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.


Need to define “any deviantART Site(s).

Should not need to terminate in writing, nor should it have to be done in its entirety. This is entirely one sided, as there are different termination criteria for the artist and deviantART.

Suggested text: This agreement may also be terminated in relation to a particular work by the removal of that work by the artist or by deviantART. If this is done by the Artist using the supplied tools for this purpose, deviantART will be allowed a period of TBD days to remove all versions of the work from its computers, Site(s), and other forms of storage. If an artist removes all works it will have the identical effect as if written notice had been provided.

2. Ownership. Artist at all times retains all right, title and interest in and to the Artist Materials provided by Artist hereunder (including, without limitation, the copyrights in and to the Artist Materials), subject to the non-exclusive rights in the licenses granted to deviantART under this Agreement. Artist is free to grant similar rights to others during and after the Term of this Agreement.
3. License. to Use Artist Materials. As and when Artist Materials are uploaded to the deviantART Site(s), Artist 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 part of them for digital or analog transmission, manipulation and exhibition in any format and by any means now known or not yet known or invented;

NO! I am not granting anyone, ever, the right to do something this broadly. Enumerate what you want to do! Be specific. It actually matters to many of us.

I have no intention of allowing you to disassemble my work as in “any part of them”.

b. to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital) or other means, and electronically or otherwise publish any or all of the Artist Materials, including any part of them, and to include them in compilations for publication, by any and all means and media now known or not yet known or invented ;

NO! You do not have the right to do as you please. You have the right to display them on your one website. Nothing else. Period. If you want to do something else, ask.

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

NO! You can change the size. You can not do other things.

d. the right to sublicense to any other person or company any of the licensed rights in the Artist Materials, or any part of them, subject to the terms and conditions of this Agreement.

NO! You do not have the right to sublicense them.

e. Artist acknowledges that Artist will not have any right, title, or interest in any materials with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated..

This is solved by not allowing you to do that.

f. During the Term, deviantART’s licenses under this Agreement include the right to use any part of the Artist Materials in the promotion,advertising or marketing of the DeviantART Sites.

NO! And for some reason, you’ve lost the (s) in Sites.

g. 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.

“biographical materials” “or textual materials”

This means that unless I delete my page information, I have not terminated the agreement. That is unacceptable. This is why you MUST make the term expire for a particular work when it is deleted. That is NOT negotiable. Really.

4. Name and Likeness. Artist also grants to deviantART:
a. a 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 against deviantARTany 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 also agrees that any persons other than Artist appearing recognizably or otherwise in Artist Materials will 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 the materials as described in this Agreement; 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 l, worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials, as described in this Agreement, during the Term.

I’m thinking this is just poorly worded. It is terribly unclear and I suspect unenforceable.

5. Limitation Of Rights The rights and licenses granted to deviantART under sections 3 and 4 of this Agreement require deviantART to obtain Artist consent before deviantART makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Artist Materials not in association with deviantART as an individual work of art in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Artist Materials either as part of the deviantART Site(s) or in connection with the distribution of content groups from the deviantART Site(s) and/or for uses of the Artist Materials made at the discretion of a visitor to the deviantART Site(s) or other users under agreements with deviantART. deviantART will contact Artist in writing about any individual commercial uses of Artist Materials instigated by deviantART.

So while it is not allowed to separately buy, license, re-sell or re-publish or commercially use any Artist Materials not in association with deviantART as an individual work of art in isolation from any other works, it is allowed to:

Jointly buy, license, re-sell or commercially use any Artist Materials not in association with deviantART as an individual work of art in isolation from any other works, or

Separately buy, license, re-sell or re-publish or commercially use any Artist Materials not in association with deviantART as a joined work of art together with other works, or

Jointly buy, license, re-sell or commercially use any Artist Materials not in association with deviantART deviantART as a joined work of art together with other works.

So that people understand, this means, very clearly, that deviantART CAN SUPPLY YOUR WORK FOR PAYMENT AS PART OF A PACKAGE OF CANNED VISUAL MUZAK. IT CAN SELL COMPILATIONS OF WORKS. IT CAN SELL YOUR INDIVIDUAL WORKS AS LONG AS IT PACKAGES THEM WITH OTHER WORKS.

And all deviantART has to do is contact the Artist about it? Great, I get a receipt.

A period (.) is needed after the section title.

6. Payment Unless otherwise agreed between Artist and deviantART in a writing from deviantART, the license granted to deviantART under this Agreement is royalty-free.
7. 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, 4 and 5,
b. Artist has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Artist to enter into and perform this Agreement and to grant deviantART the rights to use the Artist Materials set out 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 of them 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.
8. Third Party Payments. Artist is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Artist

Materials.

9. 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 of this Agreement; and
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 provided in this Agreement
10. 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 will not be responsible to Artist or others for any interruptions, errors or problems or even for an outright discontinuance of the deviantART service. There are no assurances whatsoever that any of the Artist Materials or any part or element of Artist materials will actually be used on the deviantART Site or if used will 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 of them 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 the content of the Artist materials for any purpose or reason. Artist acknowledges that Artist is solely responsible for all content submitted to the deviantART Site(s) by Artist. The deviantART Site may be discontinued at any time, with or without reason and all Artist materials uploaded to deviantART may be removed and unavailable for recovery by any means. Artist and only Artist is responsible for maintaining at Artist’s expense and in facilities owned or controlled only by Artist any and all original materials or so-called back-up copies of all or any part of the Artist Materials.

11. 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.

12. 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 BY THE LICENSES GRANTED UNDER THIS AGREEMENT ARTIST WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON AND NOT FROM DEVIANTART, AND THAT ARTIST WILL NOT HOLD DEVIANTART RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.

13. 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 IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN ARTIST AND DEVIANTART, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES..

14. 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.

15. Miscellaneous.
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.

It seems odd that deviantART can assign this agreement but the artist can not. Considering that, in fact, art groups are exactly such an assignment, this ability seems needed. At the very least, there should be a requirement of legal notice if deviantART makes such an assignment.

c. Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to deviantART Inc., LLC, 7095 Hollywood Blvd #788 Hollywood, CA 90028, 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.

As indicated previously, this is both unfair, and unacceptable.

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 will 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 will govern all prior and future submissions of Artist Materials. If Artist does not accept the new terms of the Agreement, Artist’s only and exclusive remedy will 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.

NO! If deviantART changes this notice, the artist should be notified BOTH by email, and by a required to acknowledge notice upon visiting the site. My bank can do this. My computer can do this. You can do this.


f. Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, 14 and 15 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.

NO! I am not granting you the right to use my art on those devices. Period.



Is this really so hard to understand? I'm left with the conclusion that either you have really, really awful lawyers, which I somehow doubt, or you believe you have illiterate users.

This is the point:

You have the right to display people's art when they upload it.
You have the right to store it, resize it, transmit it and publish it on your site.
You can include it in any form of page on the site including articles, thumbnails, indices and links.
You can use my name in connection with those works of art for those purposes.

I affirm that what I upload is mine and indemnify you from any liability connected to your using what I upload for the aforementioned uses.

If I delete a work the agreement is terminated for that work and you must remove any copy of it you have within a reasonable (within 30 days) timeframe.

If you delete a work you do not have to explain why.

You can terminate my ability to upload at any time for any reason.

I can terminate my participation in this agreement at any time for any reason. If I choose to, I can either delete my works piecemeal, in which case if I inadvertently fail to remove anything I cannot hold you responsible for that error, or by contacting the designated representative of deviantART in writing, either by email or by physical delivery (USPS, facsimile, or major carrier [FedEX, UPS, etc.]). If I terminate my participation, either in piecemeal or entirely by written notification, deviantART will have a reasonable time (within 30 days) to remove all copies of my work from all computers and other means of storage in its possession. If long term storage precludes this from taking place, the devinatART will take the necessary steps to remove it from those archives when next accessed and will not allow archived copies from being used for any purpose whatsoever before doing so.

This is a submission agreement with the artists' interests in mind. The above draft is not.

What I really DO NOT GET is why it is so hard to understand that MOST of us WILL grant specific licenses to deviantART to do more than what is initially granted IF it is clearly described and presented factually and openly. That you do not do this IS THE PROBLEM! That you do not ever get that IS AN EVEN BIGGER PROBLEM.

Note: I do not intend my criticism to be taken PERSONALLY by the individual who posted it, or by the well intentioned people who put time into drafting it. It is, however, still quite a one-sided, poorly worded, vague and ambiguous construction. I know that it does not need to be this way.

--
"Love one another." This isn't rocket science.
"Gandhi was much more Christian than many people who say they are Christians."
deviantART, where quoting an admin can get you banned.