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Author Topic: Selling Exclusive Rights to a Microstock Character  (Read 6100 times)

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Leo Blanchette

« on: April 18, 2008, 23:32 »
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I tend to do images in series, and I often get offers "to buy exclusive rights to the character".

I'm wondering, if I ever chose to take someone up on one of these offers, what exactly does this mean for everyone?

For instance, depending on which series is being discussed, hundreds or even thousands of people might hold the typical RF rights to the image. So what does this mean for the guy "purchasing exclusive rights" to the character?

Is such a thing even possible? If not, knowing that would be great to know what to reply to these people.

Leo


« Reply #1 on: April 18, 2008, 23:48 »
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It's not possible to buy exclusive rights to the character if any of the images containing the character has already been sold, and trying to sell the character exclusively "subject to the previous RF licenses" is fraught with peril. I'd tell them sorry but no, and maybe offer to create a variation of the character.

Leo Blanchette

« Reply #2 on: April 18, 2008, 23:56 »
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I love this microstock group more every week! Such an easy and logical answer!

« Reply #3 on: April 19, 2008, 00:42 »
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if I were you I'd explain the situation to them before I reject.I know that wouldn't fully mean exclusivity but  they might still be interested.

« Reply #4 on: April 19, 2008, 07:43 »
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you surely COULD sell it like sokfoto said and just promise to not sell any more of that character... how intereresting that would be for them is unknown.

But Yingyang... I am confused..
How does dreamstime and other sites 'sell the rights' to the image work when there is allready hudreds or thousands of that image sold all ready. ... or is 'selling the rights' different than 'selling it exclusive' as in the new person gets all the rights to sell, use etc. the image in the first case and exclusive means the person is the ONLY one with the use of that image in the second case?

so couldn't blanchette sell the rights to a character?  And wouldn't that be different that selling exclusivity to a character?

Leo Blanchette

« Reply #5 on: April 19, 2008, 07:46 »
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All questions I would love to know! (that is, short of paying big $$$ on a copyright lawyer)

« Reply #6 on: April 19, 2008, 11:43 »
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you surely COULD sell it like sokfoto said and just promise to not sell any more of that character... how intereresting that would be for them is unknown.

But Yingyang... I am confused..
How does dreamstime and other sites 'sell the rights' to the image work when there is allready hudreds or thousands of that image sold all ready. ... or is 'selling the rights' different than 'selling it exclusive' as in the new person gets all the rights to sell, use etc. the image in the first case and exclusive means the person is the ONLY one with the use of that image in the second case?

so couldn't blanchette sell the rights to a character?  And wouldn't that be different that selling exclusivity to a character?

That is what I was referring to when I said:
...and trying to sell the character exclusively "subject to the previous RF licenses" is fraught with peril.
When DT and the others foolishly offer that all the customer is buying is a promise not to sell the image anymore, which is worth absolutely nothing because of the previously licensed images. All you end up with is a pissed off customer that wants to sue someone because their competitor is using the same images (or in this case character) in an advertisement. I handled a case like this and it gets messy quick. To answer your question: DT and the others that offer the fake exclusive purchase are using poor business practices.

If the person wanted to buy exclusive rights to the character in order to resell it, that's a different situation and I don't see a problem with that unless there have been extended licenses sold for that character that allow for resale. But it was my impression that they wanted to buy the character to be the exclusive one to use it, and in that situation I wouldn't do it.

« Reply #7 on: April 19, 2008, 12:24 »
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If you purchase the rights to the image, does that mean you then own the copyright? Meaning you could submit it as your own photo to the stock sites.

« Reply #8 on: April 19, 2008, 13:02 »
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If you purchase the rights to the image, does that mean you then own the copyright? Meaning you could submit it as your own photo to the stock sites.
Depends on how you structure the agreement.

Leo Blanchette

« Reply #9 on: April 19, 2008, 13:43 »
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Very interesting!

I should have given more info -- it would be the case where "we want to own the character" for their own uses, usually having to do with a mascot or the happy overtone the character provides, or the very common request of being able to use it in a logo. Resale has never been mentioned to me.

I would think seeing 200 sold beside a character might clue them in that they will probably see it floating around the internet or Bob's Fish Mart or something, and that the rights don't leave the guys who originally bought it RF.

Its all very confusing!  ;D

« Reply #10 on: April 19, 2008, 19:26 »
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Very interesting!

I should have given more info -- it would be the case where "we want to own the character" for their own uses, usually having to do with a mascot or the happy overtone the character provides, or the very common request of being able to use it in a logo. Resale has never been mentioned to me.

I would think seeing 200 sold beside a character might clue them in that they will probably see it floating around the internet or Bob's Fish Mart or something, and that the rights don't leave the guys who originally bought it RF.

Its all very confusing!  ;D

Unless you sold ELs of the image then the IP rights which the 200 buyers got are very limited. Bob at the Fish Mart can't legally do very much with the image. IMO the 200 dls do not very much diminish the value of the character. 

If your character is, for example, a 3D model it can of course be used to render literally thousands of new images. Think of Lumaxart's gold man. Was it worthless as a character after 200 dls of it were sold?

« Reply #11 on: April 19, 2008, 21:44 »
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Unless you sold ELs of the image then the IP rights which the 200 buyers got are very limited. Bob at the Fish Mart can't legally do very much with the image. IMO the 200 dls do not very much diminish the value of the character. 
I'm going to have to beg to differ on that one. The regular RF license is one of the most extensive commercial licenses in the intellectual property world. There are only a few things "Fish mart" can't do. If you go read the terms of the licenses, which everyone should have already done, you'll see that the licenses are very extensive and the typical one only forbids use on items for resale, resale of the image itself, use in a logo, some seat limitations, and use above some obscene number of prints (250,000 or 500,000). For a comparison go read the license on any software, or the license on music you download .

@Leo - if they're looking to use it as a logo then it would be important to include in the contract the facts that:
 1) the character has been sold before under the RF license (I'd include appendices of the licenses from the sites that the character has been sold before) . I'd have the contract say something to the effect of "...it being known that the Character has been sold previously under the licenses found in Appendix X thru Z..." Character would be a defined term in the contract.

and

2) If you're selling the copyright to them outright then I'd want the contract to include something about the Purchaser "taking subject to" the rights of the previous licenses who licensed images of the character before.

To be frank, the #2 is the reason I said before that this would all be fraught with peril. No intelligent company would buy the image for use as a logo/mascot if they knew it was possible that a competitor could use the character in an attack ad and the company could do nothing about it. Some may think that is unlikely, but it really isn't. All the competitor would have to do is find a designer that had licensed the image previously for a different project and have that designer create a negative ad campaign. That's permissible under all of the RF licenses that I've read as long as the total usage/prints didn't exceed the license.

Seeing the 200 sold beside the character would only give a clue to someone that has read the licenses and fully understood the ramifications. Most people don't read the licenses and don't fully understand them even when they do read them.

I personally wouldn't do it if it was me. However, if you do decide someday to go ahead with it then you should get a lawyer that specializes in IP and make them aware of the fact that the character has been previously licensed under an RF license.

Leo Blanchette

« Reply #12 on: April 19, 2008, 22:03 »
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Thank you for your insights everyone, this has been very helpful.

« Reply #13 on: April 21, 2008, 05:12 »
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You only have 2 options:

1) You sell them a customized version outright that does not conflict with your collection.
(If you do not do a customized version it will degrade the total value of your overall collection and make outright sale in the future near impossible unless the purchasing company really enjoys legal hassles)

I have turned down 2 offers in the last year in the 6 figure range to protect the value of my complete collection.

Or the best option:

2)You sell them a character endorsement license.
(My current fee for these is $3k usd for each "endorsement" image)
If the character is shown with trade dressing of the company or logo it still needs your copyright ident for the character.They are not allowed to legally try to tie your character with their trade dress or logo but can display it in association with the proper copyright credit.
Making your character image a "spokesman" for their company.

Leo Blanchette

« Reply #14 on: April 21, 2008, 08:26 »
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LuMaxArt! From the King of Microstock Characters himself! Thanks a lot man!

I'm glad I posted here -- my main reason for asking was possibly selling the below character, which I'm getting inquiries on sooner than I anticipated. But with the above info, its good to know that not only will I be able to retain this character, but it should not be hard to make a fair spin-off, which is different enough and yet still accomodates the customer's needs.

This is probably the most insightful thread on microstock legal matters I've ever seen. Much appreciated guys!





 

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