Should Commissioners Be Able To Issue Takedowns?

Does a commissioner retain any ownership over their commissioned pieces? If someone creates an edit and the commissioner of the source issues a takedown, what should site policy be?
 
Surely, the artist will be the final word in the issue, but what rights do commissioners hold?

It’s a tough say. I’d say commissioners and artists should have equal say when it comes to takedowns.

Personally, I think they should have at least some rights. The image wouldn’t exist without them.  
Unless the image includes their OC, in which case I think they should have just as much right as the artist, since it’s their character. Heck, even if they didn’t commission it, if person A commissioned person B to draw it, and it includes person C’s character, person C should have every right to request it be removed.

@Registered Anon  
@Background Pony #6C22
 
Of course some verification would be needed to be sure that it is in fact the commissioners commission, so what happens if you contact an artist and they say “Yes, that’s their commission, but no, don’t take that down.”  
Is there a situation where the commissioner’s word holds more weight?

@Sour Lemonade  
No, if the artist says it should be removed, then it must also be removed. No matter what the commissioner says.  
And the rule should remain as it is. Only the artist should have the opportunity to be removed images.

No.
 
As long as there’s no clear transfer of copyright (like the commission sheet stating as much, or a scan of a contract the artist will verify), then no; it goes through the artist.
 
@Background Pony #6C22  
I hope you keep your posting as either anon or named here, Rule #10 is a thing. I also suggest you check your favelist for edits, if you despise them so much.
 
And the OP of the edit that caused this thread is probably cackling, given they supposedly DNPed the site over similar edits.

@Sour Lemonade  
I’d say the only situation where they should overrule the artist is if their OC is in the picture.

As someone who has commissioned many pics, I say fuck commissioners. They are not responsible for any of the pics they paid for any more than someone who just requested it and paid nothing. It is, and always has been, the artist who made the pic, and the artist deserves all the credit for it. Just because it was your idea and you paid for it doesn’t mean shit. Commissioners should have absolutely no say in whether or not the pic stays here.
 
If they ask the artist to take it down, and the artist in turn asks the mods, then that’s fine.

According to copyright laws, the copyright for images created as a work-for-hire (such as a commission) remains with the artist unless there was an agreement transferring the copyright to the commissioner. More info.
 
Additionally, the presence of an OC does not affect if the commissioner can request a takedown or not. OCs do not fall under copyright law, but instead trademark law, which requires the OC be a registered trademark.
 
The only time we take down artwork featuring OCs is if the artist requested it, or if the image is being used as a clear attack towards the owner of the OC (Rules #0, #5.1, etc).

@dt  
How pointlessly aggressive.

@Dashu  
are you new here?

@Joey  
Actually you’re incredibly wrong on the subject of OCs. Characters are just as subject to copyright. Case law also supports this as well.
 
Nichols v. Universal Pictures Corp was the first example of that ruling, though that was wrt literary characters.
 
With visually depicted characters the case is even more cut an dry: Hill v. Whalen & Martel ruled in favor of the plaintiff who alleged 2 different characters were carbon coppies of his own.
 
And then Walt Disney Productions v. Air Pirates establishes that characters have copyright outside of their own works, so you cant go about it that way either.
 
So all in all, really owners of OCs should be able to issue takedowns of works their OC appears in as well.
 
Though, I suppose I should note, I think that originates w/ the first pictorial depiction of an OC, so, you better be the first one to draw your OC if you want copyright, or make sure the artist who you commission explicitly transfers copyright to you.
 
You can find more if you’re interested in this scholarly article published on the university of New Hampshire’s school of law site: http://ipmall.info/hosted_resources/IDEA/18.Lalor.pdf

@GyroTech  
I can’t quite find a source for the Hill v. Whalen & Martel case, but the other two legal precedents you bring up create a pretty complete picture themselves. Especially that last one, Walt Disney Productions v. Air Pirates, which seems to pretty clearly indicate that characters can indeed be copywritten.
 
Although that still leaves open the question of fair use/parody, which I suspect is why most companies rely on trademarks instead…
 
We also need to remember that this is all based on US law, and the servers are hosted in Europe somewhere (Germany I think? With backups somewhere else), so the copyright laws may not exactly translate.

@Exedrus  
I hadnt quite considered that angle. Yes, it definitely depends on where the servers are hosted, and which country that host is registered in. (Which may not necessarily be the same) I’d be curious though, and willing to delve into case law to see if that’s also the case there.
 
Though I will say, Id be very surprised if that country wouldnt at least classify things containing that character as a derivative work.

@GyroTech
 
As Exedrus said, the site is based entirely in Europe. The primary server is in France, and the admins are in various countries.
 
I looked up the cases you referenced (though I didn’t find as much info on the third one, at least nothing that’s a summary and not 50+ pages of lawyer language), and it seemed like while the characters were being ripped off, other elements of the story were being ripped off as well. Copyright protection would extend to characters if they cover the “story being told” test: link
 
Another thing to consider too is those cases, the characters were ripped off without permission. That’s not the case when it comes to commissions/requests - if someone asks an artist to draw their OC, then the character is not being infringed - the artist is essentially granted full permission to copy and use the character for that image. And as noted in my earlier link - the copyright of a work for hire remains with the artist unless explicitly transferred.
 
So even if one of those circumstances occur where a character would be subjected to copyright instead of trademark law - no infringement would be occurring - the artist isn’t violating copyright as they had permission to use the OC for the image, and we aren’t violating copyright because the artist has control over the image, not the character’s owner.
 
Of course, in cases of impersonation, where someone claims to own an OC but in reality they don’t - those are extraordinary circumstances, and are judged on a case-by-case basis. It happened the other day - someone commissioned a picture of “their OC”, but then it was found out that the artist was tricked and the person who ordered the commission wasn’t the OC’s owner - we took that image down without request from the artist.

@Joey  
Is the server host company in france as well?
 
And even in cases where the commissioner gives an artist permission to use an OC, unless explicitly stated, that commissioner would have just as much right to how the work containing the OC is distributed, in those cases. Its not about the artist violating copyright in creating the work w/ the OC. Its about the work being displayed in places that dont have permission from all copyright holders involved to be displayed there. Its about derpibooru conflicting with the rights of the OC owner, not the OC owner conflicting with the rights of the artist.
 
And the third one is the most imporant, with Air pirates, as they hadnt even ripped off the story, just the character designs, in order to sell their comics.
 
But you’re right, france, so I’ll go digging there.

So…it would appear that EU copyright law rules that characters have copyright as well, or this article wouldnt be such a big deal: http://www.telegraph.co.uk/culture/4017251/Popeyes-copyright-to-expire-in-January.html However I’m still following up on exact legal cases/laws.

Pony OCs are just bad copyright infringement on Hasbro’s own designs and characters, regardless.
 
We aren’t changing this policy, and if anyone has that big of an issue with an image of a candy-coloured cartoon pony being up they can mail us a DMCA.