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josh1billion

Transferring rights of artwork (when hiring an artist on a per-image basis)?

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Hello all, I am the owner and creator of a growingly successful browser-based MMORPG. Let me first say that my university has lawyers on-campus which give 15-minute meetings, so I will be asking a lawyer there to review my written agreement as well, but first I want to get some advice here from you guys who may have experience with this. Not long ago, I decided to hire an artist to do artwork on a per-image basis because my own skills in drawing artwork are not so great. So I have been having an artist draw monsters, etc. for me, and we have been keeping a total of how much each image will cost. Very soon, I will be requesting him to legally transfer all rights to those images (and their intellectual properties and whatnot) to me, and upon receipt of those rights, I will send him his payment. The help I need is with writing the actual written agreement, which states that those images and all ownership and rights to them are being transferred from him to me. I will own the images, their likenesses, the "ideas" behind them (intellectual property, etc. Legally, I could then use the images in any way that I want (including using them in other games, merchandising, etc. if anything came up) and he'd technically/legally not be able to do anything with them anymore (though at the same time, I'm not going to sue him for using some images on his resume/whatever, but I'd still like the "power" to do so with the images being my property). Here's the current draft I'm working on, please take a look and offer suggestions. Note that I am trying to "waterproof" this very tightly as you will likely notice. I, [ARTIST's FIRST AND LAST NAME], am hereby transferring full ownership and copyright of the enclosed images, their intellectual properties, and their likenesses (including, but not limited to, any and all digital entities depicting, in large or small part, the enclosed images, modified or unmodified)to Joshua Forde. The enclosed images are hereby the property of Joshua Forde. I understand and agree that I am giving all rights to Joshua Forde for any usage, distribution, modification, alteration, and sale of the below images, their intellectual properties, and their likenesses. I acknowledge that I will no longer have any ownership or rights over the images, their intellectual properties, and their likenesses (including, but not limited to, any and all digital entities depicting, in large or small part, the enclosed images, modified or unmodified). [IMAGES ARE PRINTED HERE ON THE SAME PAGE] [ARTIST SIGNS NAME]

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IANAL and this is not legal advice. There are a couple of ways to draft assignments, but they usually need to include the same things:
1) an assignment of all intellectual property rights, including copyright, trademark, and likeness rights;
2) A waiver of moral rights to the extent that they are waivable;
3) A very clear description of what's being assigned-- including all rights in and to the images, negatives, etc. Both the intellectual property rights and the physical copies should be accounted for.

What you have will get the job done, but as I said, there are plenty of ways to skin the cat. In the future, you may also want to set up work for hire agreements.

Straight from a treatise on the subject (namely Intellectual Property Licenses: Forms and Analysis (I personally hate this one because of the whereas and heretofors, but it's a basic assignment of copyright agreement)-- Any use or reproduction is purely for educational purposes--

Quote:
COPYRIGHT ASSIGNMENT
WHEREAS, ____________, a _________ corporation ("Assignor"), owns certain
rights in and to the works and the respective copyright registrations listed on
the attached Exhibit Ahereto (collectively, the "Works"); and

WHEREAS, Assignor has agreed to assign the Works to _______________,
a ____________ corporation ("Assignee"), and Assignee wishes to acquire all of
Assignor's rights, title and interest in and to the Works, including the
copyrights therein and any and all renewals and extensions thereof;

NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Assignor does hereby assign to
Assignee, free and clear of all liens, claims and encumbrances, all of
Assignor's right, title and interest in and to the Works, including any and all
copyrights therein, and any and all renewals and extensions thereof under
applicable law.

This Assignment is made effective as of _______________, 19___.

ASSIGNOR:______________________
By: ___________________

Its: ___________________

STATE OF _____________ )

) ss.:

COUNTY OF___________ )

On ____________, 19___, before me personally appeared __________________, the _________________ of ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that such person executed the same in such person's authorized capacity, and that, by such person's signature on the instrument, the person or the entity on behalf of which the person acted executed the instrument.


Here's a composite of a few others, which covers a broader range of rights in a work, but which can also literally go on for pages...:

Quote:
XXX hereby irrevocably assigns and otherwise transfers to Joshua Forde the intellectual property rights, including but not limited to all copyrights and likeness rights in the images set forth in schedule A and all rights in and to all prints, reproductions, derivative works, negatives, and byproducts in any and all media now known or hereafter discovered that embody said images (hereinafter "Works"). XXX hereby waives any and all moral or author's rights in and to the Works to the extent that they are waivable. Joshua Forde and his designees and assigns shall have the exclusive worldwide right in perpetuity to sell, reproduce, create derivative works of, publish, display, distribute, transmit, or otherwise use the Works in any form and by any method now known or hereafter known.


Hope this helps.

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Quote:
Original post by Tom Sloper
Yeah, what she said. Also I urge you to check out these:
http://www.igda.org/columns/gamesgame/gamesgame_Nov07.php
http://www.obscure.co.uk/articles-2/startup-legal-agreements/

http://gameattorney.com/



I just want to emphasize the entire "getting a lawyer" statement from Tom's Games Game article-- any time you have to deal with drafting agreements, negotiating contracts, or reviewing whether a particular form will work for your project, you should ALWAYS get a competent attorney with drafting and IP contract experience to look over your drafts. I know you mentioned having your on-campus lawyer look over it, but as I have no idea what his practice area is, that may be of little use (an in some cases it can be detrimental, as attorneys not experienced in IP may not be aware of all of the rights you need to clear).

There are attorneys out there who draft standard contracts for a flat fee. Look for entertainment and IP lawyers in your area, see about getting a free consultation, and compare and contrast based on recommendations. Also, Tom B. (the games attorney) is a great resource. If he can't help you with a specific deal (due to the entire forming an attorney-client relationship thing), he may be able to recommend someone who can help you.

Best of luck!

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Quote:
Original post by josh1billion
Here's the current draft I'm working on, please take a look and offer suggestions. Note that I am trying to "waterproof" this very tightly as you will likely notice.

I would suggest that you stop pretending to be a lawyer.

Get a lawyer.

If you absolutely insist on not getting a lawyer (which is a really stupid idea) then at the very least go get some books by Nolo press such as "Legal Forms for Starting & Running a Small Business", and "Consultant & Independent Contractor Agreements".

Those books include contracts that do what your post fails to do. They provide excellent contracts, discussions about the details, and hints for what can be modified easily without the help of a lawyer.


But really, you should hire a lawer.

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Quote:
Original post by frob
I would suggest that you stop pretending to be a lawyer.

Get a lawyer.

I'm not sure if you intended this, but that comes off as VERY rude.

But my response is this: I am going to meet with a lawyer, as specified in my original post, but my goal is to walk in with a basic draft so that the lawyer has something to read and revise, rather than walking in empty-handed and trying to explain the situation and do everything from scratch. As I said, lawyers on-campus give 15-minute meetings at a time.

Obviously, if the on-campus lawyers have limited business law experience, I'll consider meeting with another lawyer, but free legal assistance is definitely worth a try, especially on an independent game development budget.

To the rest of you, I appreciate your advice. I have read through several parts of the links you both posted.

The Work-for-Hire article appears the most relevant, although it appears this is dealing more with a scenario where the company is actively hiring the artist(s) to complete work routinely. What I'm trying to do instead is transfer "completed" works, mainly to keep things simple. In other words, my artist will be completing a set of images at a time, and then signing a written agreement for each set upon receipt of payment for that set. The written agreement for each set will be largely the same, with the difference being different images are described. I choose this method because it will be much more simple in the long run: on a written, signed paper will be a printed copy of each image displayed, and the paper will basically say "I'm giving all rights to this image to you" (but in legal terms, of course, and the paper will contain a set of images rather than a single image).

I prefer this method to writing an on-going contract, because everything is simple, precise, and clear, and it raises no doubts as to which rights to which images are being handed over.

I'll print my basic rough draft and show it to an attorney on-campus this week or next, and we'll see where things go from there. Thanks again, Tom Sloper and Madelelaw.

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Original post by josh1billion
Quote:
Original post by frob
I would suggest that you stop pretending to be a lawyer.

Get a lawyer.

Quote:
I'm not sure if you intended this, but that comes off as VERY rude.


Frob can be a bit abrupt, but he honestly has your best interest at heart. More to the point, he's right. You should avoid drafting your own contracts unless you're experienced with those contracts, or have someone who is experienced with those kinds of contracts review them. He's not trying to be rude, he's just trying to caution you in his unique and endearing fashion. ;)

Quote:
But my response is this: I am going to meet with a lawyer, as specified in my original post, but my goal is to walk in with a basic draft so that the lawyer has something to read and revise, rather than walking in empty-handed and trying to explain the situation and do everything from scratch. As I said, lawyers on-campus give 15-minute meetings at a time.

Obviously, if the on-campus lawyers have limited business law experience, I'll consider meeting with another lawyer, but free legal assistance is definitely worth a try, especially on an independent game development budget.

To the rest of you, I appreciate your advice. I have read through several parts of the links you both posted.


Totally understandable, and I seriously suggest also bringing a work for hire agreement with you. I'll explain why below.
Quote:

The Work-for-Hire article appears the most relevant, although it appears this is dealing more with a scenario where the company is actively hiring the artist(s) to complete work routinely. What I'm trying to do instead is transfer "completed" works, mainly to keep things simple. In other words, my artist will be completing a set of images at a time, and then signing a written agreement for each set upon receipt of payment for that set. The written agreement for each set will be largely the same, with the difference being different images are described. I choose this method because it will be much more simple in the long run: on a written, signed paper will be a printed copy of each image displayed, and the paper will basically say "I'm giving all rights to this image to you" (but in legal terms, of course, and the paper will contain a set of images rather than a single image).

I prefer this method to writing an on-going contract, because everything is simple, precise, and clear, and it raises no doubts as to which rights to which images are being handed over.

I'll print my basic rough draft and show it to an attorney on-campus this week or next, and we'll see where things go from there. Thanks again, Tom Sloper and Madelelaw.


A work for hire agreement can be used any time you commission an independent contractor for a particular work. Often a standard work for hire agreement is on a per job or per project basis. The "work for hire" language does not refer to the relationship of the parties, but instead refers to the classification of the work itself. This means that if you commission a single drawing or work of art from someone (in other words, you ask them to draw something for you), you can do so on a work-for-hire basis. This is preferable, as the art becomes part of the "collective work" of your game, which is covered under the definition of a work-for-hire under the copyright act.

For instance, in the music industry you may commission a producer or session musician on a work-for-hire basis to work on a single track for your album. This means that all of the work and the intellectual property to that work belongs to you, so long as you have the proper work for hire language in there.

And it's reasons like these that you need a lawyer, because a lawyer would be able to tell you these things and point you to the specific kind of contract or language you would need to use, as opposed to the general education you can find on these forums (or on mine or Sloper's webpages). Assignments are actually a bit more complicated due to moral rights and author's rights issues that can be more appropriately addressed in a work for hire agreement under WIPO and other foreign laws.

So don't get too upset with Frob-- he's just trying to keep you from jumping into a potentially dubious contract situation with your future artists.

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So if I write a Work-For-Hire agreement, do I still need an agreement similar to the one I drafted (for each artwork piece)?

I set up an appointment today, so I'll be meeting with an on-campus attorney tomorrow morning.

Thanks again for your help, Madelelaw.

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Quote:
Original post by josh1billion
So if I write a Work-For-Hire agreement, do I still need an agreement similar to the one I drafted (for each artwork piece)?

I set up an appointment today, so I'll be meeting with an on-campus attorney tomorrow morning.

Thanks again for your help, Madelelaw.


Work for hire agreement should include an assignment of any and all rights in the event that the work is not deemed a work for hire under US or foreign copyright law. Work 4 hire agreements typically also include a waiver of moral rights to the extent that such rights are waivable (never just ask for a straight up waiver-- that'll get the contract voided in countries such as France, where certain droit morale [moral rights] are not waivable).

And once again, before committing to anything, make sure that a lawyer with IP experience assists you in drafting/reviewing anything you anticipate using. Best of luck.




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Also, never rely on the X amount of free time meetings with lawyers. Lawyers are vastly experienced with filling up time with words and sayings that don't mean much except to further time. So while I am sure that the lawyer attached to the school might actually be wanting to help, I have met with several lawyers for "free hour long consultations" only to leave with nothing more than an hour long sales pitch as to why I should pay him a retainer fee and use him as my lawyer. It was a pain in the ass. I would suggest that you find a lawyer that you or someone in your family knows that has done business with and chances are you can get a real consultation for a low fee or free. But another good place that you might want to look for legal consultation is law students. They can be kind of busy, so make sure they are willing to discuss something with you before you just pounce it on them, but they are pretty well versed in things like writing legally watertight contracts and will generally be very helpful.

Just my $0.02.

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