You may link or propogate this journal as you please, or, preferably, propogate the generic /journal/ link, in anticipation of tomorrow.
Tomorrow evening, I will propose a plan to solve the unrest at deviantART once and for all.
It will intend to be realistic by neither demanding Scott's return, nor demanding Angelo's removal. But it will very specifically set out to restore TRUST to deviantART, and therefore allow all of us to get back to "business as usual," and for DA to once again live up to its full promise to the history of art itself.
As fair warning, yes, I will suggest tomorrow that artists hide (all or most of) their galleries for one finite week
as a show of solidarity for our efforts to restore deviantART. It will be helpful as pressure to management that we want TRUST back
if we're to return to "business as usual." And that they are not going to profit from those of us concerned unless we get it.
People have challenged the value of the withholding tactic (understandably, I think), but the point will be for each artist, and especially each high-profile artist,
to assert the value of their own work, and the importance of returning TRUST to this community. When we take our art down, we impose the implication (real or imagined) that it will not come back unless this situation is resolved. When we take our art down, we illustrate the potential value of deviantART without our art in it.
We will share the proposal tomorrow, and what each of us will be able to contribute to restoring deviantART to its full potential.
But for now, let's review why TRUST is so important, and why it's now in question.
1. We have all witnessed the removal of a critical founder
of deviantART from day-to-day administration of this site, and we have all witnessed that it was handled very shabbily, from a business standpoint (not even a press release?), a moral standpoint (was that the best they could do?), and a leadership standpoint (that they made no concessions whatsoever
to restore peace to our community?) We currently have no reason to give management the benefit of the doubt.
2. Evidence and informed speculation indicate underhanded practices and tactics
in the conduct of deviantART management. Follow these links for an overview of available evidence
(a compilation by `killjoy
), a specific methodology
(a study by ~nsfbr
), and a frightening implication
(in a comment by ~theseus
3. If a founder of this site was treated so badly, in effect having his own artistic creation stolen from him, then there's no reason to believe that we
would be treated any better, were it to management's disadvantage to do so. Furthermore, current management is not operating with transparency about their plans and motivations, but completely the opposite.
4. We all enter ourselves and our art into a legal relationship with deviantART whenever we submit work within the scope of the Submission Agreement. This Agreement is completely plausible and acceptable within the scope of good faith, i.e., "no reason to doubt management," but alongside evidence of evident greed and self-interest, it becomes instead a very dangerous document to those of us who value our work (and to those of us who admire
those who value their work).
This Agreement is essential to deviantART providing the experience we all love. I'm not questioning either its importance or the rights we grant DA when we submit. In fact, I "went to bat for it" personally when it came under some scrutiny this Spring, arguing for its merits as a "good faith" arrangement.
But now, I'm suggesting that without TRUST, deviantART's legal agreement will not be able to keep or attract artists who recognize value in their own work, and therefore the whole experience will be become a pale shadow of what we've once known and loved.
And worth noting, I'm about done talking here at DA. My wrists are killing me like they haven't in months, my art, research, and personal life are neglected, and even I
get sick of listening to myself talk. I want this mess over with,
as I'm sure every single person at this site
wants, so tomorrow, we'll propose the only plan that could possibly work
without waiting years for salvation from the courts, or waiting for someone
to radically transform into a competely different kind of individual.
But for tonight, I'll let the Submission Agreement itself do most of the talking, about why TRUST matters so much to deviantART.
Emphasis added by me. (If you notice something else, I'll revise to emphasize your concerns as well.) Bolding for general points of interest, italics for specific nuances of interest within them, and a *** notation for direction to one curious footnote
at the end. (Don't miss that.)
It's not my intention that every emphasis indicates a point of concern. It's that every emphasis begs interesting questions,
even IF only to those of us who don't grasp legal language.
Since the "plain English" Introduction/Summary cannot override any statements in the Agreement itself, and generally only represents the most optimistic interpretation of the Agreement, it is omitted here, but can be read here
, if you want their overview of the broad strokes.
So, let's look at "the deal with the devil."
This agreement ("Agreement") is a legal agreement between you, either an individual artist or the legal authorized representative of a group artist ("Artist"), and deviantART Inc., a California limited liability company ("deviantART"), regarding uploading certain of Artist's audio, visual, audiovisual and other materials (the "Artist Materials" defined below) to the deviantART.com website or any successor(s) thereto
and/or assigns thereof (the "deviantART Site(s)") and deviantART's use of such materials. If Artist is agreeing on behalf of a group artist or a group of artists to be bound by the terms of this Agreement, each reference to "Artist" in this Agreement refers to each member of the group or the group as a whole, as applicable. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree (and ratify past submissions) as follows:
1 Term. The term ("Term") of this Agreement shall commence on the date that the "Artist Materials" (defined below) are initially uploaded to any deviantART Site(s) and shall continue thereafter until either Artist or deviantART terminates this Agreement in writing, with or without cause. To the extent this Agreement is terminated by Artist, the rights granted hereunder shall terminate *** only after Artist has removed all of Artist's Materials from the deviantART Site(s), *** and deviantART has received notice of such removal.
If this Agreement is terminated by deviantART, this Agreement will terminate upon deviantART's removal of Artist's materials from the deviantART website. In connection with any such termination of this Agreement, the parties agree to cooperate in providing an orderly termination of their relations.
2 Ownership. Artist shall at all times retain all right, title and interest in and to the Artist Materials provided by Artist hereunder (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to deviantART under this Agreement. Artist is free to grant similar rights to others during and after the Term of this Agreement. For the avoidance of doubt, when Artist uploads Artist Materials to the deviantART Site(s), Artist acknowledges that third parties may use the Artist Materials as described herein.
3 License. to Use Artist Materials. Artist hereby grants to deviantART a worldwide, royalty-free, non-exclusive license to do the following things
during the Term:
a to prepare and encode Artist Materials, or any portion thereof for digital transmission, manipulation and exhibition in any format and by any means now known or hereafter devised
b to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital), and electronically publish any or all of the Artist Materials
, including any portion thereof, and to include them in compilations for such purposes, by any and all means and media now known or hereafter devised
(for avoidance of doubt, the rights granted to deviantART hereunder include the rights to make Artist Materials available on deviantART Site(s), third-party websites and electronic devices)
c to modify, adapt, change or otherwise alter the Artist Materials (e.g., change the size) and use the Artist Materials as described in Section 3(b); and
d the right to sublicense to any third party any of the foregoing rights
in the Artist Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.
e Artist hereby disclaims any and all right, title, or interest in any and all material with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated. As used in this Agreement, the term "Artist Materials" means Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, liner notes, and other graphical or textual materials that Artist uploads to deviantART, and any and all "skins," computer-generated images or other artwork or images that Artist submits to deviantART.
4 Name and Likeness. Artist hereby grants to deviantART:
a a perpetual, worldwide, royalty-free, non-exclusive license to use Artist's name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials
, and the deviantART Site(s)as described hereunder, during the Term;
b Artist also agrees not to assert any privacy, publicity, moral or similar rights held by Artist (and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Artist Materials, Artist agrees that such persons shall not assert of any privacy, publicity, moral or similar rights) under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder; and,
c To the extent that the Artist Materials contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Artist hereby grants to deviantART a perpetual, worldwide, royalty-free, non-exclusive license to use the foregoing in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials, as described hereunder, during the Term.
5 Payment Unless otherwise agreed between Artist and deviantART in a writing signed by both parties, the license granted to deviantART pursuant to this Agreement shall be royalty-free.
6 Representations and Warranties. Artist represents and warrants that:
a Artist has the full right and power to enter into and perform this Agreement and to grant deviantART all rights to use the Artist Materials as contemplated in this Agreement, including, without limitation, the license grants in Sections 3 and 4,
b Artist has secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for Artist to enter into and perform this Agreement and to grant deviantART all rights to use the Artist Materials as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Artist Materials),
c the Artist Materials (and deviantART's use thereof as contemplated under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
d all information that Artist has provided or will provide to deviantART is true and complete,
e the Artist Materials do not and will not violate any law, statute, ordinance or regulation,
f the Artist Materials do not and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
g the Artist Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of deviantART or any third party, and
h if Artist or any member of Artist's group is a minor, Artist hereby warrants that Artist has the legal right to execute this Agreement on behalf of the minor artist and guarantee such person's performance of the terms of this Agreement. These warranties shall survive any termination of this Agreement.
7 Third Party Payments. Artist shall be responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Artist Materials.
8 Indemnity. Artist agrees to defend, indemnify, reimburse and hold deviantART and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney's fees, costs and expenses and court costs)
arising out of or related to:
a Artist's use of the deviantART Site(s);
b any breach or alleged breach of Artist's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions hereof
c Artist's violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of Artist Materials as contemplated hereunder.
9 deviantART's Performance. Artist acknowledges and agrees that the operation of the deviantART Site(s) may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and deviantART shall not be responsible to Artist or others for any such interruptions, errors or problems or an outright discontinuance of the deviantART service. There are no assurances whatsoever that any of the Artist Materials or any part or element thereof shall actually be utilized on the deviantART Site or if so utilized continue to be available for any particular time. deviantART has the right, in deviantART's sole and absolute discretion, to remove from the deviantART Site(s) at any time the Artist Materials or any part thereof and/or to revoke any sublicense granted by deviantART to any affiliate or unaffiliated third party. Notwithstanding the foregoing, deviantART does not control the content of the Artist Materials and does not have any obligation to monitor such content for any purpose. Artist acknowledges that Artist is solely responsible for all content submitted to the deviantART Site(s). The deviantART Site may be discontinued at any time, with or without reason.
10 No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVIANTART DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
a UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE DEVIANTART SITE, AND
b IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE DEVIANTART SITE AND ANY SERVICES PROVIDED BY DEVIANTART HEREUNDER. IN ADDITION, ALTHOUGH DEVIANTART INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE DEVIANTART SITE(S), AND WHETHER OR NOT DEVIANTART IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, DEVIANTART DOES NOT WARRANT THAT THE DEVIANTART SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DEVIANTART SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
11 No Liability for Third Party Use. DEVIANTART DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE ARTIST MATERIALS MADE AVAILABLE ON THE DEVIANTART WEBSITE BY THE ARTIST PURSUANT TO THE TERMS OF THIS AGREEMENT.
ARTIST SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF ARTIST MATERIALS BY A THIRD-PARTY, AND NOT FROM DEVIANTART. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS ARTIST MATERIALS FROM DEVIANTART (WHETHER OR NOT WITH DEVIANTART'S PERMISSION)
, AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED HEREUNDERARTIST WILL SEEK REDRESS FROM THE OTHER PERSON AND NOT FROM DEVIANTART, AND THAT ARTIST WILL NOT HOLD DEVIANTART RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
12 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE)
SHALL DEVIANTART, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY
AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT DEVIANT ART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE
, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE DEVIANTART SITE(S). IN NO EVENT SHALL DEVIANTART'S TOTAL LIABILITY TO ARTIST UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5.
THE PARTIES ACKNOWLEDGE AND AGREE THAT DEVIANTART HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN ARTIST AND DEVIANTART, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
13 Copyright and Trademark Notices. deviantART, the deviantART logos and mascots, and the layout and design of the deviantART Site(s), among other marks that may appear on the deviantART Site(s) are trademarks of deviantART Inc., LLC (the "deviantART Marks"). Other trademarks and service marks on the deviantART Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Artist may not use any of the deviantART Marks without deviantART's prior written permission, and Artist may not use any third-party marks without the third party's prior written permission.
a Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION'S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN LOS ANGELES, CALIFORNIA, AND ARTIST AND DEVIANTART BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
b Assignment. deviantART shall have the right to assign this Agreement in whole or in part to any person or business entity. Artist may not assign Artist's rights or delegate Artist's obligations under this Agreement without the prior written consent of deviantART.
c Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing
and sent to deviantART Inc., LLC, PSC 473 Box 127, FPO AP, 96349-1800, ATTN: Legal Department. Communications shall be deemed received:
i for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt or refusal as indicated on the return receipt;
ii for Communications sent by personal delivery, on the date of personal delivery; and
iii for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt.
-No other form of notice shall be accepted under this Agreement.
d Entire Agreement. This Agreement sets forth the entire understanding and agreement of Artist and deviantART as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
e Modification. deviantART reserves the right to amend the terms of this Agreement from time to time in its sole discretion. deviantART shall notify Artist of any material changes to this Agreement by sending an email to the address listed in Artist's account. If Artist continues to upload Artist materials after being notified of the changes to the Agreement, Artist will be deemed to have accepted those changes and the new terms of the Agreement shall govern all prior and future submissions of Artist Materials. If Artist does not accept the new terms of the Agreement, Artist's sole and exclusive remedy shall be to terminate this Agreement. Otherwise, this Agreement may be changed only by a writing signed by both parties that specifically refers to the parties' intent to amend this Agreement.
f Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, and 14 shall survive any termination of this Agreement. In addition, any sublicenses granted to third parties for the display of Artist Materials on electronic devices pursuant to Section 3 shall survive any termination of this Agreement
__________________*** Important observation?
There's only one curious point I feel a need to add.
Sunday, while looking into the submission process and the Agreement within it, I uploaded a "test" deviation, not a finished piece of art but just an Ashley photo I'd been working on. Just for the hell of it, I called it "The Day Behind Me."
I uploaded it, and then deleted it immediately. According to the conditions above (way up there in Section 1), "the rights granted hereunder shall terminate only after Artist has removed all of Artist's Materials from the deviantART Site(s)..."
So, what would it mean if I couldn't
delete it from the site? If the mechanism didn't effectively do that?
So here, take a look, at that deleted deviation
. Notice the URL.
So I don't know, does that count as removed from the site
or not?More tomorrow...
If you wish to link anyone else to here, please use my generic Journal link
so that they'll always come find the latest entries (and five in a row, of course). Most will stay "on topic."
8/06: The Phantom Menace
8/03: The Open Letter to Administrators
8/02: DA is Under PROBE-ation
8/01: A Plan for Action</i>
7/29: The Minimum Standard