looking into taking down my gallery. But I have made many good friends here so I will still be around.
I urge all of you in America to contact your local chapter of the Graphic Artists Guild (www.gag.org/). For those that do not have a local chapter - contact the national office in NYC. I am a former member of the NY Chapter and Board member. I also served on the National Board and the Executive Committee of the National Board.
The Guild is very well known for its book "The Graphic Artists Guild Handbook of Pricing and Ethical Guidelines" which is updated yearly.
"The Graphic Artists Guild is a national union of illustrators, designers, web creators, production artists, surface designers and other creatives who have come together to pursue common goals, share their experience, raise industry standards, and improve the ability of visual creators to achieve satisfying and rewarding careers."
Guild Mission Statement
"The Graphic Artists Guild promotes and protects the economic interest of its members. It is committed to improving conditions for all creators of graphic art and raising standards for the entire industry.
The Guild is a union that embraces creators of graphic art at all levels of skill and expertise who create works of graphic art intended for presentation as originals or reproductions.
The wildly popular Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, for example, reflects current pricing trends and trade customs for the national markets, and is relied upon by artists who sell services -- and their clients who buy them.
Equipping artists with the skills they need to compete more effectively is what we do best. Local chapters offer programs and services that meet specific needs. But helping artists cope with today's market is not enough. When the market stacks the deck unfairly against artists, the Guild is determined to do something about it. The Guild's Legal Defense Fund puts our money on the line to help persuade courts to the artist's point of view, especially on issues that could affect the way artists will work in the future.
To artists who want to get ahead, having one good organization to recognize and meet their needs is a necessary fact of business. That's why thousands of artists and designers in the know choose the Graphic Artists Guild, because we put our members first."
Contact the Graphic Artists Guild
90 John Street, Suite 403
New York, NY 10038-3202
Regional Chapter Websites
Albany Chapter albany.gag.org
At-Large Chapter atlarge.gag.org
Boston Chapter boston.gag.org
Chicago Chapter chicago.gag.org
New York Chapter newyork.gag.org
Northern California Chapter northcal.gag.org
Portland Chapter portland.gag.org
Seattle Chapter seattle.gag.org
Southern California Chapter laguild.com
The Code of Fair Practice for the Graphic Communication Industry
The intention of the Code is to uphold existing law and tradition and to help define an ethical standard for business practice in the graphic communications industry. Drafted in 1948, the Code was conceived to promote equity for those engaged in creating, selling, buying and using graphic arts. The Code has been used successfully since its formulation by thousands of industry professionals to create equitable relationships in the business of selling and buying art. Each artist should individually decide whether to enter art contests or design competitions, provide free services, work on speculation or work on a contingent basis. Each artist should independently decide how to price work.
Relations between Artists and Buyers
The word "artist" should be understood to include creative people in the field of visual communications such as illustration, graphic design, photography, film and television. This code provides the graphic communications industry with an accepted standard of ethics and professional conduct. It presents guidelines for the voluntary conduct of persons in the industry which may be modified by written agreement between the parties.
Article 1 Negotiations between an artist or the artist's representative and a client shall be conducted only through an authorized buyer.
Article 2 Orders or agreements between an artist or artist's representative and buyer should be in writing and shall include the specific rights which are being transferred, the specific fee arrangement agreed to by the parties, delivery date and a summarized description of the work.
Article 3 All changes or additions not due to the fault of the artist or artist's representative should be billed to the buyer as an additional and separate charge.
Article 4 There should be no charges to the buyer for revisions or retakes made necessary by errors on the part of the artist or the artist's representative.
Article 5 If work commissioned by a buyer is postponed or canceled, a "kill-fee" should be negotiated based on time allotted, effort expended and expenses incurred. In addition, other lost work shall be considered.
Article 6 Completed work shall be promptly paid for in full and the artwork shall be returned promptly to the artist. Payment due the artist shall not be contingent upon third-party approval or payment.
Article 7 Alterations shall not be made without consulting the artist. Where alterations or retakes are necessary, the artist shall be given the opportunity of making such changes.
Article 8 The artist shall notify the buyer of any anticipated delay in delivery. Should the artist fail to keep the contract through unreasonable delay or non-conformance with agreed specifications, it will be considered a breach of contract by the artist. Should the agreed timetable be delayed due to the buyer's failure, the artist should endeavor to adhere as closely as possible to the original schedule as other commitments permit.
Article 9 - [NEW] Whenever practical, the buyer of artwork shall provide the artist with samples of the reproduced artwork for self-promotion purposes.
Article 10 There shall be no undisclosed rebates, discounts, gifts, or bonuses requested by or given to buyers by the artist or representative.
Article 11 Artwork and copyright ownership are vested in the hands of the artist unless agreed to in writing. No works shall be duplicated, archived or scanned without the artist's prior authorization.
Article 12 Original artwork, and any material object used to store a computer file containing original artwork, remains the property of the artist unless it is specifically purchased. It is distinct from the purchase of any reproduction rights.* All transactions shall be in writing.
Article 13 In case of copyright transfers, only specified rights are transferred. All unspecified rights remain vested with the artist. All transactions shall be in writing.
Article 14 Commissioned artwork is not to be considered as "work for hire" unless agreed to in writing before work begins.
Article 15 When the price of work is based on limited use and later such work is used more extensively, the artist shall receive additional payment.
Article 16 Art or photography should not be copied for any use, including client presentation or "comping" without the artist's prior authorization. If exploratory work, comprehensives, or preliminary photographs from an assignment are subsequently chosen for reproduction, the artist's permission shall be secured and the artist shall receive fair additional payment.
Article 17 If exploratory work, comprehensives, or photographs are bought from an artist with the intention or possibility that another artist will be assigned to do the finished work, this shall be in writing at the time of placing the order.
Article 18 [NEW] Electronic rights are separate from traditional media and shall be separately negotiated. In the absence of a total copyright transfer or a work-for-hire agreement, the right to reproduce artwork in media not yet discovered is subject to negotiation.
Article 19 All published illustrations and photographs should be accompanied by a line crediting the artist by name, unless otherwise agreed to in writing.
Article 20 The right of an illustrator to sign work and to have the signature appear in all reproductions should remain intact.
Article 21 There shall be no plagiarism of any artwork.
Article 22 If an artist is specifically requested to produce any artwork during unreasonable working hours, fair additional remuneration shall be paid.
Article 23 All artwork or photography submitted as samples to a buyer should bear the name of the artist or artists responsible for the work. An artist shall not claim authorship of another's work.
Article 24 All companies that receive artist portfolios, samples, etc. shall be responsible for the return of the portfolio to the artist in the same condition as received.
Article 25 An artist entering into an agreement with a representative for exclusive representation shall not accept an order from nor permit work to be shown by any other representative. Any agreement which is not intended to be exclusive should set forth the exact restrictions agreed upon between the parties.
Article 26 Severance of an association between artist and representative should be agreed to in writing. The agreement should take into consideration the length of time the parties have worked together as well as the representative's financial contribution to any ongoing advertising or promotion. No representative should continue to show an artist's samples after the termination of an association.
Article 27 Examples of an artist's work furnished to a representative or submitted to a prospective buyer shall remain the property of the artist, should not be duplicated without the artist's authorization and shall be returned promptly to the artist in good condition.
Article 28 [Original Article 28 has been deleted and replaced by Article 29] Interpretation of the Code for the purposes of arbitration shall be in the hands of the Joint Ethics Committee or other body designated to resolve the dispute, and is subject to changes and additions at the discretion of the parent organizations through their appointed representatives on the Committee. Arbitration by the Joint Ethics Committee or other designated body shall be binding among the parties, and decisions may be entered for judgment and execution.
Article 29 Work on speculation; Contests: Artists and designers who accept speculative assignments (whether directly from a client or be entering a contest or competition) risk losing anticipated fees, expenses, and the potential opportunity to pursue other, rewarding assignments. Each artist shall decide individually whether to enter art contests or design competitions, provide free services, work on speculation, or work on a contingency basis.
* Artwork ownership, copyright ownership and ownership and rights transferred after January 1, 1978 are to be in compliance with the Federal Copyright Revision Act of 1976.
I urge you to contact the Guild!!! www.gag.org
Contact The Writers Guild of America www.wga.org/
You can even register your work directly with them online!
Writers Guild of America, west
Address 7000 West Third Street
Los Angeles, CA 90048
Map to the Writers Guild
Telephone Within Southern California
Outside Southern California
Fax (323) 782-4800
Key WGAw Departments Phone/Email
Claims (323) 782-4663
Contracts (323) 782-4501
Creative Rights (323) 782-4741
Executive Offices (323) 951-4000
Intellectual Property Registry (323) 782-4500
Legal Resources (323) 782-4521
Public Affairs (323) 782-4574
They are afiliated globally with:
Writer's Guild of America, East (WGA East)
Writers Guild of Canada (WGC)
The Australian Writers Guild
New Zealand Writers' Guild
The Writers Guild of Great Britain
Society of Authors, Composers and Editors of Music -- Franco-American Cultural Fund
Société des Auteurs de Radio, Télévision et Cinéma
"The Writers Guild of America, west Registry, the world's number one screenplay and intellectual property registration service.
The Registry has been aiding in the creation of legal evidence since 1927, and has always been a vital instrument of the Guild's service to writers. The Writers Guild of America, west is the home of Hollywood's leading writers, and boasts a membership of 9,500 film and television writers.
The WGAw Registry registers more than 55,000 pieces of literary material each year and is available to members and non-members alike. Writers and other creators are invited to submit material to be archived by the Writers Guild to document their work."
If you have other questions, e-mail the Registry or call (323) 782-4500.
7000 West Third St.
Los Angeles, CA 90048
(323) 782-4500 Information
(323) 782-4803 Fax
WGA online www.wga.org/
Some intrepid Deviants have put together a petition! Check it out here resist.newklear.org/
Add your name and pass the word!
As I find more organisations to contact I will add them here.
dA doesnt care about what is right. They dont do anything to help with rippers, will try to force you to pay for any legal expense incurred on their part for being challenged over the 'use' or 'misuse' of your work and now with deviantMobile it seems that they are the biggest ripper of them all...
Official Mistress of s Dead Realm www.deviantart.com/deviation/1…
and Keeper of its Mancandy!
Official Mistress of Leisure to
Official Bodyguard to
My Poppi Chulo & Smurf Daddy -
Mi Chupacabra -
My Native American Sister -
Big Sister & Guardian Angel to -
dA Mommy & Guardian Angel to -
Keeper of the Canadian Bacon -
My Destroyer of a Milllion Lifeless Galaxies
My Sweet Angel
My Pookie Friend
My Sweet Inspiration
My Mr. Wonderful
My L'il Man
My Northern Light
My Favourite Doll
My Shining Star
"Don't think, feel. It is like a finger pointing a way to the Moon. Don't concentrate on the finger or you will miss all that heavenly glory." (Bruce Lee, Enter the Dragon)
"The growing and dying of the moon reminds us of our ignorance, which comes and goes, but the moon is full, it is as if the eternal light of the Great Spirit were upon the whole world." (Black Elk, Oglala Sioux - given to my by the wonderful subformulate)
"To find others, you must first find yourself.
To love others, you must first love yourself.
You must be yourself for others to find and love you" (from a dear friend in Australia - Laurels aka The Emerald Queen)
"Loving someone is one thing. Being loved by someone, that`s another. But being loved by the person you love ... well that's everything." (patronus-light).
"Yippee Kai Aye M*****F***** (Bruce Willis as John McClain - Die Hard)
"Please fix your own lie before you start attacking Mine. Thank you very much." (Matt Nathanson)
"The universe is such a crazy place -- I am but one voice in the comic fugue. dA gives expression to my voice." - ME
A special Thanks to Holly for my new Layout and for helping me to set it up
Fairy Art by: Amy Brown www.amybrownart.com/ - (Holly found them on Yahoo Image Search however. Thanks eclipsed-mind for recognizing the artist.)