DC Tells Artist to Stay Out of NFT Business. 1 1

[Hulk213]

2 hours ago, drotto said:

I think DC coming out so strong against NFT's while commissions have basically run unchecked for decades is simple, the amount of money involved. During conventions an artist getting a few hundred or even a few thousand dollars for a commission was considered an insignificant amount money, and attempting to collect fees for the IP or suing the artists was not worth it.  Instead, the companies benefitted from the goodwill from both the artists and the fans by allowing them to continue. Now when NFT's are crossing into the millions, that balance between goodwill and making money shifts dramatically, they want their cut.

It would be understandable if they wanted to control it and get their cut. I just think it is going to be impossible. Telling your artist not to participate is one way but what happens when those artist see their art being bought for millions because someone (legally or illegally) put up a commission piece for sale? 

[drotto]

13 minutes ago, Mftonto said:

It would be understandable if they wanted to control it and get their cut. I just think it is going to be impossible. Telling your artist not to participate is one way but what happens when those artist see their art being bought for millions because someone (legally or illegally) put up a commission piece for sale? 

In an ideal world both the artist, publisher, and owner deserve their cut.  The largest issue right now is it is basically unregulated.  There must be a system were providence is established before the original sale.  The largest issue right now is (as you stated) somebody screenshotting something, creating the NFT and selling it with no other chain of ownership or royalties being established. It can be done, but it will require new laws dictating how these NFT are created, and the auction houses will need to be regulated. I agree it is not going to be easy.

 

Now beyond the original sale the artist or publisher should not get anything more, when it happens in the traditional fashion.  Simple the artist sells their work to a buyer. Same as in the physical art world the original artist made money when they sold it the first time, if it changes hands again, the artist gets nothing.  Once sold they have no further claim on the piece, except (arguably) if the piece is then published and used for profit, but the art does not change hands.  For instance, Marvel buys the rights to publish my commission, I make money on that sale and retain the original.  Then the artist could argue they have rights to the commercial use of their work.  

 

In the strictest sense, commissioned art where an artist profits off a companies IP without paying for the rights is illegal. In the comic world, till now companies have chosen not to enforce this, because that situation was mutually beneficial.  This, unfortunately, could change that dramatically, and could devastate the convention commission business. No longer does a fan get a piece in artists alley and share it out of excitement.  Now they create a high quality scan and sell the digital copy while retaining the original. The owner of the commission has the right to sell what they own in that situation, they bought it when they bought the art. If they are now making more money, without losing possession of the original should the artist get a cut of that?  Ethically, I would say yes, but I do not see any law currently governing that or how that would be done. I also foresee a situation where artists scan all commissions before the original changes hands so they can sell both the hard copy and the NFT. This could go south very quickly.

[Rick2you2]

56 minutes ago, drotto said:

In the strictest sense, commissioned art where an artist profits off a companies IP without paying for the rights is illegal. In the comic world, till now companies have chosen not to enforce this, because that situation was mutually beneficial.  This, unfortunately, could change that dramatically, and could devastate the convention commission business. No longer does a fan get a piece in artists alley and share it out of excitement.  Now they create a high quality scan and sell the digital copy while retaining the original. The owner of the commission has the right to sell what they own in that situation, they bought it when they bought the art. If they are now making more money, without losing possession of the original should the artist get a cut of that?  Ethically, I would say yes, but I do not see any law currently governing that or how that would be done. I also foresee a situation where artists scan all commissions before the original changes hands so they can sell both the hard copy and the NFT. This could go south very quickly.

This isn’t legally correct. When someone gets a commission, he/she is only getting the piece of paper with the artist’s work on it, not the intellectual property that went with its creation. The copyright on the piece remains with the artist, who has the sole right to reproduce it. I remember having that discussion once with Howard Chaykin; he was a bit surprised I was aware of it. So, in context, if you get a commission from an artist, digitize it, and sell the digital version, your gross income minus provable expenses is all due and owing to the artist. The piece of paper, however, is yours to sell as you see fit.

[drotto]

39 minutes ago, Rick2you2 said:

This isn’t legally correct. When someone gets a commission, he/she is only getting the piece of paper with the artist’s work on it, not the intellectual property that went with its creation. The copyright on the piece remains with the artist, who has the sole right to reproduce it. I remember having that discussion once with Howard Chaykin; he was a bit surprised I was aware of it. So, in context, if you get a commission from an artist, digitize it, and sell the digital version, your gross income minus provable expenses is all due and owing to the artist. The piece of paper, however, is yours to sell as you see fit.

Fair enough. I was not sure, and am not convinced. It would still create massive IP issue for the artists if they make big money of the IP when they have not paid royalties to the companies. But there are some of the legal issues with NFTs.  I know that you can not publish for profit someone else's are without paying them.  You could argue that selling the NFT is not publication for profit, it is selling a "physical" copy, which you are the owner of the physical copy have the right to do, just as you could sell the paper copy.  Thus the grey undefined zone.

 

This article goes into the issues.

https://www.vice.com/en/article/pkd83y/people-are-spending-millions-on-jpegs-tweets-and-other-crypto-collectibles

 

Edited March 15, 2021 by drotto

[Rick2you2]

10 hours ago, drotto said:

Fair enough. I was not sure, and am not convinced. It would still create massive IP issue for the artists if they make big money of the IP when they have not paid royalties to the companies. But there are some of the legal issues with NFTs.  I know that you can not publish for profit someone else's are without paying them.  You could argue that selling the NFT is not publication for profit, it is selling a "physical" copy, which you are the owner of the physical copy have the right to do, just as you could sell the paper copy.  Thus the grey undefined zone.

 

This article goes into the issues.

https://www.vice.com/en/article/pkd83y/people-are-spending-millions-on-jpegs-tweets-and-other-crypto-collectibles

 

There are 2 other issues intertwined here which I didn’t mention: trademark and contract rights. If an artist does a page of Batman art for DC, he presumably signs a contract with them governing ownership and usage. So, the artist gets to keep the original, as copyright holder,  but I am willing to bet DC retains the right to reprint it. Perhaps the right is co-owned, in some fashion, perhaps not; I don’t know. But I doubt DC would allow someone to retain reprint rights to publish it  commercially. Otherwise, there could be legal “bootleg editions” of the comic published elsewhere (which is again raising a question about monoprints). Then, there is the trademark question (which can also include a copyright question about the character image). Who owns the right to publish any version of the Batman except DC? So, DC may have the right, in theory to already demand a piece of any Batman commission; it just hasn’t exercised that right—yet. And if you think this is confusing, think about what studios must have gone through to release their old movies for home use, and why some movies have not or were not available for years (like Gentleman’s Agreement). There you have a mix of images and music, as well as characters.

Edited March 16, 2021 by Rick2you2

[vodou]

Re: Contracts...I think it should be assumed that all post-Letter new contracts will have language defining all rights, and exactly what DC (and Marvel too...no letter yet shouldn't be construed as ignorance of the matter!) is buying and what the creators (not just artist) are selling. My guess (just that) would be that creators will get paid less and retain less now. And if the creators (except absolute bankable top brands) have a problem with that...there's a whole world of other creators out there for publishers to "use", there's no labor shortage. This is just business

Edited March 16, 2021 by vodou
typo

[Taylor G]

3 hours ago, Rick2you2 said:

So, the artist gets to keep the original, as copyright holder,  but I am willing to bet DC retains the right to reprint it. 

Why doesn't the publisher retain the copyright, with full rights to reproduce the art, the artist only entitled to royalties on publication?

Speaking of which, as I understand it, any Heritage or CAF scan of a page of art is technically a violation of copyright (as is a link to said image posted in places like this forum).

Interesting things could happen if AT&T executives start weighing in.

[zhamlau]

14 hours ago, Rick2you2 said:

This isn’t legally correct. When someone gets a commission, he/she is only getting the piece of paper with the artist’s work on it, not the intellectual property that went with its creation. The copyright on the piece remains with the artist, who has the sole right to reproduce it. I remember having that discussion once with Howard Chaykin; he was a bit surprised I was aware of it. So, in context, if you get a commission from an artist, digitize it, and sell the digital version, your gross income minus provable expenses is all due and owing to the artist. The piece of paper, however, is yours to sell as you see fit.

In theory shouldn't Howard not have the right to draw and sell a piece of art with Star Wars owned trademarked/owned characters on it like Luke or designs like an X-Wing? Can you create and sell items with IP you down own?

[Gatsby77]

1 hour ago, zhamlau said:

In theory shouldn't Howard not have the right to draw and sell a piece of art with Star Wars owned trademarked/owned characters on it like Luke or designs like an X-Wing? Can you create and sell items with IP you down own?

Up to now, yes - because the monetary amounts were small and it wasn't enforced.

But I see the logical end game of this as two-fold:

1) A future where the digital NPT of a piece of classic original art is actually worth more than the original (may be unthinkable right now, but not in the future)

2) A future where Marvel / DC / Image etc. expressly forbid artists from using their characters for sketches / other works unless expressly authorized, whether traditionally "published" or not.

Yes - we've seen traditional cases such as Air Pirates Funnies where Disney went after the underground comics producers for unauthrorized use of Disney characters.

But what if it now becomes illegal for Jim Lee or Neal Adams to do a Batman sketch or Jim Starlin to do a Thanos sketch because the NFTs of said sketches could net them tens of thousands of dollars each? Hell - Disney could even forbid Liefeld from doing Deadpool sketches without officially licensing the character for use or giving the company a cut...

[NicoV]

2 hours ago, Taylor G said:

Speaking of which, as I understand it, any Heritage or CAF scan of a page of art is technically a violation of copyright (as is a link to said image posted in places like this forum).

Interesting things could happen if AT&T executives start weighing in.

That's already what Moulinsart does, by suing people who use images of Tintin on social networks, artworks or anything else - like this one: https://www.theguardian.com/books/2021/mar/12/herge-heirs-sue-artist-over-his-tintin-edward-hopper-mash-ups

Some European auction houses do not display any picture of Tintin original art anymore, to avoid any potential copyright issue with Moulinsart.

https://en.wikipedia.org/wiki/Hergé_Foundation

[Rick2you2]

2 hours ago, zhamlau said:

In theory shouldn't Howard not have the right to draw and sell a piece of art with Star Wars owned trademarked/owned characters on it like Luke or designs like an X-Wing? Can you create and sell items with IP you down own?

Yes, you can. Howard would likely be in violation of trademark/copyright law, and would have to pay damages if pursued, but the damages would not be worth much if a judge found no implied consent to use it for free.

[Rick2you2]

3 hours ago, Taylor G said:

Why doesn't the publisher retain the copyright, with full rights to reproduce the art, the artist only entitled to royalties on publication?

Speaking of which, as I understand it, any Heritage or CAF scan of a page of art is technically a violation of copyright (as is a link to said image posted in places like this forum).

Interesting things could happen if AT&T executives start weighing in.

The answer is a bit complicated. Prior to 1976, the publisher would automatically retain the copyright on a theory that the work was “work for hire”. At the urging of Neil Adams and other artists, the major publishers of comics, including Jim Shooter at Marvel, then agreed to let artists keep their work. Then, the law itself was changed in 1976 to make that basically the universal rule for any artistic design.  But don’t forget contract law. While the artist retained the copyright, he could sell it or assign it to someone else—like giving the right to reproduce and publish the art to the publisher. That way, the publisher got what it wanted, and the artist got to sell the art. As to royalties, that is really a matter of contract.

 

[Rick2you2]

29 minutes ago, NicoV said:

That's already what Moulinsart does, by suing people who use images of Tintin on social networks, artworks or anything else - like this one: https://www.theguardian.com/books/2021/mar/12/herge-heirs-sue-artist-over-his-tintin-edward-hopper-mash-ups

Some European auction houses do not display any picture of Tintin original art anymore, to avoid any potential copyright issue with Moulinsart.

https://en.wikipedia.org/wiki/Hergé_Foundation

It is worth mentioning that Europe has stronger protections for the artist’s copyright. In the US, copyright recovery generally ends with the first sale. I don’t know the details, but I think that if a resale  is above a certain amount, the artist also gats a cut, 

[Rick2you2]

1 hour ago, Gatsby77 said:

Up to now, yes - because the monetary amounts were small and it wasn't enforced.

But I see the logical end game of this as two-fold:

1) A future where the digital NPT of a piece of classic original art is actually worth more than the original (may be unthinkable right now, but not in the future)

2) A future where Marvel / DC / Image etc. expressly forbid artists from using their characters for sketches / other works unless expressly authorized, whether traditionally "published" or not.

Yes - we've seen traditional cases such as Air Pirates Funnies where Disney went after the underground comics producers for unauthrorized use of Disney characters.

But what if it now becomes illegal for Jim Lee or Neal Adams to do a Batman sketch or Jim Starlin to do a Thanos sketch because the NFTs of said sketches could net them tens of thousands of dollars each? Hell - Disney could even forbid Liefeld from doing Deadpool sketches without officially licensing the character for use or giving the company a cut...

Then the top artists are likely to negotiate better terms, or leave the field, or publishers might have to pay a lot more for the work. Don’t forget that part of a price is based on rarity, and demand. All of this has to shake out in the next few years.
My guess is the publishers will offer to create NFT’s for artists in exchange for a part of the take, thereby freeing artists from figuring this stuff out or from going to an unreliable source, while also offering extra value to the artists who do so.

[Hulk213]

6 hours ago, Rick2you2 said:

Then the top artists are likely to negotiate better terms, or leave the field, or publishers might have to pay a lot more for the work. Don’t forget that part of a price is based on rarity, and demand. All of this has to shake out in the next few years.
My guess is the publishers will offer to create NFT’s for artists in exchange for a part of the take, thereby freeing artists from figuring this stuff out or from going to an unreliable source, while also offering extra value to the artists who do so.

Correct me if I’m wrong, but wouldn’t it be the similar as the artist now that create limited quantity sketch books? They more than likely just give the artist a mini license for that particular product category?

[Rick2you2]

10 hours ago, Mftonto said:

Correct me if I’m wrong, but wouldn’t it be the similar as the artist now that create limited quantity sketch books? They more than likely just give the artist a mini license for that particular product category?

That’s also possible. But, as one artist wrote on her Facebook page: “What is this junk about NFT’s? ...I feel like a fossil.” Packaging the product keeps artist loyalty and allows DC to maintain some quality control over the product, while assuring DC’s piece of payment. They could also offer a split system including your suggestion.

[Kohei]

The Onion for the win

https://www.theonion.com/the-onion-s-guide-to-nfts-1846489288?utm_medium=sharefromsite&utm_source=_twitter

[drotto]

This is just brilliant!!!  John Cleese gets it.

https://decrypt.co/62217/monty-pythons-john-cleese-mints-brooklyn-bridge-nft

 

[Hulk213]

An Open Letter To Comic Book Publishers About NFT From Mike Deodato

https://bleedingcool.com/comics/an-open-letter-to-comic-book-publishers-about-nft-from-mike-deodato/

 

 

[drotto]

47 minutes ago, Mftonto said:

An Open Letter To Comic Book Publishers About NFT From Mike Deodato

https://bleedingcool.com/comics/an-open-letter-to-comic-book-publishers-about-nft-from-mike-deodato/

 

 

I was just going to post this.  This thing is going to blow up.  

 

Last week I saw a post from Artgerm on Facebook that he is going to start selling his original stuff as NFT's, nothing IP or copyrighted. I can tell you that the comments were like 3 or 4 to 1 against him doing this.  I was surprised people were that against it. Most of the negatives centered around two questions.  How does this constitute ownership when others can continue circulating images online without paying any fee or asking for the rights.  You have ownership but really no clearly established rights, and the artist retains the IP rights.  Second, many were questioning the high environmental impact that creating and maintaining NFT's entail.