Preface (tangentially related)
DisAgreement 1: The Devil in Details

____________

When the shit hit the fan last summer, few people would have made the leap to associating it with the Submission Agreement. I, myself, had defended the administration's take on the Submission Agreement last Spring.

But in the throes of unrest, I was forced to give it another good long look, and without all the positive assumptions I had made the first time around.

That is, you can read the Agreement as if it's made with a friendly party, or you can read it as if it's made with an unknown or indifferent party (for instance, if DA were to be sold, or if DA were to teeter on the brink of collapse and have no choice but to sell out).

And it reads very differently when those assumptions change.

My #1 horror was to grasp that it was a miserable stubborn beartrap to try to remove one's art from, based on the following fundamental arrangement (emphasis mine):

"1 Term. The term ("Term") of this Agreement starts on the date that the Artist Materials are initially uploaded to any deviantART Site(s) and continues until either Artist or deviantART terminates this Agreement in writing, with or without cause or by the removal of Artist Materials for the purpose of termination. To the extent this Agreement is terminated by Artist, the rights granted in this Agreement will terminate only after Artist has removed all of Artist's Materials from the deviantART Site(s), and deviantART has received notice of the removal. If this Agreement is terminated by deviantART, this Agreement will terminate when deviantART removes Artist's materials from the deviantART website. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship."

Now, this is a disaster for a number of reasons, as we'll visit below. It's too vague, unnecessarily demanding, potentially self-defeating for the artist, and counter-intuitive to what an art site should offer as a service.


First and foremost, "Artist Materials" is far too hazily defined. Deviations? Surely. But what about webcams, or off-site images featured in journals? What about journals themselves? News stories we've written? And, of course, most maddening of all, what about comments, which we (famously) cannot remove?

3.g. defines "Artists Materials" by "As used in this Agreement, the term 'Artist Materials' means any content uploaded to the deviantART Site(s) which may include without limitation Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, liner notes, and other graphical or textual materials and any and all "skins," computer-generated images or other artwork or images that Artist submits to deviantART."

So if I comment on someone else's work, and tell a story from my own life, does that count as a "biographical material?" Which I cannot remove?

In other words, 3g just complicates the question, of when or not the condition of "removing all Artists Materials" is met. It certainly implies that Artist's Materials are not just Deviations.

Now keep in mind that in any legal conflict, vaguary is going to benefit the side with the deepest pockets. Oh, except that you're going to be paying their legal bills anyway (per 9. Indemnity).

So, there was a relatively simple way to fix that, and last summer, I realized its importance.

There needs to be an Individual Removal Clause.

That is, termination of the whole Agreement could rest upon the conditions above, but it should specifically state that the Agreement pertains to any Artist's Materials that remain on the site, during its duration on the site. (Not on its servers, mind you, if for no other reason than the Artist can neither control nor verify that.)

Keep in mind that we're measuring this Agreement not by any trust or distrust of DA itself, but by simply the black and white that any potential company could use against us.

And keep in mind, too, that if DA were ever to be sold, you could be sure we wouldn't hear about it until it's too late.

If Rupert Murdoch buys deviantART, I want to remove whichever pieces I'd like to keep from his media empire. It should be that simple, and that immediate. But the Termination clause hedges against that. It mires our art in molasses.

An Individual Removal Clause would be the perfect loophole in the Artist's favor. Regarding the art itself, it would overcome the vaguary to the artist's benefit.

And it shouldn't cost DA a penny to let me do that.

The suggestion that I should have to delete all my journals in order to "rescue" my art is ridiculous. Why not fix that?



But, beyond that, this modification would have a usefulness more broadly than just backdooring around the haziness and debunking conspiracy theories.

For instance, say some ad agency wants to purchase an image of mine for widespread use in one of their campaigns. Their lawyer would be completely reasonable to ask, "Does anyone else have any rights to this?"

Without having achieved complete termination of the Agreement, as it stands, he wouldn't like my answer. Which might not only cost me the sale, but therefore diminish the value of my work.

It's plain as day that I shouldn't have to completely remove myself from deviantART to maintain the value of any individual piece of my work.

Not only that, it's counter-intuitive.

deviantART is here to host US. It is (allegedly) not here to gather up rights for as much art as it possibly can.

(Kinda makes you wonder about the business plan and asset statements, doesn't it?)

(If DA was teetering from cashflow problems, do you think someone else would buy them for their hardware?)

The Agreement with a website for hosting art should be dick-simple. "You've got rights to do with while it's here, you don't have those rights if I take it away." There shouldn't be any en masse quality to this arrangement.

But that's not how the Agreement is written, or Termination defined.

Removing work from the arrangement should be as simple as the Remove function. No "notice in writing" (for which email or electronic communcation is specifically excluded by 15c. Notice). No "I gotta erase my whole DA artistic existence to break loose a piece of my art."

But now, before anyone accuses me of over-reacting, there's another dimension to this.

None of the above is new thinking.



The Individual Removal Clause was my highest priority from as soon as I bothered to care.

To me, "Submission Agreement revision" and "adding the Individual Removal Clause" were virtually synonymous right from the start. I didn't bring up the former as a topic without bringing up the latter.

In discussions with Angelo and Richard, the Individual Removal Clause was my persistent theme and priority of revising the Submission Agreement. Neither of them indicated any problem with that. And I mentioned this over and over.

So then, when Richard posted the draft in December, there was no sign of any such clause. So I spoke up again (in public this time), not in any combative way, but as a reminder that this issue was very important.

`mp3chuck raised the same issue too, to which Richard responded

"Well, it works for what you have up, so if you fully want to opt out of it, it would mean you have to remove all your deviations. But it also does work on a per deviation basis, meaning once that image is removed it is no longer available by anyone to use."

Except that there's no language whatsoever to suggest that. It's a benign but groundless interpretation.

So, more urgently, I wrote an email to both Angelo and Richard, with the attitude of, "um, guys? We're forgetting something..." I made very clear that this would be a failure of the whole process, and that there's no way I could possibly endorse this Agreement as a significant improvement or concession to the community without that clause.

You'll notice Richard didn't reply to my public comment. (You can learn a lot by watching which he picks and chooses.)

And I certainly never got a reply to my email, from either party.

I dug in with a tentative optimism, hopeful that such a valid point couldn't be lost upon them, and they hopefully would surely not pass up an opportunity to do everyone right. I waited patiently to see them live up to it.

Until this new Agreement has been released. And they haven't.



My point is to suggest there's an even more disquieting implication here.

Bad enough that it suggests an unwelcome implication of their business plan and asset statements, that they have no room to codify such a basic right.

Bad enough that the lawyers don't seem to have been tasked with protecting artists at all.

But even worse?



To Be Concluded...



____________

If you'd like to pimp [link] go ahead - this series should be the most important assessment I've ever written.