Question about legal ownership of commissioned assets

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

  1. Grunwave

    Grunwave Veteran Veteran

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    It does not have to be before the work begins, but it should be. That will avoid possible conflict.

    Unequivocal is maybe too strong of a word. In the US, we choose the shitty common law system, so any judge can start legislating. This means there could be cases that undermine what Title 17 articulates.

    I will try to look at Community for Creative Non-Violence v. Reed tomorrow and see if I can paste a full copy of it here. Most USSC cases are longwinded though.

    Btw, the circ09 document is not binding on anything. At first glance, I assume it is a law review article written by a federal bureaucrat. You really have to look directly at the case it is opining over.
  2. Andar

    Andar Veteran Veteran

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    The last several posts here have become so "legalese" instead of "english" that it will probably be better to point out the difference in plain words for those others who read this without understanding.

    The question is basically if an artist can loose his rights on his work without his consent or not.

    The one interpretation of the texts says that the artist has to specifically agree before the work is done that this would be a "work for hire" (and usually get a higher compensation in money for it), because this would loose him all rights to his work.

    The other interpretation said that he automatically looses all rights even if he isn't aware of that fact at all, just because the work will be used as part of a game project.

    There are only two comments I want to give to this:

    1) there are countries where the entire concept of "work for hire" is automatically void and illegal, because the laws there state that the artist can never sell his copyright. He can sell exclusive use rights and would no longer be able to use the work for himself, but he would always be known as the artist of the work and no one else can claim ownership.

    2) the usual prices for commissions inside the RM community are rather low if you compared to similiar quality work outside this community, and at the same time credit to the artist is usually required for anyone using the work.
    Additionally, several of those people offering commissions aren't professionals in the meaning of knowing their own countries laws on a profession they do full time.

    This points to me that the usual and accepted (and default) way for commissions in this community is that they are true commissions and NOT seen as "work for hire", especially considering that a large part of the artists don't even live in countries where that law exists.

    So in my opinion anyone trying to declare " work for hire" as a default here is trying to rob the already low-paid commission artists of the one thing they expect to automatically retain:
    Their credit, their copyright and the right to post the work as advertisement in their portfolio.

    Please do not confuse this with a stand against that option - there are a lot of cases where "work for hire" is the best option for all.
    But anyone I would consider a decent human should agree that this has to be the result of a consent and decision on both sides of the contract, and not after tricking one side into it by interpreting the wording of laws.

    And from what I can read, this was also the original intent of those who wrote the laws (the point about requiring a signed agreement), no matter what some business lawyers convinced unschooled judges into in special cases.
    rpgmakerxp, Puruiro, Grunwave and 2 others like this.
  3. Grunwave

    Grunwave Veteran Veteran

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    Phoenix, please do not be offended by what I am about to say, but please try to read it and appreciate it.

    This is your third post in-a-row, where you have tried to bend a random webpage, hoping it will assist what I can only assume is your predetermined stance.

    First, if you are going to take an honest look at anything in life, you cannot approach it with a preconceived notion, or your judgment will be tainted.

    Second, your abstract opinion, in each of these last three post has been so deluded that it is becoming repugnant. I am spending time, attempting to answer your and the OP's question because it is something I can offer to this community to pay it back for all of the assistance I have received. However, It appears that you desire for the discussion to be clouded, possibly for personal gain.

    To address the above-enclosed post, I am not going to waste anymore time and read through what is probably a 30-page brief. Instead, I will look at the law article you are relying upon. Notice I am going to use quotation marks from the article, like I have done in my other two responses to your post.

    "A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire."

    This is pretty clear. I am unsure how you missed it or why you choose to post 3 paragraphs of your unsupported opinions. I am sorry this sounds harsh, but it appears you are either purposefully convoluting the discussion or you are overly vested in your initial opinion.

    I personally believe this is important information for our community to know. If anyone else has any questions about it, I would enjoy further discussion. Phoenix, I apologize, but I will probably not take anymore time to address your suggestions/questions as I feel I am not accomplishing anything.

    rpgmakerxp and LTN Games like this.
  4. thephoenix112

    thephoenix112 Veteran Veteran

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    To make it as plain english as possible law, work made for hire requires two things.

    1) A person is contracted to complete a work as a special order or commission

    2) The above work's usage is one of the categories listed, and both parties are aware and agree on its usage, and the type of work being done is work for hire.

    The first part is a given for any commission that s paid for in full. The second part is based directly on what kind of work was done and what its used for, because that is what determines who owns what. The "specifically agree" is about the purpose of the commission, and thats the key component here. If its intended purpose falls under any of those categories and both parties are aware...its work made for hire.

    For example:

    Personal: I pay a photographer to do a photoshoot of my dogs.

    Work Made for Hire: I pay a photographer to do a photoshoot of dogs for use in a magazine or movie

    The first wouldnt fall under the statutes. The second would, and by agreeing to its usage and its purpose, youre agreeing to it being work made for hire.

    A corporate law site that explained the law and its usage in full, designed for corporate laywers.

    An art law site that agreed with the original and clearly defines what is and isnt work for hire, ran by OSLA, headed up by a professor of law specializing in Arts and Entertainment.


    By their powers combined, these are..."Random Websites"!

    Im happy to not have you feel the need to respond if you want. For someone talking about preconceived notions your blantant misuse of the law and dismissal of numerous credible sources disproving your statements shows how massively youre projecting there. The last post took direct information provided by the people who make the laws and the people that uphold them and say exactly what I am saying and you still somehow know better.

    ...yes. And then that, and the other sites provided, all go on to say that the distinction of it being work made for hire just needs to be made. Its literally saying the person needs to know and agree that its work...made for hire. Because of course it is. Thats the kind of work youre doing. Its distinguishing between commissioned work done for personal use and commissioned work done for hire, as part of a larger work.

    Take a second and honestly think why this law would exist otherwise? Why would there even be a law in place about a specific situation like this if all thats needed is an artist saying they relinquish rights? By your own definitions, it would have no place or purpose. By the one Im showing, it absolutely does.

    Im trying to make sure people that do commission work cover their ass and youre calling it ulterior motive? Youre giving your opinion of the law, backed by...pretty much nothing at this point, while dismissing other "opinions", acting like these laws dont exist and in the end it could honestly make artists lose copyrights by not retaining rights after you told them they dont need to worry about it. You dont have to take my word for it. I could care less if you do. I dont uphold the law, and like I said over and over...always get everything in writing exactly as you want it, no matter what.

    But get out of here with that smug, condescending sheep. By no means do you seem like anything but just another person spouting an opinion while acting superior to the idea. Youre helping no one and nothing by dismissing information that comes directly from sources I guarantee are FAR more credible than your "opinion" of the law.
    Last edited: Apr 25, 2018
    Tuomo L likes this.
  5. Tai_MT

    Tai_MT Veteran Veteran

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    Personally, I don't care so much how it works. I do know what I want if I were to commission something. I typically ask about a price for "exclusivity". I outline that I'm typically looking for the rights to said piece of work for about 10 years. That means, they can't post it anywhere, use it for portfolio, or resell it. However, I always put in there that they retain the rights and after the 10 year deadline, rights revert to them and they can do with it as they please. By, "retain the rights", I mean that they still obtain credit for the artwork anywhere I would use it and an advertisement for their website or store pages, should they want it, anywhere I display their name.

    Not all artists are amenable to these conditions, and that's fine. But, if you're going to commission artwork, you need to set some guidelines for yourself and for the artists. Tell them exactly what you're looking for, work with them on getting it, and be reasonable. It also doesn't hurt to simply turn them down if their counter-offers aren't what you're looking for.

    What I would do is simply draw up a contract after negotiations are complete. Maybe take it to a lawyer and ask if it's legally binding in any way, and get it signed by both parties, providing several copies for lawyers and each other, as well as a public copy. This is harder to do over the internet, for certain, but it's always better to have some form of legally binding contract than a series of e-mails.

    But, maybe my advice doesn't really work. I tend to think of things more as a "business" and less as "amateur devs just trying to get some stuff commissioned to make a game". I tend to think further ahead than that. I'd actually be operating under a "business license" for tax purposes if I were releasing Commercial Games, so I'd have a lawyer budgeted in there for commissions like that. But, I'd also be paying for copyrights and trademarks.

    I think if you're just not interested in "running it like a business" and merely as citizens making transactions between each other, it's probably fine to just say, "hey, I'm looking for this, what are your terms, what will it cost, and what kind of exclusivity do I get for the money?" and then just print the e-mails as completely as you can and save digital copies in case you have to take said person to civil court for whatever reason.
    Tuomo L likes this.

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