I'm negotiating an agreement with an artist, who does not want to sign a Work-for-hire(WFH) agreement with me, which I had created for me by a lawyer. Having now read up on some of the issues surrounding WFH, I can understand why an artist would not want to sign a default WFH contract.

My question is, if in a contract the artist assigns to me all copyright and ownership of the artwork, but retains the right to claim or disclaim credit as the original author on all of the artwork, can I still still list the game as being created by my company, or would I need to list it as having been created by "My Company + Artist Name"?

Thanks,

Jesse

Probably. This is a country-specific.

It looks like you are writing about a part of IP law called "moral rights", also referred to as "honor and reputation".

The original author almost always retains the rights to claim credit and say that they created it. It doesn't matter if they sell the work as work-for-hire, or assign all others rights away. Generally moral rights are not transferable and not surrender-able.


As an example of these rights, imagine you programmed something as an employee. The company can say it was made by them. But you will also have a moral right to the content you created --- you can always declare that you created that work as well.

If he creates the art as a work for hire, or if he creates the work and assigns the rights to you, either way you can list it as being made for your game, AND it can be listed by the author as a work of his own creation.

My primary concern was not being required to list the author of any one particular aspect of the game that I've contracted out (Artwork or Music) on the front of the metaphorical box (which in some cases might make for a long list). Having them claim authorship, or listing them in the credits of the game is fine by me. Credit where credit is due.

My second concern and question would be: does authorship, under US copyright law that states:

(a) Rights of attribution and integrity.--Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art--
(1) shall have the right--
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
[/quote]

Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?

Also, since I apparently forgot the most important part of the post (shame on me)!

- Thank you for your quick and clear response. I appreciate it greatly.

It looks as if in the United States, an artists Moral Rights as covered by the Visual Artists Rights Act does not cover video games, so the author would not be able to prevent me from modifying the originals or creating derivative works, as long as I own the copyright. Is this correct as far as you know?

Regards,

Jesse

Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?

Probably. Ask your lawyer.

Would this prevent me from modifying the artwork, say changing the color of a characters clothing so as to be able to use the same artwork for multiple characters, if the author decides that this is prejudicial to his or her honor or reputation?[/quote]

As owner of the copyright (because it is a work for hire agreement) you are specifically granted the rights to make "derivative works". Changing colors, file formats, clothing, resolution, etc are all derivative works. If you are particularly worried, in the contract you can have the artist waive those rights you're concerned about. However, I think an artist would have a difficult time convincing a court/judge that changing the color of a character would be harmful to the artist's honor reputation.
Now if you were to cloth the character in a Confederate Flag, that might be something else. This sounds like a great "law school case hypothetical" btw :-)

Chat with your attorney and see what they say.

Also, regarding the issue of game credit.. I have signed contracts where I explicitly get the right to say publicly that I have worked on the game. (most typically, there is a clause that in the standard WFH contract that prohibits me from doing so without expressed written consent. I then have them write a side letter giving me that right as a condition of signing the agreement).

Btw, did the artist specifically tell you what about the WFH agreement you presented to them made them not want to sign it?

Btw, did the artist specifically tell you what about the WFH agreement you presented to them made them not want to sign it?

The artist seems primarily concerned with being able to claim credit, and to display the artwork on their portfolio after the game was released. They were also generically worried about work-for-hire contracts in that they would allow me to turn around and start selling non-exclusive licenses to the artwork on stock-photo sites. The default work-for-hire contract I was using did not explicitly allow the artist to retain these rights or protections. I am willing to include in the contract clauses which allow the artist to retain these rights/protections, but I needed some clarity on the terms so I didn't accidently do something terribly stupid before we started modifying the contract.

There was an additional request about retaining some form of rights in the case that the artwork was used in merchandising, but I was clear that wasn't negotiable for me. If I'm purchasing an artists services to create original artwork for my game, barring some specific rights I'm willing to give up like the right to mass-resell the artwork as-is, I want the copyright to do anything I want to or need to with the artwork in order to turn a profit with my game.

I'm curious what your (multiple persons) thoughts are on the bit about wholesale reselling. How typically is something like that brought up? Is it actually a serious problem for art contractors? Would you be willing to forgo those rights as a game developer hiring an artist? It's mostly an academic question for me, since I'd rather get a good artist at a cheap price and forgo those rights for my first reasonably sized game than hassle about it and have to find a different artist.

I'm curious what your (multiple persons) thoughts are on the bit about wholesale reselling.

That's only an issue if the contributor is getting royalties based on sales.

It also sounds like "Work-For-Hire" is a term used which explicitly implies certain rights, and it would be more or less equivalent to:
1) Have a work for hire contract which protected certain rights for the artist, including the right of authorship.
2) Have a NON work for hire contract, which transferred all copyright and ownership to me.

Both would allow the artist to claim authorship, and an additional clause to either would allow them to display the artwork on their portfolio.