Question about legal ownership of commissioned assets

Discussion in 'Commercial Games Discussion' started by Dark Horseman, Apr 18, 2018.

  1. Dark Horseman

    Dark Horseman NPC Veteran

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    So for those with experience hiring or commissioning an outside party for your commercial project, do you guys normally set any terms or write a contract for usage/rights?

    Like is it sufficient to just write in an e-mail, "Hey, I'm paying for this artwork to be used in a commercial game. If you accept the job, then please don't resell it or post it online elsewhere." If there's no official contract, can the artist/musician just scoff at your request and do whatever they want with what they made?

    Is the fact that we're small developers make this issue completely trivial to consider, and it's normal to just commission the assets without really worrying about it?
     
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  2. bgillisp

    bgillisp Global Moderators Global Mod

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    So far everyone I've commissioned has it clear in their terms how that works. So should be a non issue?
     
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  3. Andar

    Andar Veteran Veteran

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    you need to specify anything if you want something really clear, and yes that should be in writing (at least in email) with an exact listing of who does what - the artist needs a job description after all.

    As for terms - most commonly used is that the commissioner can use the resulting work for commercial use, and the artist can showcase it in his/her portfolio.
    Sometimes this includes an NDA (do not display until date XY or until the game is released, with a clause in case the game is cancelled) or an artist might make a piece only for non-commercial use (and then cheaper).

    and usually all professional artist give their terms publically so you can check them before contacting them - if someone doesn't have such a page on their website then they're rather new to the business or unprofessional.
     
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  4. Ms Littlefish

    Ms Littlefish Dangerously Caffeinated Global Mod

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    Always ask about terms with the people you're working with. Most have a clear idea of what you can and cannot do with assets made through your dealings together. Most often (in my experience), you'll find that a content creator will give you exclusive rights, though they'll want to showcase it and if you make sales of an artbook or OST they'll want a cut of that. Sometimes, you can get a lower rate if you agree the artist can later release the asset to everyone else. You can also discuss an NDA if you'd prefer the assets to remain under wraps until release. Everyone will vary their feelings and handling of these situations, so it's definitely important to discuss, write, and endorse these things with your signatures.
     
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  5. Grunwave

    Grunwave Veteran Veteran

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    Technically emails fall outside the 4-corners of a written contract. Though some jurisdictions have been more aggressive toward incorporating them into subsequent/concurrent written agreements.

    I can only attest to Florida, where anything said during negotiations is admissible as evidence. Other jurisdictions are more stringent, such as Louisiana.


    If I were you, and I intended to be the owner of the asset, I would have included it in the original negotiations.

    This would have allowed you some remedy. If this was not articulated, then you might have only gained the right of Usus and not Ownership.
     
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  6. Tuomo L

    Tuomo L Oldbie Veteran

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    You own the art. The artist has been working for you as pay for hire, unless the contract specifically states otherwise it's always the person who commissions who has paid for the rights of said artworks and have hired the artist as a sub contractor.

    If you wish to limit the artist you need to have a written contract that binds you both. Then, if they post it even though they signed that they didn't, you file for contract breach.
     
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  7. Sharm

    Sharm Pixel Tile Artist Veteran

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    According to US Copyright law a freelance artist owns the copyright of the original work unless otherwise stated in written contract. A work for hire contract is only automatic if the person is an employee. Freelancing and contract work does not count as being an employee. If you hire an artist for your game without a contract the implication is that you have a license to use it without royalties, you have to give credit, you can not sublicense, the artist cannot redistribute or resell but can display their work in a portfolio. Even though this is the norm there is no legal basis for it, in fact legally you've only purchased a single use license, so getting a contract is a good idea. I don't know anything about other country's laws on copyright so Tuomo L might be right about how it is in Finland, but it isn't how it works for anyone in the US.

    This link seems relevant. Also this one.
     
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  8. Plueschkatze

    Plueschkatze Veteran Veteran

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    The (freelance) artist owns the copyright. He does NOT sell it if you commission him. It's their work.
    They only allow the person commissioning to USE it. Not own. USE.
    You should make it clear what you want to use it for. One game? Only the game? Merchandise? A series of games?
    Because the artist could technically not allow merchandising with his artwork.

    It's the same stuff as with Game IPs. If you work with a publisher, he does not automatically OWN your ideas, your possible franchise....
    He just has the rights to make money with it. Not to run off and pay someone else to make a sequel etc. Unless it's in the contract that he's buying the IP.
     
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  9. thephoenix112

    thephoenix112 Veteran Veteran

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  10. Tuomo L

    Tuomo L Oldbie Veteran

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    Yes, that's what I was talking about. As a contractor or sub contractor, the art created is considered work for hire. It doesn't matter even if you're employed fulltime or not, if you are specifically being paid as a sub contractor to do art for a game, you're considered work for hire. (It even says that in the link that Sham sent, where it meets the requirements of audivisual works) Again, contracts are important.

    For example, I hire you as the artist and ask you to draw elephants for my videogame, the elephants belong to me then since I contracted you to draw them. The disputes about these sorts of things are actually somewhat rare, but in the case it happens courts favor the commissioner of the arts.
     
    Last edited: Apr 21, 2018
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  11. Grunwave

    Grunwave Veteran Veteran

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    That article specifically covers Books/Publications.

    "The Copyright Act's "work made for hire" doctrine is the major exception to the fundamental principle that copyright ownership vests initially in the individual who creates the work."


    Again, the parties really need to discuss the terms beforehand. Failure to do so will most likely result in a nullity. In most jurisdictions, a contract cannot be formed without a Meeting of the Minds. Generally it is a logical impossibility to "Accept" a contract where the parties' believe they are negotiating two varying contracts.


    GEA
     
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  12. thephoenix112

    thephoenix112 Veteran Veteran

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    There are numerous sites that are all stating that the creator must reserve rights. Otherwise it is owned by the contractor. Yes, obviously you should clearly define it anyway but the statements of work owned by the artist beyond a contracted commission dont appear to be backed unless as a work for hire job. If it is a created work specifically designed for contract (which is what a commission is) then the artist would have to ask for acceptable rights to future usage, promotion, and ownership.
     
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  13. thephoenix112

    thephoenix112 Veteran Veteran

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    To further elaborate...

    http://www.artslaw.org/wfhire.htm

    "If the work is a "work for hire," it is the property of the client or employer and the creator or artist shall have no rights whatsoever in the work"

    "The other way for you to end up in a work for hire situation is if you are specially ordered or commissioned to create a work that fits one of several categories"

    "Supplementary work, which is a work prepared to supplement that of another author, for various purposes such as illustration, explanation or comment"

    "When you create a work for hire, you have no rights other than those created by a written and signed agreement. Otherwise, you have no reproduction rights or other residual rights. You are not entitled to stop others from infringing on the copyright in your work. Even the state legislation created to benefit the creators of artwork may not apply to the artist who creates works for hire."

    Basically no rights default. If you want to retain rights, it has to be stated. It also states work done for audiovisual content and for collaborative work (i.e. game assets) would be considered work for hire by default. This is even more true by the defaulted understanding that any commissioned work would be used in a larger context. Every single link mentions audiovisual work that is understood to be that is work for hire, and ownership is given to the contractor, not retained by the author, unless otherwise specified.

    Still, get it in writing.
     
    Last edited: Apr 21, 2018
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  14. Sharm

    Sharm Pixel Tile Artist Veteran

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    @Tuomo L @thephoenix112 I think you're both missing the part that a freelance work is not Work for Hire as a default. As the articles I linked to pointed out, also the wikipedia article on "Work for Hire", for something done freelance to be considered Work for Hire it has to follow 3 criteria, one of which is a written agreement saying that it's a work for hire arrangement. So if you have a freelance arrangement with someone and you haven't said that it is supposed to be Work for Hire then it cannot be Work for Hire. To quote the wiki article:
    In a situation where you've come up with a character and instruct someone else on how to exactly draw them what you've got is a shared copyright. You both have a copyright claim on the work, your claim only covers your part in the production of the artwork.

    I'm being a bit firm on this because I've had a dispute with one of my clients back when I was doing commission work over the exact same issue. He, like you two, was under the impression that it was Work for Hire and that he could do whatever he pleased with the artwork I had made. We thankfully resolved the issue without bringing anyone in but it was a terrifying time for me.

    EDIT: A common example of this in action: When you hire a photographer to take pictures of your kids they'll take lots of pictures and you have to buy the prints from them. If you want to buy the raw photos you'll have to pay much more. This is because the photographer owns the copyright of their photos even though you've hired them to take those pictures and those are your kids.
     
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  15. eluukkanen

    eluukkanen Composer Veteran

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    Basically according to laws and such... (take it with a grain of salt, this is not directly out of a lawbook or anything)

    In any case, copyright always belongs to a person who made the resources and without a written and signed agreement technically the copyright owner has full rights and could prohibit you from using the set resources. Of course in such trivial cases like making resources for a rpg make game, no clear-minded individual would confusingly prohibit and make a case from that, indie developers make so little as it is...

    Still... if you haven't done or signed anything, you are in murky waters
     
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  16. Grunwave

    Grunwave Veteran Veteran

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    I just spent 30 minutes compiling an explanation of why this and the other article quoted are flawed, as is your reliance upon them,

    But instead of belittling the authors of these, I have taken additional time to pull directly from Title 17, so that you and anyone else who reads my response will know what the Copy Right Laws are in the US. (Please note that some of these laws are International via the Geneva Convention).

    First here is a PDF/searchable version of the most recent Title 17, it is taken directly from the US Federal Government's website: https://www.copyright.gov/title17/title17.pdf

    Second, here is a list of what can be Copyrighted:

    "§102 · Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works."

    (5) states that graphic works can be Copyrighted. So in our current conversation, in this thread, we now all know for sure that we qualify.


    Since it seems you want to focus on Work Made for Hire, here is its definition(in pertinent part):

    "(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."


    Quite literally the statute requires that the Signed, Written Contract must expressly state that the Graphic is a "work made for hire." If this is not done in proper form, the exception will not exist.

    If completed in proper form, then the exception will exist, and the Artist will not retain any ownership rights:

    "§201 · Ownership of copyright (a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."



    In light of this, it appears the following conclusions are inaccurate: "Basically no rights default. If you want to retain rights, it has to be stated. It also states work done for audiovisual content and for collaborative work (i.e. game assets) would be considered work for hire by default. This is even more true by the defaulted understanding that any commissioned work would be used in a larger context. Every single link mentions audiovisual work that is understood to be that is work for hire, and ownership is given to the contractor, not retained by the author, unless otherwise specified."


    I hope this clarifies the confusion over Work Made for Hire.


    GEA
     
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  17. Kes

    Kes Global Moderators Global Mod

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    @Grunwave Thank you for that important clarification.

    In the light of that, it seems to me that the answer is unequivocal: copyright remains with the artist unless there is a clear, written contract, negotiated and agreed before work begins, that the artist cedes all rights to the work.

    In the context of developers using RPGMaker, it is hard to imagine a situation where an artist would do that, except perhaps for a very significant extra payment.
     
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  18. thephoenix112

    thephoenix112 Veteran Veteran

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    I don't really understand the misunderstanding of what the law states here. If it's about things being "signed", technically all commission and contract work should require a signature and I guarantee 99.999999% of commissions here ever do that. That said, I went directly to the source, the US Copyright Office.

    https://www.copyright.gov/circs/circ09.pdf

    Immediately off the first paragraphs it details it in no questionable terms. An artist retains copyright, except when work is done as work made for hire, and then it is owned in entirety by the buyer/employer/contracter/etc. Then, to further explain it, it says this is defined as work done in one of two ways. First is obvious, as an employee for a company. The second way requires two things, as defined by the law and further interpreted by the Supreme Court:

    1) If an independent contractor created the work, and the work was “specially ordered or commissioned"

    2) If it falls under a category of work made for hire, is stated to be used for one of those categories, and is known and agreed upon by both parties

    Whereas things like commissioned artwork of an OC wouldn't be work made for hire, the creation of game assets absolutely would be. No one making a tileset or game battle music is surprised when someone commissions them and uses it in a game. It's not meant to be taken as is. So anyone that creates a commissioned game asset already falls under both points that instantly, BY DEFAULT, make it work for hire. It's understood that they are being commissioned for work (part 1, check), and both are aware and agree upon it's usage in one of the 9 categories (audiovisual and collaborative both work) so by US copyright law, defined by the US Copyright Offices, further interpreted by the Supreme Court...it falls directly under Work for Hire, and therefore unless any other concessions are agreed upon, falls entirely into the ownership of the payer.

    The only thing that could come into question is the "signed agreement" but in the day and age of people never signing anything, conversations proving an understanding of usage can and likely would be enough to be considered an agreement, and put it firmly under the work for hire exceptions to copyright law. You can't make game assets and not agree to it being "work for hire". It's not a type of work, it's a classification of the work done. That's the entire reason why the law states that at that point, ownership defaults to the buyer, and any further ownership or rights must be agreed upon at that point.

    Again, it's worth stating all this anyway, but I made dayum sure when I started doing commissions (both making them and paying for them) where ownership resides.
     
    Last edited: Apr 24, 2018
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  19. Sharm

    Sharm Pixel Tile Artist Veteran

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    I think you're right that it can be just an email exchange instead of a signed paper document since it's still a written document with a name attached, but somewhere there has to be the actual words "work for hire" or "work made for hire". This point is very specific and court cases have been won and lost over it. Agreeing that this is going to be used for a game is not enough. I think the reason for this is so that artists don't accidentally give up their rights to something without knowing it. I personally prefer not to do a "work for hire" situation because there are certain protections I like to have, like people being required to credit me when using my artwork, but I've made art to be used in games many times.

    Not owning the artwork in full doesn't mean you can't legally use it in the way that you're wanting as long as that was the original agreement. It just means that the artist is still the artist, really. You just can't use it in any way that would be outside the agreement. So you can't, for example, sell the art to someone else to use.
     
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  20. thephoenix112

    thephoenix112 Veteran Veteran

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    According to the law and the clarification by the Supreme Court, if any work is done by a private contractor for commission, and is clearly known to be used under any of the categories listed...it's defined as "work made for hire". It's not really a label you choose, or something you can decide if it is or isn't that. Paid for commission work used for audiovisual or collaborative work is work for hire, defined by law. It doesn't need to be called that, it just has to have those two distinctions...private contractor, and agreed upon usage of the final product.

    Basically, the focus isn't on if "work made for hire" is listed, but instead the intended usage and end goal. It's what separates an asset from a completed standalone thing. When I commissioned my artist to do the character portraits for the game, we had to provide further rights for usage on HER part because of work made for hire laws. However, when I commissioned her to do a banner for us, I had to be the one that provided rights requests. It's crazy but that's just how it's laid out.

    Now, if you want to reserve rights beyond that, be it credit, copyright, resale/reusage, portfolio, etc...you have to request that on top of it. It's just saying that work for hire is a base step and unless those things are part of the agreement, they are not given. Also, you can still do work for hire and ask for anything beyond that. Work made for hire is just a literal definition of what you're doing...work, that was made for hire. Most commissions do include that info, and absolutely should. But in the end, work made for hire is the one major time where an artist does not retain any rights automatically.

    Otherwise, US Copyright Law considers you sold all of it...the asset, the rights, the ownership...all at the completion of the sale, unless otherwise defined.

    EDIT: One other point...

    "Not owning the artwork in full doesn't mean you can't legally use it in the way that you're wanting as long as that was the original agreement. It just means that the artist is still the artist, really. "

    According to the wording of the law...the artist is not the artist once the work is completed. You aren't owed royalties, credit, or even recognition as being the artist by the default position of the law. If you want that, you have to ask for it. Granted, would be a dick move if someone DIDN'T offer it, but I've seen some people say they're not going to pay someone $500 for some art, then be a billboard for them to get more work. They paid for work, they got the work, that's the end of transaction...and by law, they have every right to do that unless otherwise agreed upon and set before work has begun.
     
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