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Authorship and Copyright Question


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#1 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 12:01 PM

I'm negotiating an agreement with an artist, who does not want to sign a Work-for-hire(WFH) agreement with me, which I had created for me by a lawyer. Having now read up on some of the issues surrounding WFH, I can understand why an artist would not want to sign a default WFH contract.

My question is, if in a contract the artist assigns to me all copyright and ownership of the artwork, but retains the right to claim or disclaim credit as the original author on all of the artwork, can I still still list the game as being created by my company, or would I need to list it as having been created by "My Company + Artist Name"?

Thanks,

Jesse

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#2 frob   Moderators   -  Reputation: 20349

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Posted 05 December 2012 - 12:17 PM

Probably. This is a country-specific.

It looks like you are writing about a part of IP law called "moral rights", also referred to as "honor and reputation".

The original author almost always retains the rights to claim credit and say that they created it. It doesn't matter if they sell the work as work-for-hire, or assign all others rights away. Generally moral rights are not transferable and not surrender-able.


As an example of these rights, imagine you programmed something as an employee. The company can say it was made by them. But you will also have a moral right to the content you created --- you can always declare that you created that work as well.

If he creates the art as a work for hire, or if he creates the work and assigns the rights to you, either way you can list it as being made for your game, AND it can be listed by the author as a work of his own creation.
Check out my personal indie blog at bryanwagstaff.com.

#3 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 12:37 PM

My primary concern was not being required to list the author of any one particular aspect of the game that I've contracted out (Artwork or Music) on the front of the metaphorical box (which in some cases might make for a long list). Having them claim authorship, or listing them in the credits of the game is fine by me. Credit where credit is due.

My second concern and question would be: does authorship, under US copyright law that states:

(a) Rights of attribution and integrity.--Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art--
(1) shall have the right--
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and


Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?

#4 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 12:39 PM

Also, since I apparently forgot the most important part of the post (shame on me)!

- Thank you for your quick and clear response. I appreciate it greatly.

Edited by JesseCF, 05 December 2012 - 12:42 PM.


#5 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 12:46 PM

It looks as if in the United States, an artists Moral Rights as covered by the Visual Artists Rights Act does not cover video games, so the author would not be able to prevent me from modifying the originals or creating derivative works, as long as I own the copyright. Is this correct as far as you know?

Regards,

Jesse

#6 Tom Sloper   Moderators   -  Reputation: 9588

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Posted 05 December 2012 - 12:48 PM

Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?


Probably. Ask your lawyer.
-- Tom Sloper
Sloperama Productions
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www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

#7 bschmidt1962   Crossbones+   -  Reputation: 1825

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Posted 05 December 2012 - 01:10 PM

Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?


As owner of the copyright (because it is a work for hire agreement) you are specifically granted the rights to make "derivative works". Changing colors, file formats, clothing, resolution, etc are all derivative works. If you are particularly worried, in the contract you can have the artist waive those rights you're concerned about. However, I think an artist would have a difficult time convincing a court/judge that changing the color of a character would be harmful to the artist's honor reputation.
Now if you were to cloth the character in a Confederate Flag, that might be something else. This sounds like a great "law school case hypothetical" btw :-)

Chat with your attorney and see what they say.

Also, regarding the issue of game credit.. I have signed contracts where I explicitly get the right to say publicly that I have worked on the game. (most typically, there is a clause that in the standard WFH contract that prohibits me from doing so without expressed written consent. I then have them write a side letter giving me that right as a condition of signing the agreement).

Btw, did the artist specifically tell you what about the WFH agreement you presented to them made them not want to sign it?

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#8 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 01:21 PM

Btw, did the artist specifically tell you what about the WFH agreement you presented to them made them not want to sign it?



The artist seems primarily concerned with being able to claim credit, and to display the artwork on their portfolio after the game was released. They were also generically worried about work-for-hire contracts in that they would allow me to turn around and start selling non-exclusive licenses to the artwork on stock-photo sites. The default work-for-hire contract I was using did not explicitly allow the artist to retain these rights or protections. I am willing to include in the contract clauses which allow the artist to retain these rights/protections, but I needed some clarity on the terms so I didn't accidently do something terribly stupid before we started modifying the contract.

There was an additional request about retaining some form of rights in the case that the artwork was used in merchandising, but I was clear that wasn't negotiable for me. If I'm purchasing an artists services to create original artwork for my game, barring some specific rights I'm willing to give up like the right to mass-resell the artwork as-is, I want the copyright to do anything I want to or need to with the artwork in order to turn a profit with my game.

I'm curious what your (multiple persons) thoughts are on the bit about wholesale reselling. How typically is something like that brought up? Is it actually a serious problem for art contractors? Would you be willing to forgo those rights as a game developer hiring an artist? It's mostly an academic question for me, since I'd rather get a good artist at a cheap price and forgo those rights for my first reasonably sized game than hassle about it and have to find a different artist.

#9 Tom Sloper   Moderators   -  Reputation: 9588

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Posted 05 December 2012 - 01:27 PM

I'm curious what your (multiple persons) thoughts are on the bit about wholesale reselling.


That's only an issue if the contributor is getting royalties based on sales.
-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

#10 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 01:44 PM

It also sounds like "Work-For-Hire" is a term used which explicitly implies certain rights, and it would be more or less equivalent to:
1) Have a work for hire contract which protected certain rights for the artist, including the right of authorship.
2) Have a NON work for hire contract, which transferred all copyright and ownership to me.

Both would allow the artist to claim authorship, and an additional clause to either would allow them to display the artwork on their portfolio.

#11 bschmidt1962   Crossbones+   -  Reputation: 1825

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Posted 05 December 2012 - 03:07 PM

Yes, the term "Work for hire" (technically "work made for hire") is a specific phrase used in the US copyright law.

It is not at all uncommon to have a work for hire contract allow the things your artist requests, such as being able to display the work in their own portfolio, getting "game credit", etc.

I'm curious what your (multiple persons) thoughts are on the bit about wholesale reselling. How typically is something like that brought up? Is it actually a serious problem for art contractors? Would you be willing to forgo those rights as a game developer hiring an artist? It's mostly an academic question for me, since I'd rather get a good artist at a cheap price and forgo those rights for my first reasonably sized game than hassle about it and have to find a different artist.


You've now crossed over from legal issues to business issues. Posted Image.
As a game developer, you want as much control over what they deliver as possible. Ideally that is everything. And typically an artist who is paid for their work should not expect to retain any rights. They create something to your spec. You pay them. You own it. End of story.
All that said, it is perfectly acceptable to give them back some of those rights. However, if they want something of value (eg limiting the rights they give you), then it is perfectly reasonable for you to expect something of value in return (say paying them much less money).

I've seen this come up moreso in game music than in art. For example, a composer may want a "piece" of game soundtrack sales. In such cases, what is typically done is a work for hire agreement, with an additional clauses that the composer will get a certain percentage for uses of the music outside the game itself. But often that clause comes at the cost of a lower fee.

I'd highly recommend you make it a Work For Hire agreement,and then give back specific bits, as opposed to making it not a work for hire agreement, and then trying to add in all the things that you need as a game developer. That would make it more like a license agreement (they retain ownership and give you certain rights) and that is fairly unusual when the artist would be creating new art for a new game. (it's a different story if, for example, you wanted to incorporate art that has already been created into your game). Also very important is that, while they may be the author of the art asset, you as the game developer own the characters.

Hope that makes sense! Good luck-- it sounds like you're asking all the right questions.

Brian
GameSoundCon

Edited by bschmidt1962, 05 December 2012 - 03:09 PM.

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#12 JesseCF   Members   -  Reputation: 152

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Posted 05 December 2012 - 03:15 PM

Based on the suggestions here and my own research, I'm going to make it a work for hire agreement (as I'm wary of changing something so fundamental to the agreement my lawyer gave me) and allow for:

Consultant retains the exclusive right to claim or disclaim authorship of artwork; prevent the use of his name in association with a that he did not create; and prevent the use of his name as the artist of a work that has been modified in such a manner that would be prejudicial to the Contractor's honor or reputation.


Seems reasonable to me.

Edited by JesseCF, 05 December 2012 - 03:16 PM.





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