A Primer on Digital Art Commissions, Artist Terms of Service, and Legal Considerations
Even before I graduated law school in 2017, for years I’ve been involved in the creative community. Even before I graduated in 2011 with my bachelor’s in Theatre Arts, I had already witnessed the many legal issues surrounding artists and creative rights. In my arts legal practice, one of the largest issues I encounter involve creating a complete and enforceable terms of service. This article serves as an informational primer only to give a look into some of the situations the arise when creating a TOS (terms of service) so for those looking for specific advice on legal issues, you will need to find an attorney to work with as every situation between seller and buyer varies depending on your goals, the buyer’s goals, and where you live. While attorneys can be expensive, you can often visit local law schools or contact your local legal aid office for information on low income programs () or arts legal clinics (such as the one hosted by Seattle University School of Law at the Ronald A. Peterson Law Clinic some semesters) to get assistance.
This will be a lengthy resource, so I’ve also thrown in a TLDR at the end of each section to help summarize important points to consider for those learning about artist TOS.
What exactly are “terms of service” for art commissions, and why do I need them?
For digital art commissions, terms of service (TOS) are a set of rules laying out the expectations between the seller and buyer. TOS will generally define things like payment arrangement, method, currency; as well as deadlines, product details, and rules for cancelling the agreement early.
Fighting fraudulent or bad faith chargebacks. This is a frequent occurrence, and sometimes artists do not have the information or proof of an agreement to fight back when someone takes a product without paying, doesn’t pay in full, or otherwise scams a digital artist out of their time and money. While there’s no guarantee a TOS will stop this from happening, it can be a cornerstone to getting payment servicers like PayPal to side with your claim by showing you followed through with the agreed upon commitment and the chargeback should not be honored. This is especially the case in artists that work with partial charges or deposits kept upon cancellation.
For example, it may be helpful to not only have documentations (i.e., screenshots) of someone agreeing to your commission, but also something in the commission agreement or TOS itself pointing to that agreement. This is especially important if real names aren’t being used. You need to prove to payment servicers like PayPal that the person doing the chargeback is undeniably the person in the proof of agreement and the person in the commission agreement. This can be done with including identifiers (i.e., Discord usernames, user ID) and PayPal email or other information. Imagine being the seat of PayPal knowing that anyone can pop open Photoshop and manipulate a screenshot. You want to document your agreements in a way that makes it easier on you to prove who the buyer is on PayPal’s end, that this person undeniably committed to an agreement to pay you, and that you delivered your product.
As a side-note, I have heard of cases where if you don’t properly set up invoicing to indicate it was a digital product, fraudulent chargebacks have had an easier time getting through if the transaction indicates a physical good was shipped for this sale and the art is actually digital with nothing sent to the buyer physically. Make sure whatever payment system you’re using to receive commissions is set up properly and accurately!
Protecting your rights in your artwork. Unless your buyer is paying for the IP rights in your work, or you’re an employee rather than a commission artist, you will generally keep rights to your work. With the advent of social media business models like streaming and online merchandise shops, many buyers seek to commission artists’ works to sell. These commercial agreements are going to be different because there need to be terms about things such as copyright to not only protect how the artist’s work is used, but also to ensure the buyer has the proper rights to do what they want to do. Some shop websites will not allow you to use others’ art for products unless you show you have rights to the artwork, and if that commission agreement doesn’t prove to them you have rights in the work you want on that keychain or mug, the buyer might have a hard time and come back at you requesting a refund because they can’t use your art for the purpose they bought it for!
Keeping your commission work neat and orderly. Having a solid terms of service is a great way to stay organized, especially if you need to keep track of revenue for taxes, want to review old agreements if someone asks about an old commission down the road, showing to prospective creative industry employers you take your commission work seriously, etc. The good news is, once you’ve figured out TOS that work for you, very little has to change over time to keep the agreement current. Even some attorneys will use “form agreements” that are standardized TOS needing little adjustment per client (though some attorneys like myself still prefer to tailor each agreement to the artist’s needs rather than using forms.)
Serving you in legal action. Ending up in court over your artwork is often the nightmare of some creatives, but a properly crafted TOS can help protect you should something happen. As a general rule of thumb, terms in a contract are construed against the drafter (or benefitting party) so it’s important to take care in making a TOS since if part of the agreement needs to be construed in a way that’d help the buyer more than the seller and it’s your agreement, the term will likely be construed to favor the buyer. There’s a lot of things that can go into a sample agreement that can help clear up ambiguities.
TLDR: A commission agreement “TOS” is an important contract and a license to use your work in the way you convey to the buyer meant to give both parties a rubric for the rules and process of a commission, and to provide legal protections in the event an issue arises before, during, and after the work.
Casual or Commercial: What rights am I giving away or keeping with my commission?
Usually there’s two branches to this path: you’re either independently creating some artwork for someone on request via commission or a series of commissions, or, you’ve been formally hired by someone or some company to produce art for their business. Depending on the terms in the agreement you sign, this can drastically effect the rights in your artwork.
The IRS has a good reference to help you know if you’re an independent contractor, which with art commissions is usually the case. To fall under a work-for-hire situation (where the buyer owns the work rather than the seller) there needs to be some kind of employer-employee relationship beyond being commissioned. The most common things are when an artist is hired by say, an indie group, and the indie group has total control over the art being made, the program or paint tools the artist is using, the artist’s work schedule, and so on. You can read more about work-for-hire and how Agency Law impacts artists rights on this PDF from the US Copyright Office.
Independent contractors keep the intellectual property rights in their work (i.e., copyright) which means, unless the terms specify you’re giving the buyer rights, they won’t have copyright in the work, meaning they can’t make copies to sell. This is very important because if someone’s commissioning you to make Twitch emotes for their channel, you’re going to want terms in the agreement that grant the necessary rights to the buyer for using those emotes on their Twitch channel, and possibly elsewhere depending on the buyer’s needs.
Since an agreement is meant to protect you and your rights, it’s also important to note that when you grant rights, a good practice is to have “license back” terms that make it clear what the artist will do with the finished product too. For example, some art agreements contain a clause that say something like Artist reserves and Buyer conveys all necessary license and rights in perpetuity for personal and portfolio use by Artist. A term like this, especially in the game publishing industry, can help keep clear that the artist’s artwork, even if full rights are transferred to the buyer, can still be used for personal use (like hanging a print of works in your room to be proud of) and portfolio use (for hunting for new jobs).
TLDR: There are a variety of rights often described as a “bundle of sticks” you can convey or keep, and each commission situation can be different, especially if dealing with buyers who are buying personal art and buyers who are commercial. While there’s a number of ways to express your intentions, it’s important that you specify exactly what can and can’t be done with your art. This is where getting legal help can be important to help convey with conciseness these boundaries in a commission agreement.
What does it need to be enforceable, and will court always be involved?
Court is not always necessary, though some situations may lead to having you go to court; however, small claims court is not as terrifying as it sounds if it’s a situation where you really need to recoup a loss. The goal of a good TOS is that you hopefully won’t need to wind up in court if your payment terms are clear, product deliverables are specific, and the rights conveyed or kept are transparent.
Even good commission TOS fail when the agreement becomes unenforceable. There are some major pitfalls to look out for, such as using browsewrap agreements on a carrd, or putting the TOS somewhere that isn’t really obvious the buyer consented to the terms you’re claiming must be enforced. This is why most professional commission agreements are still signed or electronically signed contracts with both parties names and contact information. Some laws vary depending on where you live or where the agreement takes place, so making something that can be enforced may vary. This part of the article will focus on just a few common pitfalls that I’ve come across in helping digital artists.
Common misconceptions about enforcing TOS. I will tell you right now, if you are still using a simple website footer or menu link to your TOS and assuming those rules will apply to your commissions with nothing else involved, or if you’re tacking on a TOS into your PayPal invoices as you deliver finished product, you might be surprised if one day an attempt to enforce these gets denied:
- An invoice is not a contract on its own. A contract requires mutual assent expressed by a valid offer and acceptance of that offer, with consideration (payment or some bargained-for exchange), capacity, and legality. An invoice might suggest these exist; however, it’s a unilateral document that lacks the mutuality needed. An invoice is not yet paid, so there’s no exchange yet. Tacking your TOS onto an invoice might put a buyer on notice to your terms after-the-fact, but at that point it might be too late. It would be unfair to regular consumers if they committed to purchasing something but didn’t receive the rules and terms of the purchase until after committing payment, so it’s generally not going to be enforceable for something like art commission work.
- For agreements, while signatures and personal contact info are the preferred way (and sometimes required by a payment servicer for proof there was an agreement) there have been successful cases made by artists that carefully documented their agreements using a combination of things like Google Forms, contact information, and buyer information to prove via electronic evidence the buyer consented to the agreement. The reason browsewrap (having a “TOS” link posted but not directly getting some form of consent to it) is bad is because courts have historically ruled against browsewrap cases unless it was proven that there was actual knowledge of the terms. You can still use a TOS link on your website, but know that you’re going to have to prove the buyer knew the terms and agreed to them. This is what makes Google Forms a popular solution, since you can get their name, email, Discord, put all the terms down, have an “I Agree” required option at the end, and have a nice little entry saved of all these details so if you need to contest a chargeback you can get a PDF showing the agreement.
There’s some further papers that explore and detail intricacies of non-traditional electronic agreements, such as Electronic Signatures, Agreements & Documents: The Recipe for Enforceability and Admissibility by Bruce S. Nathan & Terence D. Watson for further reading if interested on the subject.
TLDR: It’s not enough to just post your TOS on a website or tack it onto an invoice. Your buyer needs actual knowledge of the terms and must have agreed to the terms. Document everything, and make sure that in a worst-case-scenario, you can tie the agreement to the buyer. It’s 2021, wet ink is a thing in the past for most of us, but you still need to do something that shows a formal understanding and agreement to your terms.
A commission agreement or artist TOS can vary greatly, so there’s no one-size-fits-all answers, though samples exist that can help give you ideas to consider. I wouldn’t copy-paste sample forms though because, just like this article, they’re not meant to be the specific answer to your legal needs, but there to provide guidance to help you get started on figuring out your next steps as a creative.
As a digital commission artist, some examples you might want to include may be:
- Contact information! This is very important so buyer and seller know the official channels for all communication about work to go through, plus, it saves you the insanity of checking every email and social media account you have for messages if you set boundaries on where communications about the work need to be made.
- A description of the work, including terms about edits, limitations, and final approval (i.e., considering a work finished when it’s “to the buyer’s satisfaction” is a pitfall that can end up in a buyer who constantly rejects the work over subjectivity, rather than objective criteria so the artist doesn’t wind up putting more time than the commission is worth into edits!)
- A delivery schedule for every step, like drafts, that can also include anticipations for delays and when it’s appropriate to cancel the commission due to delays or missed deadlines. Often times a contract will provide for an “opportunity to cure,” so if you get sick and miss a deadline by 2 weeks you might have a clause that gives you up to 30 days to fix the situation and deliver without triggering your terms for a refund.
- The rights! As discussed above, detailing the buyer and seller’s rights in the artwork is very important! Copyright transfers must be in writing, so if you’re doing commercial agreements, you need this to convey copyright to the buyer to use properly.
- The amount it will cost, the currency to be paid in, and the due date; however, these terms can get more complex if you have payment plans, late payment fees, etc.
- Cancellation terms, and refunds if a deposit was involved. These should be clear with no question as to when they’re applied to avoid disputes about timely refunds or deposits withheld for partial work, and things like delivery of partial works if the commission is cancellable mid-completion.
Remember, a TOS or commission agreement is not just for the time you’re doing the work, but for safekeeping afterwards. If you sell a piece non-commercially and find it on ornaments at a hobby chain years later, these agreements are what can help you not only fight improper use of your artwork, but possibly even recoup some lost profits in some scenarios.
If you’re a high-volume commission artist, it may be worth shopping around for an attorney where you live who can help draft a solid agreement to use for your commissions going forward. Since commission agreements don’t often change, it’s a worthwhile investment. Legal help doesn’t always have to be expensive, so definitely check out your local Legal Aid for referrals or any arts pro bono clinics. If you end up having to hire an attorney and pay for the time, shop around and get quotes because the cost can vary greatly depending on if the attorney charges a flat rate or hourly. Like a primary care physician, you’ll want an attorney willing to work with you that understands you, your income situation, your goals, and your work.