Can an artist take away a unique character that was first visually displayed in a piece of artwork I commissioned from them and paid for?
<p>The artist did not ask me to sign any agreements and neither did I, the artwork was paid for, but after a personal conflict the artist told me they were "revoking" the character the artwork was of. They then posted the artwork on their social media and gave it away for free. Do I have any legal protections in this case? The artwork was a reference sheet for a character owned by me, but it's design was first created by the artist and there were no other pieces of artwork with the same character previously. Can an artist give away my character, if they were the first to visually express it in drawn form?</p>

<h2>It depends where this happened</h2>

<p>The basic rule of copyright is that the author/artist/creator owns the copyright. However, copyright law varies by country, for example:</p>

<ol>
<li>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a> the principal owns the copyright in <a href="https://en.wikipedia.org/wiki/Work_for_hire#:~:text=In%20the%20copyright%20law%20of,writing%20to%20the%20WFH%20designation." rel="nofollow noreferrer">work for hire</a> which is:</li>
</ol>

<blockquote>
  <p>(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)"</p>
</blockquote>

<ol start="2">
<li><p>In <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a>, the employer owns the copyright in works created by employees in the course of their employment but the IP created by a contractor is by law considered the property of the contractor unless otherwise stated in the contract.</p></li>
<li><p>In <a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" rel="tag">france</a>, the creator is <em>always</em> the owner of copyright irrespective of any employment or other contract.</p></li>
<li><p>In <a href="/questions/tagged/russia" class="post-tag" title="show questions tagged &#39;russia&#39;" rel="tag">russia</a>, the employer or commissioner owns the copyright <em>unless</em> the employment contract vests it in the employee.</p></li>
</ol>

<p>So there is no one size fits all - for your circumstances, in the first 3 jurisdictions the copyright would belong to the artist, but in <a href="/questions/tagged/russia" class="post-tag" title="show questions tagged &#39;russia&#39;" rel="tag">russia</a> it would belong to you (probably).</p>

<p>In some jurisdictions, the owner of a copyright can transfer it to another and in others transfer is not permitted and only licencing is allowed. In most jurisdictions that allow a transfer, they usually require that this be in writing.</p>

<p>Further, outside the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a>, most jurisdictions recognise the "moral rights" of creators separate to the proprietary rights of the copyright owner. These also vary by jurisdiction but generally include rights of attribution and rights of integrity of the work. They also may or may not be transferrable.</p>

<p>There is a very small chance that your contribution is significant enough that the work is one of <a href="https://en.wikipedia.org/wiki/Joint_authorship" rel="nofollow noreferrer">joint authorship</a> - if so you both own the copyright and neither can use it without the other's permission. It is also possible if the final work is based on your preliminary sketch then it is a derivative work but even then it would have separate copyright as it was made with permission.</p>

<p>If the artist owns the copyright, then they can make and use as many copies as they like.</p>

<p>It depends on where you are, among other things. <a href="https://www.artslaw.org/wfhire.htm" rel="nofollow noreferrer">In the US</a>, if you commission an artist to make a work of art for money, as an "employee" the work is a "work for hire" unless your written contract says that it is not (thus not applicable in this case). The case of <a href="https://supreme.justia.com/cases/federal/us/490/730/" rel="nofollow noreferrer">Community For Creative Non-Violence v. Reid</a>, 490 U.S. 730 is the leading case for distinguishing "employees" from "contractors". <a href="https://us.eversheds-sutherland.com/portalresource/lookup/poid/Z1tOl9NPluKPtDNIqLMRV56Pab6TfzcRXncKbDtRr9tObDdEuS3Dr0!/fileUpload.name=/WorkforHireLaws.pdf" rel="nofollow noreferrer">This article</a> compares US, Australia, UK, France, Germany, China and Japan on the "work for hire" point: France, Germany and China do not have the "work for hire" system; but France and Germany have exceptions for audio-visual work where the work may vest in the customer and not the artist.</p>

<h1>OP commissioned the work, so they own the copyright</h1>

<p>(Depending on the jurisdiction)</p>

<p>OP has a verbal (possibly written if negotiated over email) contract with the artist. They made an offer ('can you make this for me'), with consideration ('I can pay you $xyz') and the other party, the artist, accepted the offer ('yup, I can do that for you') <em>Presumably they were also (legally) able to accept the offer and do the work.</em></p>

<p>So that covers the 3-4 requirements for a contract.</p>

<p>OP held up their side of the agreement (they paid the artist)</p>

<p>Since OP commissioned the creation of the work, unless explicitly specified other wise, they would retain full ownership and rights to the work. Or in other words they own the physical and intellectual property (i.e., Copyright). </p>

<blockquote>
  <p><a href="https://www.clendons.co.nz/resources/background-papers/copyright-and-commissioned-works/#:~:text=This%20Rule%20(contained%20in%20section,the%20copyright%20in%20the%20work." rel="nofollow noreferrer">This [Commission] Rule... provides that, where an original work is created on a client’s instructions for a fee (or other reward), then the client (not the creator) owns the copyright in the work.</a> *</p>
</blockquote>

<p><em>This can smart with many artists (myself included) who have poured their heart and soul in to a piece. I am sorry to say this, but you have sold a piece of your soul. That's rough, but that is the way it is.</em></p>

<p>So unless there are some other details, OP owns the work and the artist 'revoking' is just breach of contract. But since OP has held up their side, the contract is still binding. </p>

<p>This means the artist posting to their Instagram is making a copy of OPs copyrighted work.</p>

<p>What OP does from here is more complex. Yes they could take the artist to court. But this is probably not worth their time, effort, energy. And the bad blood you have with the artist will only get worse. This may also affect your standing within the community. </p>

<p>OP could also make a DMCA takedown request with Instagram. But again this is going to get messy with the artist and perhaps the community.</p>

<p>What to actually do is out of scope, and is a separate question.</p>

<hr/>

<p>*This links to a page on NZ copyright law.</p>

united-states copyright russia