deviantART Does Not Sell Art to Third Parties

Alright... I'm kinda seeing a certain issue rise up and whatnot, so I suppose it's best that I give you my two cents on this topic.

Why This Came Up

I'm guessing sometime today, a comment on rismo's work My Neighbor Jake (which earned a Daily Deviation a while ago). The comment leads to this Hot Topic website, where they advertise a product containing the artist's work.

Of course, I wouldn't have noticed this myself. It got diffused via a post on Tumblr, a blogging website. You can find the post here. Basically, the post claims that deviantART was responsible for this, stating that rismo's art was sold to Hot Topic.

The post and journals about the post seem to be going viral and now havoc is reigning, stating that everyone should protect their work with watermarks so deviantART doesn't sell them. Or ultimately leave deviantART to avoid this all together.

What is Fact

First and foremost, deviantART does not sell your art to third parties. What deviantART can do is make works based on your art, but they cannot sell it to third parties.

Secondly, no matter where you post your artwork, anything published and visible on the internet is prone to receiving the same kind of "art theft". It's inevitable because that's just how the internet works.

Finally, the artwork that rismo made is considered fan art (unless he actually does have the license).

Technical Explanation

Here, I'll be explaining stuff based on what I've read and from my basic knowledge of Copyright laws (in the United States, of course).

First of all... The tumblr post isn't technically accurate when referencing dA. I guess we're talking about Term 16 under Section 2 of the deviantART Terms of Service. The Terms of Service is your contract you make with deviantART regarding all your works, not the Submission Policy. The Submission Policy is just an Agreement making a free use license readily available for deviantART to use, also restating the terms dictated by the Terms of Service. Let's look at Term 16 from the Terms of Service.

"deviantART does not claim ownership rights in Your Content. For the sole purpose of enabling us to make your Content available through the Service, you grant to deviantART a non-exclusive, royalty-free license to reproduce, distribute, re-format, store, prepare derivative works based on, and publicly display and perform Your Content."

The first part of the term means that you are responsible for your own Copyrighted works because they are yours. However, because you're posting them on deviantART (for free), then you're giving deviantART permission to use your work for stuff, like selling it and making derivative works (stuff based upon your work). Sections 3, 4, and 6 in the Submission Policy is also a reminder of this part of term.

"Please note that when you upload Content, third parties will be able to copy, distribute and display your Content using readily available tools on their computers for this purpose although other than by linking to your Content on deviantART any use by a third party of your Content could violate paragraph 4 of these Terms and Conditions unless the third party receives permission from you by license."

The second part (the entire bold area) means that third parties will also be able to copy, sell, or make new stuff from your work, but that only is "legal" if they got permission from you, being the Copyright holder (aka owner). Section 8 in the Submission Policy is your reminder of this, not Section 6.

Soo... in other words... deviantART didn't sell art to Hot Topic because they can't do that. Of course, deviantART themselves can make t-shirts of your art because before you created the account, you agreed to let them do just that (in the Terms of Service. It was Hot Topic that took the artwork of the one artist instead.

Let's say this... I can see your original character on deviantART. (When I mean by original character, I mean a character you made that doesn't come from a fandom.) If I wanted to, I can download the picture and make coffee mugs with your character. If I sell them without your permission, then I'm stealing your work. deviantART says if I steal your work, then you must be the one to sue me for it. deviantART had nothing to do with the stealing, I did. That's what Hot Topic did. They stole the work because they can download it just like I can download the picture of your original character. deviantART had nothing to do with the stealing... Hot Topic did.

Now here's a catch when it comes to FAN ART. Fan art is considered an unlicensed, derivative work. As such, you do not own whatever you create for fan art because you do not own the copyright of what you created fan art for or requested permission from the owner.

The tumblr post shows that the fan art is from Adventure Time, which is created by Pendleton Ward. As such, only Pendleton Ward and his licensors (the people he gave permission to) can create derivative works (basically EVERYTHING related to Adventure Time). Unless rismo actually has the paper license (the permission) from Pendleton Ward, he does not own any elements of Adventure Time in his work. rismo appropriately categorize his work as Fan Art, stating that he doesn't have an actual license (unless he just categorized it that way). Unfortunately, that means if some else decides to use his work, he can't do anything about it because he doesn't own the copyright to that work (as it's fan art).

Summarizing

Hot Topic was the one to "steal" rismo's work. deviantART did not sell it. However, if rismo doesn't have the license to this artwork, he really can't do anything about it. If he does, then he can sue Hot Topic for selling the artwork as a t-shirt design without permission. That situation is for him to take care of, not us.

Being paranoid if "art theft" is natural. It's disappointing when it happens, but it does. The internet is unregulated and this kind of thing happens all the time because of it. Actually, your avatar could also be considered a copyright infringement on its own. So in that case, be prepared to these things and don't get swayed by a popular rumor. Evaluate the rules yourself and take any appropriate action taking in account the rules and not the rumor.

Lessons to be learned:
== Go copyright your original character (not fandom character) now if you're paranoid of art theft.
== Carefully read the Terms of Agreement to everything you get into.

And that's my very long journal about it, all in a logical way of thinking. I'm not a lawyer, but I do know how to read the small letters. If you have anything to add, go ahead and say so in the comments.

This is Gold N signing out!