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cornwall
12-18-2016, 05:11 AM
Several months ago I was commissioned to paint a pet in pastels. A mutual agreement for 50% deposit to be paid beforehand was agreed. I completed the painting to the best of my abilities within the agreed timescale. Unfortunately the customer was not satisfied with the work and made it very clear they did not want the painting. I have since put this painting up for sale. I have now had an e-mail from them stating that as I have put the painting up for sale they are legally entitled to the return of their deposit. Where do I stand legally on this matter, I would appreciate any feedback, Thanks Mark

DAK723
12-18-2016, 11:09 AM
I would ask a lawyer in your country. Things may be different in different places. Was there a written contract? That may make a big difference.

Don

indraneel
12-18-2016, 12:49 PM
Your website does not specify any terms. Unless the photo reference was also taken by you, I would definitely NOT put it up on the website. And if the subject is uniquely identifiable, NOT sell the painting. Pretty sure lawyer fees will be more than the cost of the painting.

It may make a nice gift, maybe even to a charity (and the pet owner might not even have any objection to the latter, even if the charity sells it).

cornwall
12-18-2016, 02:34 PM
Your website does not specify any terms. Unless the photo reference was also taken by you, I would definitely NOT put it up on the website. And if the subject is uniquely identifiable, NOT sell the painting. Pretty sure lawyer fees will be more than the cost of the painting.

It may make a nice gift, maybe even to a charity (and the pet owner might not even have any objection to the latter, even if the charity sells it).
Surely as artists the reason we take the deposit is cover our costs and time, if the client does not want the finished artwork the artist should be free to do with it whatever they wish.

robertsloan2
12-18-2016, 06:22 PM
Don't return the deposit. That should have been understood from the beginning, that you'd keep that if they cancel the project.

If they're really upset, rework the painting, change the markings or fur type or something to break the likeness.

DAK723
12-18-2016, 06:28 PM
Not a legal reply, but if you do sell the painting to someone else, then it might be a good idea to return the deposit - whether you legally are required or not. After all, if you sell the painting, you will then have essentially made 1 1/2 sales. The 1/2 sale can then be returned. If would not be worth the hassle and the negative publicity not to.

Don

robertsloan2
12-18-2016, 07:01 PM
True, that is a point.

cornwall
12-19-2016, 10:07 AM
Not a legal reply, but if you do sell the painting to someone else, then it might be a good idea to return the deposit - whether you legally are required or not. After all, if you sell the painting, you will then have essentially made 1 1/2 sales. The 1/2 sale can then be returned. If would not be worth the hassle and the negative publicity not to.

Don
Thank you for your advice, I put the painting for sale at the remaining balance, so would not actually make 1 and half sales, the painting is probably not going to sell as nobody wants a painting of some elses dog, surely then I would not be required to return the deposit. Thanks Mark

stapeliad
12-19-2016, 11:39 AM
Non-refundable deposit. You put in the work for it.
I'm sorry your client is such a grouch.

indraneel
12-19-2016, 12:28 PM
Surely as artists the reason we take the deposit is cover our costs and time, if the client does not want the finished artwork the artist should be free to do with it whatever they wish.

That would be true if the artwork is not an identifiable derivative of some one else's photograph or likeness outside the public domain. One can argue that the pet was photographed publicly by you, but was that really the case here?

If the pet owner could identify the painting on the website then you are already on shaky ground. Do you have a model release?

The issue is not about the painting, it's about copyright and privacy of the source material. Would a wedding photographer freely sell photos of someone's wedding to another without a bulletproof contract?

cornwall
12-19-2016, 01:03 PM
That would be true if the artwork is not an identifiable derivative of some one else's photograph or likeness outside the public domain. One can argue that the pet was photographed publicly by you, but was that really the case here?

If the pet owner could identify the painting on the website then you are already on shaky ground. Do you have a model release?

The issue is not about the painting, it's about copyright and privacy of the source material. Would a wedding photographer freely sell photos of someone's wedding to another without a bulletproof contract?
The painting was from the owners photograph, but they did not want the painting saying that it beared absolutely no resemblance to their pet even saying it looked a different colour and breed. So I do not see the client has a case to make. I have also not mentioned the pet or owners name anywhere.

cornwall
12-19-2016, 01:05 PM
The painting was from the owners photograph, but they did not want the painting saying that it beared absolutely no resemblance to their pet even saying it looked a different colour and breed. So I do not see the client has a case to make. I have also not mentioned the pet or owners name anywhere. Sorry, what is a model release?.

~JMW~
12-19-2016, 02:15 PM
For next time-
When making the original agreement - clearly state deposit is not refundable... best in writing & both parties sign off on that..

maybe add something about if buyer is not happy when painting is done , option for a rework - it they can show /explain what they dislike...

Commissions are very tricky as buyer has a vision in their head, and if your work does not fit that, they won't be happy..

DAK723
12-19-2016, 09:34 PM
Again, it is important to note that copyright laws are different in different countries, so if it is possible to get some legal council in your area, it might be worth it.

The only issue I see (from a non-legal viewpoint) is that the photo was taken by the client. Whether legally necessary or not, it is usually the artist's responsibility to get the photographers permission before selling a work based on their photo. This is why we have the reference library here on WC - and why other sites exist - where photographers have donated photos for artists to use with their permission.

As other have mentioned, a written contract is a good idea for all commissions covering any deposits, whether satisfaction is guaranteed or not, what you can do with the work if the client decides not to buy it.

Don

robertsloan2
12-19-2016, 10:13 PM
Yeah. It can be rough when things aren't spelled out.

indraneel
12-20-2016, 12:13 AM
The painting was from the owners photograph, but they did not want the painting saying that it beared absolutely no resemblance to their pet even saying it looked a different colour and breed. So I do not see the client has a case to make. I have also not mentioned the pet or owners name anywhere.

This pet owner seems to be only unhappy and is probably just bad news. Maybe ask if it will make him/her happy if you refund the deposit after the painting sells...? If not, then maybe wait a while before putting it up for sale... Typically, a non refundable deposit is supposed to cover expenses, but not profit. So, even if the painting sells and you refund the deposit, you make a profit, while the pet owner gets nothing.... not fair.

A model release states what you can or can not do with a copy of the likeness of the model (the pet). However, here it would be the likeness to the photograph, since the owner already denies likeness to the pet.

The pet owner does have reason to be unhappy. He/she provided a photograph and paid a deposit and received nothing in return. Unhappiness might be even more if the pet was dead. You have to make a living, but this is a sensitive issue. Shouldn't a customer be happy? But then again, not every customer will be happy.

Grinner
12-30-2016, 10:22 AM
Three things: 1) I'm sorry it didn't work out.
2) If it is not already clear, from now forward have your clients sign something noting that the 50% deposit is NON-REFUNDABLE. You are putting in time and effort, and they are investing in that. This enables you to do the work of the painting. The other 50% is about them liking it, and if they do, you get that payment and they get the painting. If not, you both go your separate ways. But that first 50% is not up for debate if they have already signed an agreement that they should not expect it back.

3) Only work from your own photographs if the subject is alive. Selling something that you painted based on anyone else's source material is problematic, and you can get yourself in legal trouble for doing so. Also, for practical purposes, other people's photos can be really crappy! Poor lighting, distortion, etc. Taking your own photos allows you to compose as well as take shots from multiple angles to use as reference so you can get to know the subject better presuming you will not be working from life.

Best wishes as you move forward with future commissions!