A Terms of Service document is an important tool for any artist. Typically when we think about artists’ tools, we think of things like pencil and paper, computers or tablets, or other “tools of the trade”. A TOS is no less important and can save the artist a lot of headache in a variety of situations. Yet many artists either don’t have one, or may not even be sure what a TOS is. I’m going to talk a bit about what a TOS is (and isn’t), why you should have one, and how to set up your own.

Disclaimer: I’m certainly not a lawyer, and this isn’t legal advice. A TOS is also not a legal document. If you did end up in court, it’s probably better than nothing. But the chances of this happening in the context of furry art are pretty slim. ¹ Nevertheless, it’s still helpful in resolving disputes since it outlines the process and removes ambiguity.

Before we get started, here’s a link to an example of my own TOS. I don’t claim a copyright on any of it, so feel free to borrow lines or paragraphs if they suit your own needs. You can also use it to follow along when I talk more about each section, below.

What is a TOS?

A TOS is a list of guidelines on how you conduct business. This may seem trivial. “How hard can it be? A friend gives me money and I draw a picture for them.” And while that may work just fine for close friends, the farther removed someone is from your personal social circle, the more chances there are for misunderstanding—or deliberate abuse.

Why should you have a TOS?

I believe so many artists work without a TOS because they do get their start by doing work for friends. Disagreements or misunderstandings can be worked out amicably. But this isn’t always possible once you start working for strangers, and the social dynamics always change once there’s money involved. It’s easy to make the transition from friends to soliciting business online from people who don’t know you personally. A TOS helps mediate this process.

Another way of looking at a TOS is that it establishes guidelines outside of yourself. It can be difficult to tell a client, “No, I don’t really want to do that”, especially if you’ve already agreed to take a commission.² But if you have a document that says you won’t do something, it acts as an appeal to a higher authority—even if it’s a document you wrote yourself. People are much less likely to argue the point if it already exists in writing.

It also makes the process seem less arbitrary. Rather than “just deciding” you don’t want to do something, a TOS feels more like something you’ve thought about, and people are more likely to respect that. Much of my TOS exists because of people going, “well you didn’t say I can’t do it”. There’s always someone who will do anything they can think of to take advantage of you, just because you didn’t say they couldn’t.³

How to create your own TOS

I’ll model this section after my own. There’s no right or wrong way of doing it, and many templates exist online. Mostly it just comes down writing a list of guidelines or rules about how you do your work. My advice is to include each of these sections (if its relevant to your practice) and answer the questions in your own words. In a sense, a TOS is like a list of Frequently Asked Questions about your business, except you’re just telling people how things will be done, rather than waiting for them to ask about it.

Overview

Start with a broad overview of how the commissioning process works. How should they contact you (email, website, Google docs form, etc)? How will they pay? How will the art be delivered? This can also act as a sort of outline of things to expand on later in the document. I also find it useful to include the line “By purchasing a commission, you agree to the following:” before outlining the rest of the document. Again, it’s not necessarily a legal defense, but it helps manage expectations.

If you specialize in something, or don’t want to draw certain things, also list what are you willing to draw, or what subject matter you won’t draw. It may also be helpful to include a catch-all statement such as “I reserve the right to refuse a commission for any reason, or without stating a reason.” I’ve found some people feel they are owed an explanation as to why you won’t work for them. You don’t. Stating so explicitly in the TOS may save you the hassle of being pulled into an argument about it later.

Permissions

It’s common for someone to want to include someone else’s character, or to get a friend art as a birthday gift or for other occasions. How will you handle this?

It sometimes happens that someone claims to have permission to use a character when they don’t. If you don’t know the people involved, there may not be a good way to determine this. It can largely be a matter of using your own judgement. And unfortunately if you are caught in the middle of a transaction where proper permission wasn’t given, you don’t really have much recourse other than banning people from commissioning you again in the future.

Quotes and Payments

If you give a quote for the price of a work based on the complexity of the idea or the characters involved, how do you determine it? It’s not going to be a 100% scientific process, of course, but if you can give some insight to clients on how you determine prices, it can prevent misunderstandings later. Also don’t forget to include an expiration date on your quotes, or you will have people returning long after you’ve forgotten about them, expecting to pay a price you quoted a year ago.

How will payments be handled? What type of currency do you accept? Do you send the client an invoice, or provide a quote and expect them to pay it to you? What about more expensive projects? Will you take down payments, and if so, would the balance be paid in installments, and in what time frame?

One thing to be wary of is split payments. Paypal offers this as a payment option. If two people are going in on a picture together, they may ask to each pay half (or some other arrangement). I have run into a situation in the past where one person suddenly wanted to back out of a project and asked for their half of the money back. Accepting split payments means you’re now negotiating a project between two (or more) people at once. I find having a single point of contact for payments makes it easier to manage the commission process.

Refunds and Cancellations

If a customer needs to cancel a project or wants a refund, how would you handle this? What if work has already been completed? I work on a system of stages, where art has a sketch stage, an inking stage, a color stage, and so on. As work progresses through the stages, less of the total is eligible for a refund, to cover the work that has already been done. Again, this can be a point of contention, and won’t necessarily hold up in court or—more likely—in a dispute with Paypal. But like everything else with the TOS, the point is to have something in writing that both parties can agree to ahead of time, so it doesn’t feel like a capricious dictum from the artist later.

The Commissions Process

What sort of styles do you offer (e.g. sketch, flat colors, cel shaded, etc), and what can the client expect from each style? Will they have the ability to make revisions, and if so, how will that be handled?

It’s especially important to consider here what happens if a client makes a particularly demanding or outright unreasonable revision request. For instance, perhaps you’ve drawn a pose they described but after seeing the sketch they decide they want the pose from the back instead of the front. Obviously this necessitates redrawing the pose. Would there be a charge for that, and if so, how much? What about a client who returns time and time again with additional small changes even after you’ve addressed the previous changes they’ve asked for? Do you have a way of addressing this, or a limit to the number of changes that can be requested? ⁴

A lot of what goes in to the commissions process might not be something you think about until you end up dealing with an edge case—a commission that does’t really break any rules, but isn’t really what you intended your commissions to be, either. If that happens, this is where you’d want to address that in your TOS to help make the expectations more clear for the next time.

Deadlines

This could be an article all on its own, and I’ll likely end up covering it more later. But if you’re accepting money for work, you should also be establishing specific deadlines for when that work will be completed.

Deliverables

It’s important to be specific on what will (or will not) be included with the final project. If it’s a digital project, is it just a flat file like a JPG or PNG? Are you also okay with sending out PSD files? If it’s a printed media piece, would you also include digital files used in its creation? If it’s a 3D model is the client getting the actual 3D model data, or just a turntable or other series of renders? ⁵

Auctions / YCHs / Drives

Although an auction or an art drive is probably not going to be an artist’s main source of income, they happen often enough that you may want to have a section addressing things specific to them. This should cover info like how do you administer the auction itself? How quickly do you expect payment from the winners of an auction? How do you handle it if someone drops out? For YCHs, how far are you willing to modify a pose (if at all) to accommodate other characters? For art drives, it may be helpful to explicitly state that high donations don’t afford any special privileges or entitle the donor to special consideration in other projects like commissions.⁶

Privacy

It’s a good idea to have a formal privacy policy, and that would probably make for another good article sometime too. I just have a shorter statement saying I won’t misuse peoples’ personal information and only collect it for the purpose of doing business with them. Some places like Europe have much more stringent privacy regulations, so you’ll want to adapt your privacy policy to be in accordance with local laws.

Copyright and Usage

This section could have entire books written about it, and certainly deserves a more detailed look by someone who isn’t me. But basically you want to be as clear as possible about who can do what with the image. If you plan to use an image in your own advertising, it’s a good idea to mention that here. United States copyright law holds that the creator of an image has the copyright to that image, even if the image itself was a commission of another character that they don’t own the copyright to. I don’t have a source for this, so don’t take my word for it, but it’s what I’ve always understood to be the case from my reading on the subject. In any case, to avoid ambiguity, I specifically state that I own the copyright to the images themselves.

Final Thoughts

I hope this provided a useful overview about Terms of Service documents and how they can benefit your own business. Anyone who takes commissions should have one. They clarify the responsibilities of both the artist and the client, and help to manage the client’s expectations. Although a TOS is not necessarily a document that will protect you in court or in arbitration, it will still help you avoid many headaches and makes the process smoother for both you and your clients.

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1. At least I’ve never heard of any cases of someone taking a furry artist to court over a disputed commission, but if it has happened I’d be interested to hear about it. It’s probably more likely to happen in the context of a fursuit commission which runs into the thousands or tens of thousands of dollars. Smaller art commissions just aren’t worth it to litigate. That being said, if you are doing larger projects like fursuits you absolutely should have a formal contract in place in addition to a TOS. Don’t just rely on the TOS itself.
2. Or worse, if you’ve already taken their money before understanding the full scope of the project.
3. That being said, do not ever feel like you need to be pressured into doing what a client wants. If you’re not comfortable with something, it is absolutely okay to stand your ground and say no. I’ve been doing furry art full time for over three years now, and I still remember clearly a few instances where I didn’t say no to an unreasonable demand. And even though it all worked out fine, I still regret caving to these demands. What I did do, however, is put a line in my TOS to prohibit that kind of behavior in the future.
4. It may go without saying, but these are all things I’ve experienced—not only in doing furry art, but also working professionally in the media production industry. Some companies are extremely detailed in their contracts, and some play fast and loose with what they let clients get away with. In working for yourself, you’ll want to figure out what those boundaries will be for your own practice and then make that explicit in your TOS.
5. This tends to be more of an issue with professional projects where many different types of media come together to create one final deliverable. For instance, there may be video shot for a client in the production of a TV commercial, but typically that raw video is not a deliverable to the client. They only get the final edited TV spot. If they wanted that video for some other purpose, there would be additional licensing or usage fees—if it’s even available to them at all. Still, it’s a good thing to consider even in the context of furry art. Inevitably you’ll get someone asking for “all files used in the creation of my picture” and if you’re not interested in arguing about that, you’ll want to make it obvious in the TOS that that’s not something you provide.
6. At some point this may start to feel like so much legalese, and in a sense it is. Legal documents tend to be so verbose because they are trying to cover every possible contingency—often because someone did try to pull a fast one, once upon a time, and now there’s a line in the contract somewhere preventing this very thing. Working as a professional in any field sometimes feels like an exercise in “no matter how picayune some loophole seems, someone, somewhere will try to exploit it.” If you’ve been reading through this article rolling your eyes and thinking, “no one would ever try to do THAT”, well the reason I mentioned it is because someone already has.