Are these ToS clauses red flags, or am I just overreacting?

[BaronVonClop]

Hello all. Currently dealing with a problem artist (who will remain anonymous in this post, of course) who is taking an excessive amount of time. They're now threatening to invoke their ToS and force me to take a partial refund in response to a polite request to have the work completed prior to the PayPal claim window ending. Sure enough, I checked their ToS and found some staggering things that are big red flags to me, but I'm unsure if they are really as big of a deal as I'm reading them as, or if I'm overreacting and most other artists think these clauses are fair.

The artist did not notify commissioners of their ToS existing prior to payment, nor did they require us to acknowledge it prior to commissioning, so I'm only now noticing these practices. I'm no lawyer, but as far as I understand it that alone makes it unenforceable, but regardless I'd like second opinions. In particular, their ToS states:

• They may take as long as they want on any commission due to medical issues. There is no due date or time frame for any piece of art.
• You can pay an additional fee for a due date, but it must be mutually agreed upon and they might not even accept at all. The fee is not listed.
• They do not have a public queue, and they do not do commissions in the order they take them. There is no way to know how many other people are waiting for art, where you are, or even a rough idea of how long the wait is.
• The commissioner is not allowed to post or share the art anywhere. Instead, there is a separate, watermarked, low resolution version and you, the commissioner, may only upload that, no exceptions. The completed, full-res piece is for "personal use only" and may not be uploaded anywhere.

These are already a bit strange to me... but then the refund section begins to really worry me as a commissioner.

• 10% "processing fee" for all refunds. They just keep a flat 10% for no reason. This is digital art, by the by, so there's no materials to buy. I totally understand deposits on fursuits or physical art.
• Refunds take four weeks to "process".
• Partial refunds for partially completed art. Fair enough, even though the percentages aren't listed so they can make up anything they want. However, you aren't allowed to keep or use the partially completed art you've just purchased. If the commissioner is paying for it, isn't it theirs? Otherwise what am I being charged for?
• You can be "blacklisted" at any time for a variety of vague reasons including "being rude" or "being disrespectful". At that point, the artist is allowed to select how much to give as a partial refund, even though they are the one choosing to give the refund.

Furthermore, would these issues be appropriate to mention in a Beware about a transaction, or would it be considered off-topic? I feel that this is rather important for people to be warned about, because had I been aware of these clauses in the ToS it would have stopped me in my tracks from commissioning said artist. Instead, the artist does not mention a ToS or require acknowledging it prior to payment, and has only brought it up now that they want to try and get me to accept a partial refund.

I appreciate any thoughts and comments!

[Eden]

I'll just go ahead and address them as bullet points:

• That's not necessarily wrong, but you're still within your right to cancel as per Paypal.
• There's nothing wrong with this on the surface.  It really comes down to how they're applying this rush fee.  Like if everyone is in indefinite limbo until you pay the rush fee, then it's unethical.  If the rush fee is paid, and the artist works on your piece on what would otherwise be off hours to get it done sooner then that's fine.
• Red flag.  All artists should have public queues.
• Nothing wrong with this.  Distribution rights are held by the artist, and many folks ask the high res remain private.

For the refunds section:

• That's a no, and unenforceable as per Paypal.
• That's also a no, and unenforceable as per Paypal.
• No, the art isn't "yours".  You do not own any of the copyrights, nor are they transferred by default in a commission.  However in the terms of this fandom is generally understood that if the client cancels they get a partial refund and get to "keep" the art for personal use.  Maybe this part of their ToS is worded weird, but I would interpret this as you aren't allowed to take it to another artist for completion, aka it's not "yours" in a copyright sense.
• That's their prerogative, and there's nothing inherently wrong with carrying a blacklist.  I personally blacklist individuals I see being rude to other artists.  (If they're rude to someone else, they'll likely be rude to me too.)  However, the lack of a definite break down of how partial refunds are dished out is also a red flag.

Your question is something only a moderator can answer when we are looking at your post in queue with all of the proof.

If nothing has been done so far simply file the claim (not dispute) and move on before you lose your money.

[BaronVonClop]

Awesome, thanks for the quick response!

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Nothing wrong with this.  Distribution rights are held by the artist, and many folks ask the high res remain private .

I'm honestly surprised to hear that! I've commissioned in the range of 30 artists and I've never encountered even one that gives two quality versions, let alone barring me from showing anyone the good quality version (with the exception of in person, I guess? Only "uploading" is banned). Two versions with the same resolution, but one has a watermark for public upload, sure, understandable. Maybe I just commission lax people, but I was baffled when reading that, and even more confused now that I'm hearing it's fairly common! But fair enough; if this is common outside of my circle, I won't push it.

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No, the art isn't "yours".  You do not own any of the copyrights, nor are they transferred by default in a commission.

Yeah, now that I'm reading it back I realize I worded that poorly. I know that when commissioning things the copyright remains in the hands of the artist, no concern there. My confusion was more that every other time I've seen the partial refund clause, it has included the bit about the commissioner being allowed to use the unfinished art. But fair enough, your explanation is solid.

Regardless, that all makes perfect sense to me. Against the logical side of me, I'm giving them the benefit of the doubt and will wait another week to see if there's any progress, then probably follow your advice and just file the claim and write out the beware if nothing comes up. Thank you for the honest advice!

[cknsausage]

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The commissioner is not allowed to post or share the art anywhere. Instead, there is a separate, watermarked, low resolution version and you, the commissioner, may only upload that, no exceptions. The completed, full-res piece is for "personal use only" and may not be uploaded anywhere!

That is not unusual - I know that's the policy myself and quite a few other artists adopt. Artists hold supreme copyrights over their art, not the commissioner, so if they don't want the full res being posted elsewhere then that is entirely within their right.

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Partial refunds for partially completed art. Fair enough, even though the percentages aren't listed so they can make up anything they want. However, you aren't allowed to keep or use the partially completed art you've just purchased. If the commissioner is paying for it, isn't it theirs? Otherwise what am I being charged for?

You're paying for their time to make the art. The art itself is the by-product, the payment is usually considered to be for labour (ie, doing the art). So that would be an incorrect assumption.

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You can be "blacklisted" at any time for a variety of vague reasons including "being rude" or "being disrespectful". At that point, the artist is allowed to select how much to give as a partial refund, even though they are the one choosing to give the refund.

Again, I don't see the issue with a blacklist - I DO see a problem with the vague refund part (for instance in my ToS I have a piece about how I will absolutely not work with rude or arrogant commissioners - frankly because I've dealt with them before and they're never worth the money you get from them). But in mine I also will refund if payment has been taken before they show themselves as such.

Personally I think the part about no due dates or a public queue is a bit of a problem, because then from the other side (the client's point of view) - that leaves a lot of room for uncertainty - especially given the paypal claim deadline is 6 months. The lack of a queue means they also can't verify how long it usually takes the artist to do to the work so.. personally if I was a commissioner I would give it a miss based on that.

 

[BaronVonClop]

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That is not unusual - I know that's the policy myself and quite a few other artists adopt. Artists hold supreme copyrights over their art, not the commissioner, so if they don't want the full res being posted elsewhere then that is entirely within their right.

I'm definitely apparently in the minority there, then. As mentioned above, I've literally never heard of this and I have commissioned a fair number of artists. But fair enough, it's just my inexperience showing I suppose!

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Again, I don't see the issue with a blacklist - I DO see a problem with the vague refund part (for instance in my ToS I have a piece about how I will absolutely not work with rude or arrogant commissioners - frankly because I've dealt with them before and they're never worth the money you get from them). But in mine I also will refund if payment has been taken before they show themselves as such.

I have no issue with a blacklist, I apologize if that's how my post came across. If someone is being a jerk, then the artist is well within their right to refuse working with them. Zero problems there. My own ToS includes a "being too much of a jerk" clause as well, but it includes a full refund and the right to repost the piece as a YCH with their character rewritten. My concern was more with the fact that they could not only at any time declare "blacklist!" but also then keep as much money as they want (at least, in theory, because in practice I doubt that would hold up to a PayPal claim). I was looking at it from more of a "am I being scammed" point of view, I guess.

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Personally I think the part about no due dates or a public queue is a bit of a problem, because then from the other side (the client's point of view) - that leaves a lot of room for uncertainty - especially given the paypal claim deadline is 6 months.

That's basically my concern as well. The lack of public queue, the lack of due dates, and the idea of charging people to get a due date... on their own without the others, I could overlook (mostly, no public queue is a pretty big issue), but when they are all combined, I'm weary because that just screams "hey, you're never getting this before the PayPal claim window closes, if ever".

Regardless, thanks for the help. I'm glad I asked because I would have apparently made myself an ass in at least two places if I didn't, so appreciated.

Edited May 27, 2019 by BaronVonClop

[Zaukodar]

If the artist didn't put any notice of their ToS in their commission opening, communication with you, or their invoice then the biggest red flag is that this artist is not communicating very well (if at all) and it isn't necessarily the ToS that's the problem.  Likewise, if they didn't include some notice of a ToS in the aforementioned things (or somewhere public) then they'll have a hard time using it to pin it to you.  As for the ToS itself...

1. Four Weeks: they're either stalling or kiting, which is a gigantic red flag, and is ultimately not enforceable per PayPal and the credit card brands.
2. 10% Processing Fee: If this were part of the partial refund it might make more sense, but is ultimately not enforceable per PayPal and the credit card brands.
3. If the artist can verify they completed part of the work and are offering a proportional amount for the refund itself (that 10% thing notwithstanding) then it's fair, but may ultimately not be enforceable per PayPal and the credit card brands.
4. If the lack of a time frame is solely due to medical issues that makes sense, since artists are people with limitations, but under these specific circumstances the lack of communication makes it dubious.
5. The lack of a public queue is weird, but not a red flag per se--more of a yellow card.  The ultimate issue is a lack of communication, which makes it all the more dubious.
6. The rush fees actually aren't weird in this case: the artist has to agree to it and they have to decide how much is fair to them (based on any number of factors).  As Celestina said: if it's not being used as a "get out of limbo" card then it's fine, otherwise it's sketchy.
7. Posting protocol is the artist's prerogative since they own the copyright of the work, unless you pay for exclusive rights in which case be prepared to pay for them.
8. Blacklists are the artist's prerogative for any and every reason under the sun.

Again, the big issue is communication issues with the artist.  If they did not put their ToS in a public place where anyone could see it prior to approaching them, if they did not communicate it prior to agreeing to the project, and if they did not cite it on their invoice prior to receiving payment then the ToS likely cannot be enforced--card issuers do not take kindly to bait-and-switch.  Without knowing who the artist is or what the project was, if you're worried nothing is going to be done before the PayPal window ends just notify them that they can offer a fair refund by XXX date (I'd suggest a week prior to the window ending) or you can submit a dispute.  Bear in mind you will probably be blacklisted the moment you do, but it seems like you've got a strong case.

[Eden]

8 hours ago, BaronVonClop said:

Awesome, thanks for the quick response!

I'm honestly surprised to hear that! I've commissioned in the range of 30 artists and I've never encountered even one that gives two quality versions, let alone barring me from showing anyone the good quality version (with the exception of in person, I guess? Only "uploading" is banned). Two versions with the same resolution, but one has a watermark for public upload, sure, understandable. Maybe I just commission lax people, but I was baffled when reading that, and even more confused now that I'm hearing it's fairly common! But fair enough; if this is common outside of my circle, I won't push it.

Yeah, now that I'm reading it back I realize I worded that poorly. I know that when commissioning things the copyright remains in the hands of the artist, no concern there. My confusion was more that every other time I've seen the partial refund clause, it has included the bit about the commissioner being allowed to use the unfinished art. But fair enough, your explanation is solid.

Regardless, that all makes perfect sense to me. Against the logical side of me, I'm giving them the benefit of the doubt and will wait another week to see if there's any progress, then probably follow your advice and just file the claim and write out the beware if nothing comes up. Thank you for the honest advice!

I'd personally consider it a bit overkill to hand over something drastically lower res, but I'm assuming it's to prevent someone from swiping the image and printing it.  I'm assuming they're not handling you something pixellated to the end of the world and back, and it's just... way tiny right?  If it is full of JPG pixels and weird, then I'd call that an oddity.  I work in 3000 x 4000 pixels and will hand over 900 x 1200 for uploading to FurAffinity.

[BaronVonClop]

Ah, okay, being too-low-for-print-quality-but-still-viewable makes sense. I've still never encountered it, but that reasoning is certainly sound. Thanks for that; not being a graphic artist, I would have never considered that as an issue.

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I'm assuming they're not handling you something pixellated to the end of the world and back, and it's just... way tiny right?

Like almost everything else in their terms, it isn't defined and is left vague so I have no idea. It's entirely possible I'm just being jumpy.