Pitfalls in Commissioned work, Copyright and Ownership.
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.