Copyrights question

So I have some custom made artwork for a game, produced by a professional artist with all the agreements that I am the owner of the art in question.

My understanding is that this is pretty much enough, so that if someone rips this art and starts using it elsewhere(this is a concern, it is a HTML5 game) I have legal recourse to make them take it down or work out an agreement.

I recently read this: http://www.gamasutra.com/view/feature/3546/hey_thats_my_game_intellectual_.php which seems to reinforce that opinion, but I would be curious to hear what others thoughts/experiences are on this topic.

The article I linked mentions that you can also register your copyright(I am in the USA), does anyone know if that is normal practice for things like video game art?

The code I am not too worried about, most of the important stuff is server side.

 

You're much better off speaking with a lawyer, but your article sums it up pretty well:

Basically it becomes copyrighted by the creator as soon as it is created (and your agreements with the artist then transfer that copyright to you), but if you register it then you have some additional benefits.

Some of the notable benefits that stick out to me according to this site are:

 

One thing that I remember from the SCO/IBM/Novell battles was that copyright assignment had pretty specific requirements. You might want to check with a lawyer to make sure that your contracts are air tight. It sounds like you have it covered but I'm not a lawyer. The last thing you want is your art to be misappropriated and then have the artist refuse to do anything about it (if they still held copyright).

 

Yeah, points taken regarding talking to a lawyer, unfortunately I am having a bit of difficulty finding a good copyright lawyer in regards to digital art. I have a lawyer I use for real estate and other tax related finances but this is a whole new ballgame to him, will keep looking. I just figured folks here had probably dealt with it so might be able to offer some points of view. I'm not looking for air tight, just tight enough to scare sleazy cloners away.

 

You need a lawyer.

In my understanding, you own copyright to a thing you create the moment you create that thing, even if you don't "register" it. So registration is not necessary.

Ripping your art and reusing it in another game would be a violation of copyright.

Also, just in case:
Speaking of contract work, there's a right "to be (known as) the creator of the work", which may be non-transferable depending on the country. Not sure if it is recognized in USA, though. Meaning you can't claim you made something that was created for you by someone else, even if you own publishing rights to that thing.

 

If your contract says that you have ownership of the art and not a royalty free, exclusive, perpetual license, then I think that you are on pretty solid ground to send off scary letters and DMCA notices. You can get in trouble for sending out false notices if you don't genuinely believe that you have the copyright. I would ask a lawyer about putting a direct assignment of copyright clause in any future contracts.

 

When you submit a takedown notice for copyrighted work, most companies ask for official, documented proof of copyright, such as a registration notice from the U.S. Copyright Office. Without the documentation, they won't take any action, even though technically the work is copyrighted as soon as it's created. (Which is pretty much what Acissathar wrote previously.)

 

This probably is stuff that should be addressed in the EULA of the game too, right?

 

At the very least you can get a poor man's copyright by taking your intellectual property to a public notary who can attest to seeing the document in your possession and provide a dated notarized document as proof of this so if someone was too ask you can show that you possessed it first in what day, month and year and time.

Copyright registration document would be the top choice but a public notary can, in a majority of situations, suffice.

 

Here is what I would add to the discussion:

Registering with the copyright office allows you to collect lawyer fees and additional damages. This is important, because most lawyers want to be paid when pursuing small cases. If the art is not registered, you may have to pay a lawyer and the end result could be simply the offender stops using the work, so you are out $ in the end...

Since it sounds like you did not create the art yourself, you are not automatically the author. You may only have purchased rights for use in the game, without the right to copyright it or make derivative works. The artist must physically sign away rights to you for you to be the full owner. If the artist was your employee, then yes, any work they do is yours. However, if they are freelance, used their own computer, they must specifically sign away rights, all or limited to you.

As an artist, there is a phrase called 'work-for-hire' – I personally would never sign a contract using that phrase. What it means to me as the artist is that I am not the creator of the work at all, it is like I was an employee (without any employee benefits), even though I was a freelance artist using my own computer and studio. If I did sign it, the company could actually sue me for showing the work as part of my portfolio (because I am not legally the creator) and they could sue me if I used elements, like maybe the way I draw a face, because they can argue that they are the 'creator' of that face and show the WFH contract to prove it.

As the company, certainly work-for-hire is advantageous, although a bit sleazy IMHO. Instead I would sell 'all rights' in perpetuity in all media. For the company, they can use it however and for whatever they want, but they are not the 'creator' of the work, they simply own the license to use it however they want.

 

This isn't actually correct. Work that you created (either as WFH or as an employee) you can show in your portfolio, it has been determined to fall under fair-use. Unless of course there are other, separate, legal obligations that you agreed to that preclude it, such as confidentiality or nondisclosure.

This is important, and it goes both ways. If for example, I was a programmer, and hired a freelance artist to create the main character(s) or other key art for my game, unless my agreement with them specifically states it is WFH, and rights are clearly transferred to me, that artist could sell the art to someone else, or put it up for sale somewhere like the asset store. It's not 'sleazy' at all, it can be very important to a developer of any size, to place value on their brand, and the uniqueness/usage of game.

It is important, always to spell out in detail, in contract, all the specifics.

 

This can be easily addressed by selling 'Exclusive' or 'Non-Exclusive' rights. If you were to purchase All Rights for Exclusive use in all media in perpetuity, that completely covers those cases. The artist could not resell it anywhere, but they would remain the 'author' of the work. WFH removes the artist from authorship entirely. It's nice to hear that fair-use allows display of the work, at least.

I understand that WFH has become more 'standard' and I see it in a lot of contracts. However, I never sign a contract with those words as it should really only apply to Employees, using equipment/software, etc. supplied by the Employer. A freelancer does not enjoy any of the benefits of an Employee and should not be treated as one simply to get around licensing issues.

Years ago, I did a freelance job for a Mouse company and we negotiated out WFH as well. ;-) Of course, having a giant/well-protected mouse in your work makes it pretty much impossible to resell no matter what the contract says!

 

If you sign over exclusive rights usage rights, then "authorship" becomes sorta becomes meaningless, so I am not sure what the practical differentiator is.

I have never heard of that happening. Contractual work can spell out any degree of ownership as required, there is no licensing issues to get around. Also freelancing has it's own set of benefits over being staff.

With rare exceptions (programming), I have always done WFH. If I am being contracted to create art for someone else, I don't see any reason to maintain ownership over the art, I have no use for it. (except for portfolio, but that is a given). And on the other side, If I am contracting someone to create something (art specifically) for my product, I want the ability to use it as needed. But, to each their own.

 

I guess the way I would explain it is if a freelancer develops a unique and identifiable style, they don't want to sign a WFH contract that gives authorship to a company. Since the company is now the 'author' of the work, the company can change it and modify it for new uses since it's 'their' creative work legally. If they do a poor job, people might think the artist has done a poor job and it erodes the artists reputation and style.

In theory, if a face or feature is very unique, a WFH contract gives the employer legal standing to sue the artist should they decide to draw a face or feature in the same way. As an 'author', the employer can claim the artist is stealing from them! I can't say I've ever heard that happen, but legally it could.

More to the point of why I don't like it, is that I think artist rights eroded over the years and WFH is where it started. At one point, WFH was rare and would require exorbitant fees, maybe 8-10X the normal rate. Then, it became more commonplace and accepted as more artists were OK with it. Now, it's very common and the fees in many cases are no higher than a one-time use fee.

 

I've always done WFH. It makes pretty much no sense to do otherwise as a freelancer.

You are hired to create a specific work for a specific employer. There is typically no need to use the work for anything else.

I really can't see a point to retaining ownership of work created for someone else's project.

 

Yes and yes. I've seen shady web development companies charge a boatload of money to build a website, and then ongoing maintenance fees, and as soon as the customer decides they don't want the maintenance anymore they claim ownership of the site and don't allow the customer to take it with them.

I personally won't ever contract someone to create content that isn't WFH. I'd be more than happy to grant them explicit rights to use the content in their portfolio but when I'm hiring someone to create someone for me, I'm expecting to be buying the product that's a result.

 

Another point here... there's a real reason that designers don't like WFH... it's about locking the customer in. Most Flash developers would build Flash apps and never provide the source files, only the compiled swf. The same goes for design... they're not going to give you a .psd or .ai file... just the final output because they want to force you to come back to them for changes and updates. So in addition to the above, I require the original source files when buying unique content. I believe that a designer should sell themselves on their merits, not hold customers hostage... and if I'm happy with the work that I receive, I will show my loyalty by returning to that designer for subsequent work.

I take the same approach as a developer. I provide the source code with any custom work I do and even tell the customers it's so they can make their own changes or have someone else work on it if they want / need, though I'm explicit in that it voids any warranty I have once changes are made.