Submission Agreement Concerns

Browsing around our friendly land of the devious the past few days one might find a few ruffled feathers and the typical ruckus brought about by change.

Change is a hard thing to deal with for all people. We've learned this in a big way here at deviantART all these years, even small things like changing the layout slightly really upsets a lot of people.

So it is no surprise that when we change an agreement like the submission agreement even slightly, old & new issues resurface and everything has to be revisited once more. We understand this, and expected as much so it's really no big deal. If you have questions, ask away. If you raise a point that hasn't been addressed we'll be sure to answer as quickly as we can.

For Reference

<a href=about.deviantart.com/policy/su…>The Submission Agreement
<a href=about.deviantart.com/policy/su…>Changes Made to the Agreement

What I've found most interesting about the changes we made most recently to the submission agreement is that it's not the changes that have people worried. The concern is over items that existed in the agreement previously, the same points that every user has agreed to from just about the beginning of deviantART's life. The difference? We wanted to make sure we reinforced and clarified some of the clauses. So the law firm we're using decided to rewrite and simplify some of the wording to better protect deviantART. But the actual rights we are reserving are the same with little exception. The main new thing is our right of distribution to additional "electronic devices." Without this clause technically we couldn't allow people to browse deviantART from mobile phones, PDA's, iPod's and other devices with screens that we may make interfaces for, or provide methods to distribute to.

Some of the most heated and important clauses that some deviants had concern with I'll list below and I'll also provide one good example of why we need it even though there are plenty more. After all, one good reason is reason enough, right? Please refer to the agreement itself for the actual clauses being referenced.

Section 2: Ownership

A very important clause to keep in mind while I explain the rest of this:

You own your art at all times without any question. deviantART does not own your art, nor is it trying to take your art. And we aren't printing your stuff and selling it without you knowing about it or something crazy like that. I can't believe someone suggested we'd do something like that! This submission agreement does not give us the rights to do such a thing.


Section 3b: License to Use Artist Materials

Especially referring to the portion that states deviantART can publish your works to third party websites.  The whole point of joining deviantART and posting to deviantART is to publish your work on the Internet and its our job to get it out there.

We're actively working to better embrace RSS feeds. RSS is a format typically used to syndicate content, most frequently used by bloggers and news sites. We intend to employ similar methods to allow syndication of art work, like the daily top favorites and even the ability to stream your gallery to your personal website. We couldn't do this and things like this without third party rights because RSS feeders, blogging services and the like are third parties.

By the way this particular clause was not one of the changes we made to the submission agreement; it's been there for years.

Section 4, Name & Likeness

When you submit your art work to deviantART, along with your user name and other information that may link your online identity to your real identity you receive exposure and promotion from deviantART. And I think it's fair to say you don't expect deviantART to pay you to submit art to your gallery or to deviantART.

In order to do this, deviantART retains what is called a royalty free right to publish your art. An example of publishing your art work is placing it in your gallery for other deviants to see.

Legally speaking with this clause in place, we could take one of your works of art, create a deviantART advertisement and say COME TO DEVIANTART, THERE'S LOTS OF COOL ART HERE. Or, BUY A SUBSCRIPTION, HERE'S A PIECE OF ART WORK TO LOOK AT, or something to this effect. And so long as your piece of art work is still on deviantART's servers, we have the right to use it in such a way without paying you.

But we don't do this when it highlights a particular artwork without requesting further permission from the artist. We once did, and we apologized furiously and gave the artist a free subscription for a year as an apology and stopped using it immediately. It was a miscommunication from our creative team. Turns out the artist ultimately encouraged us to use the work anyway, and at that point we did!

By the way, Section 4(b) is a good example of what I meant when I said some clauses were reinforced and some rewritten. If you <a href=about.deviantart.com/policy/su…>view
the changes document under this clause you'll see how the general theme of the clause is kept the same, but modified slightly to better protect deviantART from malicious lawsuits that deal with rights of publicity, privacy, etc.


Section 11: No Liability for 3rd Party Use

By putting your art work on the Internet you are allowing people, people who we call in the agreement a “third party,” to view it and download it. I'm sure you are all aware of this: the very browser you use at this moment to view this text allows for a "PRINT" and "SAVE-AS" feature right in your "FILE" menu.

And so the second it's on somebody's hard drive or printed, deviantART is no longer responsible for what is done with it. Only because we can't be, we have nothing to do with it!

Trying to stop people from doing something so inherent to the basic functionality of a web browser (saving or printing) is a lesson in futility. It really is just the risk you take when you publish your work anywhere online, not just deviantART. It's up to you if publishing your work online is a worthwhile risk.  


Section 14b: Assignment

This assignment clause is quite liberal for deviantART's purposes, but quite necessary to our operations. For example if we wanted to partner with another company to help us better provide the service of deviantART, which would affect the art you've submitted, we can do so without asking you. We wanted this in case we ever needed another company to help us store and save images in order to reduce costs or something to this effect. But to date we haven't needed to do this. One day we may!

Another situation where this clause is useful is if deviantART would like to partner with a software company to build an application. Let's say you could browse art through this deviantART branded application, but the app was technically owned by another company. We reserve the rights to do this. And you always reserve the right to prevent us from doing this by removing your work.

There is no example of a situation where we currently use the rights granted to us in this clause. But there may be a situation in the future where we might. In a situation that changes the way your work is distributed off the site we would give you options not to participate the way we've done with deviantMOBILE.


Section 14f. Survival

A scary clause like this might put you off:

"Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, and 14 shall survive any termination of this Agreement. In addition, any sublicenses granted to third parties for the display of Artist Materials on electronic devices pursuant to Section 3 shall survive any termination of this Agreement."

But certain rights need to survive the agreement. For example, lets say you submit a piece of art work that is in some way illegal. You then delete it and withdraw from deviantART. Just because you deleted it and withdraw doesn't mean that you stop being  responsible for the liabilities (if there are liabilities) resulting from when the piece you submitted was still on deviantART. Even though it's not on deviantART anymore, we can still hold you responsible for it because you should be responsible for it!


Community Matters

I've seen a number of groups and journal entries popping up the last few days that  I find to be extremely misinformed. Others I find to be legitimate and worth reading.

newklear started a campaign he calls RESIST which can be found here. It started off completely misinformed claiming that deviantART was stealing your work and selling it. The typical hysteria where someone exclaims through the ceiling that they're being screwed. But since then it's evolved into a site that is equally uninformed but with greater purpose. It requests protections under such things as the Creative Commons license and International Copyright treaties.

Response: That's great and all but the Creative Commons license and the Copyright Treaties - - a subject that on an entirely different note we will be addressing in the future - - don’t have anything to do with the submission agreement.  As I said before at the beginning, you own your artwork at all times and the copyright.  Any creative commons or other license we make available on deviantART would be in addition to the submission agreement for deviantART. I do respect newklear and his effort to stand up for his rights. That's very commendable.

<a href=comments.deviantart.com/5/4994…>A user posted a response by their lawyer which I find to be relatively accurate. That's exactly what a lawyer would say; their job is to make sure you don't lose any rights at all. If it were up to your lawyer, their legal advice to protect your art work is to register it with every office possible, then save it on a disk, put it in a bank and never show anybody.

The bottom line is: their lawyer’s legal analysis is accurate when it comes to posting your art work on the Internet ANYWHERE even if there is no legal agreement. But what the lawyer doesn’t analyze is what you get in return for posting to deviantART.  For example if you post your work online pretty much anywhere including your own website someone, anyone, can copy it to their hard drive and turn it into wallpaper without paying you or browse it “for free” on their mobile device.  Their lawyer says: “that’s bad; you should get something when your work is used.”  But if you also told him “Oh, two million people a day from every part of the world will be able to see my work when its posted and I can try and sell them prints of it and hundreds of thousands of artists will see it too and some of them will give me advice and comments that help me as an artist and make me feel good about being around other artists that can actually understand what I’m doing…;” then the lawyer would probably say “Oh, well I just wanted you to know what your rights were.”   

deviantART in this instance is your "service provider" and must protect itself from frivolous lawsuits. We do have smart lawyers and we do use them well and their job is to protect the community and its artists so we can all have this community. We run an open and free atmosphere that anybody can join. And approximately 1% of those millions of people join with bad intentions and some of those could do really bad things. We have an agreement in place that protects deviantART, because, if we didn't, we'd get frivolous lawsuits that would shut us down.

We reserve greater rights than we actually use so that we do not take risks we cannot afford. And we always allow artists to walk away, we do not lock you in. If we tried to lock you in, you should be worried. But you can walk away at any time.

Bottom line: We don’t screw over artists and never will even if hell freezes over.