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Adoptable Characters Being Resold

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Hello!

 

I am just looking for some advice on how to proceed, or if any one thinks this warrants a beware post.

I am having issues with a client that purchased two adopts from my recent sale of characters, and they also ended up purchasing two more of my former characters from some one else I sold them too. The main issue that I have is the client in question has been messaging multiple people in the past month attempting to resell the characters at exorbitantly increased prices. 5-10 times the original sales price. I have notes and email records from multiple people that have since contacted me about them with their attempting to resell at inflated prices.

I don't mind if people resell my characters, and would understand a markup if there was considerable artwork commissioned of them in the time that they owned them. But this is going from the $50 that they purchased them at, to an asking price of $500. Unfortunately I did not have any TOS down about restrictions reselling the characters, so I am limited in that regard. But would it be too much for me to refund them the amount they paid to reclaim the characters? I can't do anything about the ones they bought from the other client, and I am trying to reach them to see what they sold for, but it really makes me a little sick to my stomach that they are marking them up SO much.

Any advice  would be super appreciated! Thank you!

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Ultimatively, when you sell a character you give up all the rights to the character. It's essentially like buying a tomato from Walmart. Walmart cannot take the tomato back or punish you when you decide to sell the tomato.

When you sell a character, you'll have to be ready to accept that the customer can do whatever they want with the character, which means even reselling it. A TOS probably won't do anything since a TOS means Terms of Service. Adoptables are not a service, Adopts are an item or a product. A service is an action you perform for someone else like a haircut or a commission.

The customer may also refuse to accept the refund and won't give the character back.

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Adoptables are something that Boozy Badger has covered before.

You can see the article here.  I asked him personally how reclaiming and refunds work, and his response for that is here.

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The artists, therefore, has the right to demand others not use that specific character (with certain limited exceptions that we ain’t getting into here today) and, likewise, can actually demand that people stop using the character.  So, to steal from our above example, in this situation the default would be the Artist A creates Sammy the Slutty Salamander, and then Buyer A – instead of purchasing Sammy as an adoptable – instead just screenshots that shit and sends it off to Artist B to create the world’s first and greatest salamander/vulpine hot pegging action comic.  If Artist A becomes aware of this, Artist A has every right in the world to demand that the comic be taken down and that Artist B not display or use it in any manner (once again, subject to some general exceptions we ain’t discussing here).

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The artist can revoke the right to use the character whenever they fucking want unless they agree to certain limitations in the negotiation and purchase.  While this doesn’t necessarily have to be in writing, it’s a hell of a lot easier to prove when it is, though.  So, you know, join a group the artist doesn’t agree with and have no terms on the adoptable revocation of rights that limit it?  Feasibly the artist could send you an email terminating your license to use the same.

The tl;dr is that yes, you can take back the adopts any time you want.  Adoptables are a license to use a design.  Do you legally have to give a refund?  No.  However, what is legal and what is considered moral are two different things.  The adoptable market depends on trust, and an artist who recalls adoptables without a refund sours the trust.  Here we also consider it a bewarable offense.

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I might have to disagree with a good portion of that, Celestina. When an adoptable is sold, it becomes a "This character now belongs to (insert name)" situation. When a commissioner has already had art made of the said character, attempting to revoke said rights of the character to that buyer would become a messy ordeal. 

I'll use myself as an example: If I were to buy an adoptable, then I have a full-fledged reference sheet made to the character along with multiple pieces of artwork, then the original artist comes along and no longer wishes for me to use the character, they gave up on the rights to the character when the money exchanged hands. They can, however, attempt to make a deal to purchase back the character and the art to compensate for the rights, but then the artists of the other artworks will need to be notified as well for proper-credit or removal-requests. To further on this, if I were to deny the deal, then that is where this would end. However, the artist who made the original adopt art can request the original art to be removed if I were to have uploaded that to my own gallery(-ies) through one-on-one contact or through the administration means.

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On 3/17/2020 at 3:34 AM, VosurAekira said:

I might have to disagree with a good portion of that, Celestina. When an adoptable is sold, it becomes a "This character now belongs to (insert name)" situation. When a commissioner has already had art made of the said character, attempting to revoke said rights of the character to that buyer would become a messy ordeal. 

I'll use myself as an example: If I were to buy an adoptable, then I have a full-fledged reference sheet made to the character along with multiple pieces of artwork, then the original artist comes along and no longer wishes for me to use the character, they gave up on the rights to the character when the money exchanged hands. They can, however, attempt to make a deal to purchase back the character and the art to compensate for the rights, but then the artists of the other artworks will need to be notified as well for proper-credit or removal-requests. To further on this, if I were to deny the deal, then that is where this would end. However, the artist who made the original adopt art can request the original art to be removed if I were to have uploaded that to my own gallery(-ies) through one-on-one contact or through the administration means.

Legally though, that's incorrect. Unless a contract was made and signed assigning all rights of that character (in other words, its likeness) to you at the time of purchase, then the artist who originally created the likeness remains the copyright holder, as per Boozy's thread. You can disagree with that all you like, but that doesn't change the legality of it.

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Alright. Let's sort out what detail is given in the article:

1. "Adoptables are characters that are created by artists, and then placed out there for sale."
Okay. That just reiterates the mention that the character is sold. Not just the license-to-use is sold when purchasing an adopt. Usually it comes with a common-courtesy that the original artist is given proper credit due for the artwork, but that's a given to me.

2. "So the default, when there is no agreement and speaking in generalities, is that the artist is the holder of the copyright over the character from the moment of creation forward.  The artists, therefore, has the right to demand others not use that specific character (with certain limited exceptions that we ain’t getting into here today) and, likewise, can actually demand that people stop using the character."
Given. If the character hasn't been sold, it only belongs to the artist.

3. "Also, I should point out…without terms defining the scope of the artist’s ability to revoke, a revocable-at-will license is exactly what it sounds like.  The artist can revoke the right to use the character whenever they fucking want unless they agree to certain limitations in the negotiation and purchase."
BIG problem here if this is the case: If the artist does choose to revoke the character license to the commissioner, then the said artist would have to compensate based off of the amount paid to use the character, plus what extra art was made. But to reiterate this with the line from 1. : "Adoptables are characters that are created by artist, then placed out there for sale." And I'm going to stress the words "characters for sale", not "license for sale". There is a difference between those two.

So, if you make characters and intend to sell said characters, that's what an adopt is. If you intend to make characters and sell licenses to use the characters, it should be worded as "Licenses of Adopts for Sale" rather than "Adopts for Sale".

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