Pitfalls in Commissioned work, Copyright and Ownership.

Hopscotch

The copyright and ownership by default stays with the creator.

As the paying contractor, you really only acquire a limited non-exclusive licence to use the software, artwork or music, in the implied scope of the applicable contract.

That means that if you commissioned someone to make a background for your game, then you are not automatically allowed to resell the artwork or use it in another game without the creators permission.

So, Transfer of ownership, rights and copyright need to be explicitly dealt with in the contract, otherwise it stays with the creator. Due to the cross-border nature of contract work in the indie field, it is crucial to be very specific in the contract to avoid any contradicting legal assumptions between countries.

Some fun exceptions:

• If the creator is an employee, then the rights are automatically with the company of his/her employ, however the copyright may still remain with the creator.
• If the creator does work under contract for the UK government, then the ownership and copyright automatically belongs to the Queen.
• If the artwork is a photograph, portrait or likeness of the person commissioning it, then the copyright is automatically owned by the commissioning person.

Lets get really difficult:

• If the graphic designer or programmer does the work for you privately, but is actually also employed at a company in the same capacity, then the rights to the work most probably reside with his company of employ and any contract you have with him is meaningless. (Unless his employment contract explicitly allows him to freelance in that field).

Some points to consider when drawing up a contract:

• First decide which type of rights-transfer you want.

  • Copyright with all associated rights.

    • This gives you all control, but also make you accountable for any possible copyright infringements if the creator used source material, templates or libraries.
    • Most often, the creator will want to retain some limited rights to the work, e.g. to use in his/her portfolio, etc. Make sure to define exactly what the creator may use the work for.
    • Let the creator explicitly relinquish all rights on the work created. Let the creator agree to never challenge the hiring parties ownership of the work. This is specifically important if the hiring party may consider trademarking any portion of the work.
    • Also include all draft and pre-draft work.

  • An exclusive licence without transfer of copyright.

    • This is safer for the hiring party, but the details of the rights transferred need to be clearly defined. This includes the duration, the purpose (game, sequels, promotional material, etc.), territories and media (game, print, video, etc.).

• Stick to plain English. It is best if both parties clearly understand the content of the agreement.

• Be as detailed as possible about the scope of the work.
• Let the creator confirm that he/she owns all necessary rights to the created material and source material prior to the transfer.
• Do not rely on the often stated "work for hire" phase, assuming that it implies a transfer of copyright. Courts are inclined to accept this as an indication that the hiring party has the rights to use the created work, but it does not automatically transfer copyright to the hiring party, nor give them exclusivity.
• Stay away from cool sounding legal "magic words" pulled from sample documents if you do not have a good copyright lawyer to help you. If you are not a lawyer or consulted by one, this can be very dangerous, as the subtleties and nuances of legal term can easily be misinterpreted by the layman. They will also scare off the other party. Stick to plain language and more details.

Since we are on the topic:

• Another common mistake I see is developers buying artwork from some commercial graphics/image hub. The normal licence usually has a limit on allowed distribution volume, or does not include mobile/web/software or even print distribution at all. So double check, these sites are notorious for hunting offenders down.

Disclaimer: I am not a lawyer.

Socks

I often find the cheapest way to proceed is to commission a piece of artwork, and once the artist delivers the work pay to have him whacked.

Not only is this often cheaper than paying the artist it saves a lot of paperwork. You can have people whacked for quite reasonable prices, some of the old Mafia guys will whack someone for as little as $40.

Hopscotch

@Socks said:
I often find the cheapest way to proceed is to commission a piece of artwork, and once the artist delivers the work pay to have him whacked.

Not only is this often cheaper than paying the artist it saves a lot of paperwork. You can have people whacked for quite reasonable prices, some of the old Mafia guys will whack someone for as little as $40.

Good analogy @Socks, again, it will be the whacker who gets to take all the credit, no matter how much you paid him. Without a clearly laid out document, you will have a hard time getting a court to attribute anything more than a cursory involvement of yours in the case, and the whacker gets all the front page fame plus free food and lodging for the next couple of years.

Socks

@Hopscotch said:
Good analogy @Socks, again, it will be the whacker who gets to take all the credit, no matter how much you paid him. Without a clearly laid out document, you will have a hard time getting a court to attribute anything more than a cursory involvement of yours in the case, and the whacker gets all the front page fame.

Unless you have the whacker whacked.

Hopscotch

@Socks said:
Unless you have the whacker whacked.

That would be a copy-cat action, thus an obvious copyright infringement, not a transfer.

Socks

@Hopscotch said:

@Socks said:
Unless you have the whacker whacked.

That would be a copy-cat action, thus an obvious copyright infringement, not a transfer.

It would be if the copyright records office had not burnt to the ground, accidentally ($130).

Hopscotch

@Socks said:
It would be if the copyright records office had not burnt to the ground, accidentally.

If the office accidentally burnt down before the wacker got wacked, then the original records would be destroyed leading to it all being a non issue. If the office burnt down afterwards, you would have shot yourself in the foot as all evidence of your newly acquired transfer would be destroyed.

... wait, are you trolling me or is this hypothetical situation leading up to actual legal advice, pertinent to an ad hoc situation of yours?

Socks

@Hopscotch said:
If the office burnt down afterwards, you would have shot yourself in the foot . . .

This is why I wear kevlar boots.

@Hopscotch said:
... wait, are you trolling me or is this hypothetical situation leading up to actual legal advice, pertinent to an ad hoc situation of yours?

Hold on, I can't speak now, the police are at the door . . . .

Hopscotch

I knew it!

BigDave

Such a scary topic.

So I never did a direct contract with the guys that made all the voices for Orcs.
I just have bills.

Also I use a free to use music track. I am unsure if it is a original by this creator which gave me permission via email. Or a remake.

What would you suggest to have as a minimal contract for the voice over guys over there in the US?

Hopscotch

@BigDave said:
Such a scary topic.
...
What would you suggest to have as a minimal contract for the voice over guys over there in the US?

Yes it is, especially in the "informal" world of indie development.

I have added some pointers in the original post under the heading "Some points to consider when drawing up a contract"

Here is a bare-bones sample, but as can be seen from my points above, needs to be fleshed out in accordance with the specifics of your case.

[The creator] irrevocably transfers exclusively to [the hiring party] copyright, and all rights there-under, in the work, in perpetuity, throughout the world, in all languages, in any form or medium (now known or hereafter developed).

Hopscotch

Due to some feedback I got on this thread, I feel the need to clarify my seemingly one sided advice :

This forum is primarily for developers using GS, typically the "hiring party".
Thus I focused mainly on the interests of the "hiring party". However, I did try to illustrate the possible wishes and concerns of both parties.