The world (of rights) is a complicated place

[Eero Tuovinen]

Now it sounds to me like there's something else at work here in the RPG industry, because so many people think this model is so abusive.  So what's wrong?  Because the contract as described here isn't at all abusive intrinsically.  And as far as I know, this is the normal model for a serious publishing house.  So it sounds to me like the RPG publishers don't work this way.  What's different?

There is a difference. Let me outline it:

Traditional publishing: The company leases right to print and sell printings of the IP. Exclusive as long as certain minimum effort (the work is kept in print, mainly) is kept up. Lapses when company interest ends. Payment usually as percentage of sales.
Game/comic publishing: The company buys all rights to the work, including rights to print, sell, licence, change, twist and use as toilet paper. Never lapses, as the company is now the owner of the work. Payment usually once, based on length of work.

Of course the latter kind of contract could work in theory, but I wouldn't go with it unless writers started to develop huge communes of dozens of creators who pooled their talent in offering works to the companies. That way the expected sales could be calculated realistically, and the payments could be shared between the lucky and unlucky. Unlikely, to say the least.

This business model is deemed so difficult that certain American courts have already judged against such contracts. Can't bother to dig up the details, but search about the rights to Captain America should bring up some detail. I expect that when comic industry becomes mainstream the creators will simply desist from accepting this kind of contract. That's how it happened in the mainstream writing business during the 19th century.

You're right that the normal publishing contracts are just fine ethically. I for one can't wait to get one ;) Overall, I kinda like the mainstream publishing scene from the viewpoint of an author; hard competition, talent is valued, and the writer is the king in the final calculation.

[Tav_Behemoth]

Here's the contracts page of SFWA:
http://www.sfwa.org/contracts/

Follow the links for sample contracts for different kinds of publication, and for  the author's bill of rights.

Let me lay down some basics:
An author begins with all rights to their work. It is necessary for the author to transfer some rights to the publisher in order for them to publish the author's work; usually the rights are transferred in exchange for some kind of renumeration (cents per word, royalties, etc.) Without this transfer of rights, the publisher's edition of the work is an illegal unauthorized reproduction.

The basic right the publisher needs is the authority to produce and sell an edition of the work. In fiction publishing, the fundamental unit is "first North American serial rights" -- the right to bring out one edition of the work which will be sold in (more or less) the U.S. and Canada and which can go through multiple printings.

The publisher may request additional rights: for example, the right to publish the work in another market; to translate it into another language; to license the work for film, television, etc.; to publish it in other editions (on the Web, in a reprint anthology, etc.) The author may well decide to assign these rights to the publisher -- but because they begin with all these rights, they can require that the publisher pay extra to obtain extra rights.

Work for hire is a specific legal doctrine; when it is in force, it sets up a situation in which, from the beginning, the author has no right to their work. Everything they create is fully owned by the publisher that hired the writer to produce the work.

Work for hire is regrettably common at the upper echelons of the RPG industry and in "sharecropped" science fiction and fantasy writing (Biggest Fontus's BRAND NAME BOOK by Underpaid Littletype).

Work for hire is an efficient solution to two problems:
1) Dealing with the complications of intellectual property in a work that is likely to incorporate creative contributions from many previous and current authors, and to lead to other derivative works in the same genre in the future

2) Making money for the publisher that would otherwise go the author.

#1 is a knotty problem; like I say, I know the SFWA has paid attention to this, and this weekend I'll look into what they found to be creator-friendly ways to handle situations in which multiple writers work on concepts originated by someone else. (I'll also see if any SFWA members have paid particular attention to contract and work-for-hire issues in the RPG biz).

#2 is a not-very-difficult problem. Many RPG authors do not have previous publishing experience, and are often so happy to be published that they might well sign a contract that did tie up all their rights in exchange for a flat fee. RPG authors are often low-status, unable to negotiate from a position of strength and lacking an organization like SFWA to give them collective bargaining power and influence. So it's relatively easy to make sure a publisher gets the maximum profit potential out of their deal with a RPG author.

But a work-for-hire contract removes the guesswork. Let's say your author creates a fantasy world and brings it to you to publish. If you can get them to sign a contract that sets up a work for hire situation, you own their work and you never have to worry about their rights again. If you're in a position to make their campaign world the most lucrative videogame and computer license in history - you're golden, the author never gets to see a cent. If you decide it'd sell better if the arch-enemies were changed from corporate profiteers to drug-crazed eco-terrorists, no problem; the author may squawk, but they have no legal recourse.

Hmm, I sense some rhetoric setting in, so let me move to the opinion phase:

Work for hire is the enemy. There are good contracts and bad contracts; both provide for some more-or-less fair transfer of certain rights for specific renumeration. And then there's work for hire, which takes the whole ball of wax, and which is properly and strongly reviled.

I haven't seen your contract, Chris, but I've seen other textbook contracts, so I'm guessing it was just a strongly restrictive "standard" cotract, not a work-for-hire arrangement. (The words "work for hire" are usually present in the latter; I'll post more later about this).

I have seen work-for-hire arrangements in the RPG biz; the publisher justified their use by 1) that's the way it's done around here and 2) it's too much trouble and legalese to draft a creator-friendly contract.

I think we have the power to change both of these: 1) by public pressure on those who use work for hire and praise for those who don't, and 2) by drafting and encouraging the use of a model contract that handles the knotty issues in a reasonable way that's friendly to the legitimate interests of both publisher and creator.

[GaryTP]

Hi All,

Saw this post when it first went up and decided to sleep on my reply. I'm always able to ask myself difficult questions better that way. (fyi, this is a long post (which I don't like) but it has a happy ending (which I do like.)

First, a bit about different types of rights, and second what I'm now going to do.

Contracts are used to define relationships between two or more parties (including their rights) usually enforceable by law. They help clarify ownership, time periods, payment methods, exclusivity or non-exclusivity, etc., etc. They protect both the business and the author/designer/freelancer.

Publishers (large, small, games, books greeting card, etc.) all do their contracts separately, depending upon how they wish to run their business.

In short, book publishers generally try to buy rights for the length of publication only. Stock photo houses have two tiers of rights-buying, rights-managed and non-rights managed (same thing as them buying full rights). Greeting card companies fully purchase 90% of their content, licensing the rest for limited times from large IP companies like Disney, or individuals with a unique style/flavor. Board game companies usually may buy full rights, or rights for a limited amount of time plus royalties for the life of the product. Puzzle companies usually purchase rights in specific year increments. All also purchase by country and distribution channel.

Many small operations purchase all rights to keep it simple and legally protect themselves. It keeps business arrangements from getting messy down the road. Purchasing rights keeps the legal issues clean, the one who has the rights at that moment is the main party involved, and is obliged to defend it from encroachment, theft, etc. (I believe someone said this earlier.)

Publishers all have different goals, depending on how big they want to be, their industry and business knowledge, and how deeply they care about the business and people they work with.

They may want to:
only be an outlet for their own work.
make a personal statement
build up their collective IP value over the long term
have control over every aspect of their business
be known as an innovator
help others
serve a single type of consumer
server multiple types of consumers
survive
make money
etc.

Note: IP is intellectual property, and that is the issue. For the writer or designer the work represents a bit of themselves. Their personal brand and their livelihood (not to mention their "baby".)

Being being both a designer/writer and a person running an LLC (two different entities), I need to keep separate the wants and needs of the individual and the wants and needs of a business.

Purchase limited rights.
Purchase limited rights for a certain time.
Purchase rights for the length of publication.
Purchase single or multiple format rights only.
Purchase exclusive or non-exclusive rights.
Purchase all rights with reversion
Purchase all rights forever

The trouble comes when you wish to co-design a product with someone. It is then that the rights issue becomes muddy. It is then doubly important to show due diligence in how you aquire the rights.

In the interest of Goldleaf Games, LLC, we wish to pursue out of the mainstream product development, I've rethought my companies stance on contracts. I was brought up in a large corporate environment, and dealt with artists and writer contracts on a day to day basis, as well as several patent issues. This got me to behave in a certain way towards contracts. As a person I'm very open and trusting. I spent years working in a creative thinktank, freely sharing ideas and lending assitance where needed. But then I was given much more responsiblity on the legal side of the business. And as a representative of a business, I was trained to protect the business. (As all you designers and writers should protect your own rights.)

But I've always had the ability to see a situation from two or more perspectives and be able to give them equal ground. That said, all this discussion has made an impact on me.

I won't discuss in detail what type of contract I'm awarding Eero for the project I recently posted on these boards, but suffice it to say, I'll construct it in a way that will allow him (and myself as Gary Pratt, not as Goldleaf) to retain shared rights after length of publication ends. He'll not only receive royalties, but will have equal ownership and decision rights with myself on anything pertaining to the current project we're about partner on, once Goldleaf Games has stopped publishing it.

Thanks for letting me think and talk/type this out.

Gary

ps. Anyone needing help with a contract (writing, specifics, protecting your rights, etc.) can PM or email me. I'd be glad to help.

[GB Steve]

Regardless of what definition you eventually come up with (and given that all games seem to be discussed here, I'm not sure it matters), you'll still be mostly known as the Forge, rather than indie-rpgs.com .

Even so I think you should redefine Indie to mean what you want it to mean, because the name is hot. And hot names are good.

[madelf]

Clinton,
Thanks for the clarification.
It seems you feel that as long as the creator hold rights at least equal to the publisher, then the publisher would be creator-friendly. That seems reasonable.

The other argument (or perhaps discussion would be a better word) about open licensing is one I'd love to have with you, as it's a subject I'd like to put more thought into. Perhaps I'll drop you an email a bit later, when I've got my own mind sorted out more)

I'm going to be watching this thread closely, as this issue of rights is one I've tried to sort out before with little luck.

I've actually taken a stance on the side of work for hire in the past, on the basis that it does simplify all the issues nicely. And that there is really nothing in the concept of work for hire that prevents a contract from re-assigning certain rights back to the writer if the contract is set up to do so. That seems to be a common impression, that work for hire is automatically an attempt to screw a writer out of everything, when a work for hire contract could have nearly as many options for how it is used as any contract. I've even argued that a "friendly" work for hire contract could treat the writer as well, or even better possibly, than an "unfriendly" standard contract (for instance, I feel a typical "all rights" contract could actually take away more rights than a generous work for hire contract that was worded to assign certain rights back to the writer).

I'm not set in my opinions on this by any means, but so far I've had difficulty finding anyone who could get past the "work for hire is eeevil" stigma to really discuss the specifics of something that would work better for multi-creator works than a generous work for hire contract. I'm hoping for better here, and I'll be keeping my fingers crossed.

Now I'm off to look over that SFWA link.

[madelf]

Looking at the SFWA site wasn't much help.
The stuff they're talking about is inherently different than my hypothetical situation (and most RPG freelance writing). They are looking (without exception, so far as I could tell) at situations where the author is the sole source of the particular piece of writing in question. But in RPG publishing, that will seldom be the case. Only where a publisher was buying a complete work from an author to publish without further development (or with development only by the original author), would any of the contracts on the SFWA site be applicable.

In RPG publishing it's far more likely that a writer will be hired to expand on already existing  material. There is generally a sizable amount of work previously created by either the publisher himself or another writer from which the new material is derived. It is also very likely that other writers still, will be expanding on the material the current writing is creating. In honesty, I can't see how it would be possible to allow the writer all rights to the work in such a case. If it was possible, I don't think it would be advisable.

In such a case, how should the publisher handle it? My best guess is to transfer copyright to the publisher, while leaving other rights to the writer. Work for hire would seem to be the ideal choice for the publisher, as with an ordinary transfer of copyright, the copyright will revert back by to author after 35 years (which wouldn't normally be a big deal, but if the publisher has grand dreams...who knows - look at the struggles DC Comics has gone through over the copyright on Superman reverting to the descendants of the original creator as an example of why a publisher would rather not have that happen).

Now I maintain that even with a work for hire contract, the writer can still be well treated. They could be credited as the author. They could receive royalties. Naturally they should get paid a higher rate in compensation for not having the copyright revert to them. They could keep the rights to any rejected concept work to adapt to their own purposes (so long as references to the publisher's IP is removed).

I honestly can't see how a practice like this would be terribly "unfriendly." So the idea that a publisher doing this sort of thing is somehow wrong... bothers me slightly. Labeling these people as "Creator-Unfriendly" bothers me even more.

[greyorm]

Wouldn't that all simply fall under the various laws covering copyright protection of derivative works?

[madelf]

Wouldn't that all simply fall under the various laws covering copyright protection of derivative works?

A question I've asked myself. In my opinion, copyright law in the area of derivitive works is far too vague to depend on. Even if it weren't, it doesn't seem to be a solution to this particular issue.

As an example...
I write my game "Tales of Angor," with a more or less complete setting & everything. I then hire someone to write a supplement. That's a derivitive work. I could theoretically allow the writer copyright to the portion of that work that is not derivitive of my prior work, but it opens up issues of what is and is not derivitive, of who holds the copyright to what... it opens up potential for misunderstanding. That's not really good right from the start.

To make things worse, I then hire another writer (perhaps the first wasn't available, perhaps I like the new guy's writing style  better) to do another supplement. If I left all rights including copyright on the first supplement to the first writer, then my new writer can't use anything the first guy wrote, as I don't have the right to let him (since I don't hold the copyright on the portions that are not directly derivitive of my work). So he can only use my original works to develop from, which makes it a little tough on him. He can probably work around it, but what if something in that first supplement is critical to future works (maybe I'm heavily into metaplot). At that point, unless I can re-negotiate with the first writer I hired (and maybe he's mad because I didn't hire him this time around), then I'm screwed. I've just crippled my product line by not looking ahead and getting the rights I need up front.

This is why publishers want all rights. They're not trying to take advantage of writers, they're just trying to cover their ass.

[clehrich]

Hi,

Just a brief note.  Yes, my contract was not work-for-hire.  That clarifies the whole thing from my end.

Thanks!

[greyorm]

I see what you mean, Calvin, that would be problematic (and I agree about the apparent vagueness of laws covering derivative works).

Still, it occurs to me that, contractually something could be worked out to the benefit of both parties, rather than the company trying to cover their ass, and screwing the writer over in the process.

For example, Troy Denning, creator and author of the Dark Sun campaign setting, has attempted to buy his creation back from Wizards of the Coast a number of times over the years...with cash. He has been turned down every time he has tried. Is this because DarkSun is making the company money?

No; it's a dead campaign setting, Wizards has not been and do not plan to publish anything for it, it is making the company NO money whatsoever. The setting and all that has to do with it, is languishing static and quiet, officially untouchable under Wizard's control. In other words, Wizards is "sitting on" the property.

To me, this is an atrocity. There is absolutely no reason a creator should be denied the right to publish and expand on his own work, especially given that the company has done nothing with the material for many years (and will not be doing anything with it).

I'm sure the reason they did it initally was to cover their ass, as you say; but I believe you would agree that the situation now is about more than simply protecting themselves.

Rant follows:

I really, really, really don't care about all the arguments that hinge on the idea that "companies have to protect themselves". My reason for this is simple: more often than not, it is the creator getting screwed by the company, not vice-versa.

This supposed "protection" is a boogey-man, a convenient mask of sympathy-production over various tactics, power-plays, and profit maximization...they are, at best, an excuse. Even if fervently believed.

All such contracts are weighted specifically in the company's favor, and often in such a way that the individual has little legal recourse when the company chooses to abuse that contract for their own gain.

Most especially when they claim any changes made to protect the individual equally under such a contract are "too broad" or "leave them open to litigation" (regardless that their own contracts do the same to the individual).

I have personal, direct experience with this situation, and this is why I personally will never, ever sign any sort of contract like this with any other entity ever again, for any reason.

Between a company and an an individual, the individual needs more protection from the company than the company does from the individual. Why? A company has assets, legal protections and defaults an individual does not have, and does not get under the American justice system.

In my case, the company has my money, and I have the debt. Great deal for them, eh? What did they say when I supplied the changed contract to them? "No, because that leaves us too vulnerable to abuse of the contract." And what happened? Because of the legal loopholes involved, which would have been closed had the requested changes been accepted, I have no recourse against their failure to uphold their end of the bargain.

Moral of the story for me: NEVER believe a company's "Trust Us, We Promise" smile, I don't care how "respected" of a company they are, either, or what their track record is like (or what they tell you it is like).

In fact, even if you know they are honest people...well, everyone is honest, at least until the chips are down, then few people have the strength of moral character to continue to be so. Really? Yes.

Trust and promises can be easily broken, and very few people "plan" to screw you over, even though they will if necessary (ask them, however, and they are honest and trustworthy...but extenuating circumstances...). Hence, ALWAYS get a contract in black and white that details your rights and recompensation: and if they flinch, get the hell out of there.

Anyone who flinches when you mention protecting your own rights knows exactly how they want to screw you over, regardless of how they phrase it -- "just protecting themselves" is never just protecting themselves in such a case, no matter how often they repeat it.

Rant over.

So, as you can see, I could really care less about the company protecting itself. In this market, the individual has to be far more concerned about themselves than whether the other guy is getting screwed in the deal. Unfortunately, that situation is also no good for both involved parties.

As you can see from the above, the company might have a valid reason for protecting themselves, and they don't "mean" or "plan" to use those protections to screw over the creator. But such protections do get abused.

So, I think the current publisher-ownership model of the RPG market is very badly broken, as it is in other areas (for example, slightly differently as it exists in the music business).

There must be a better way for publishers to interact with their creators, a different sort of contractual arrangement that serves the needs and rights of both parties, because the climate of distrust and arguable misuse of contractual arrangements such supports, neither possibility is very appealing.

I am certainly open to hearing suggestions.

[Tav_Behemoth]

Re: the SFWA - although the stuff on their site doesn't cover franchise novels (where a writer works on a concept developed by another author, which may then be developed further by other writers), I know they have a committee set up to deal with the relevant issues. Will post more when I know about it.

Re: work-for-hire, to be sure there are some ways to do it that are more friendly than others - but I believe in the importance of the author's bill of rights. Work for hire is fundamentally incompatible with some of the most important provisions, such as creative control ("the final say on all changes").

I'm very sympathetic to your position, madelf. There are lots of ways a publisher can get screwed by an author; a publisher has a legitimate interest in being able to continue to develop a line of products; and none of us are in a position to maintain a legal staff to help sort out the intricacies of contract law. I don't think anyone here is setting out to be creator-unfriendly, and I won't go around harassing people with that stick unless I have a carrot ready to hand: a model contract that handles the "franchise" issues cleanly and is friendly to both parties.

But I strongly disagree that all publishers who operate by work-for-hire are just covering their ass and not trying to take advantage of writers. Like I said, work for hire serves two functions: it deals with knotty issues of intellectual property, and it scarfs up a bunch of potentially lucrative rights that would otherwise default to the author.

Not having to pay the author anything when you produce a translation of their work (whether to a foreign language or another system like d20) is to the publisher's advantage. Not having to cut them in when you strike a licensing deal with film, TV, video games, etc. is to the publisher's advantage. And setting up a situation in which you get all these rights as a condition of doing business, because "that's how it's done around here", and not having to haggle over them as individual line items on a contract or pay the author more because you want these rights, is to a publisher's advantage.

Good news is: having authors eager to work with you and happy about your way of doing business because you are a creator-friendly publisher is also an advantage. And it's an advantage to have the extent and limits of that friendliness set by a legal document ahead of time, so that you both know what you're getting into and are both protected if things turn sour.[/url]

[madelf]

Greyorm,

My only suggestion is that we (publishers, writers, artists, all of us) stop worrying about the type of contract and start worrying about what's in it. And then get past the idea that anybody is out to screw anybody, because in most cases they're probably not. Then maybe we can come up with something that works for everyone.

In any situation where the writer is not the sole creator, there are always going to be things the publisher needs (not wants, not is afraid the writer will use against them, but needs) in order to do their thing and expand the product line. That will have to be balanced against the ideal situation for the writer and compromises will have to be made. As long as the writer is being treated fairly by the publisher, and is being compensated adequately (and only the writer can decide that for himself) for the rights they do give up, then it shouldn't be a reason for animosity.

That's what I keep saying. It doesn't have to be all or nothing. It doesn't have to be "all rights stay with the writer" or "all rights are taken away from the writer." There are nearly infinite possibilities for compromise in between., regardless of what type of contract is involved.

But I don't think that it will ever be possible for all situations in RPG publishing (in particular) to allow the writer to keep all rights. In the fiction market it's easily done. Rarely is a publisher going to have a second writer expand on the work of a first. But with RPGs it happens all the time. Ideally I would say the writer should receive higher compensation in exchange for giving up more rights, but sadly RPGs generally don't have the sales required to meet, much less beat the rates for mainstream (or even genre) fiction writing.

I don't know the situation with the Dark Sun setting, I'm pretty much completely unfamiliar with it. But let me play devil's advocate, and ask some questions that come to mind. Is Troy Denning the only author? Is it possible that WotC is concerned with how they separate Denning's contributions from the rest of the setting? Is he trying to buy everything, or only his stuff? Are there contract issues with other writers that are causing difficulties? Does WotC have future plans for the setting?

And even if the Dark Sun issue is an atrocity, you're talking about a writer who has created his own thing (he's the guy at the start of it all & everything is derived from his work), not one who has expanded upon the work of others, which is a little different than much of what goes on in the RPG publishing industry. Even still though, I could see the issue of the work expanded by others being problematic to simply giving a portion of a larger body of work back to its original creator  (not saying it isn't the right thing to do, just that it might not be as easy as it sounds). Now, what would make the most sense (assuming they don't have some plans for Dark Sun we aren't aware of) would probably be for WotC to just sell Denning the whole kit and kaboodle, making him the new owner of the contracts for the later work by others. Then he's the owner of the whole thing, and can do whatever he wants with all of it. But even that leaves the other writers twisting in the wind. So like I said before, it might not be as easy as it sounds.

I'm sorry to hear about your own unfortunate experiences. Sadly this proves that there are, indeed, those who screw other people over as part of their business plan. But I believe insisting that all (or even most) publishers fit this mold is every bit as foolish as claiming that none do. Certainly there are bad publishers. There are also good publishers.

As far as the individual needing more protection than the company... in this little niche industry, very often the company is an individual too. At most it's a handful of individuals. The corporate monolith may exist in RPG publishing, but hardly in large numbers. In most cases it's every bit as vital that the publishers have the protection they need under the contract as the writer.

And that's the important part. The contract. Both parties need to understand what's in that thing. I hear stories about writers signing off all their rights without realizing it and I just shake my head in wonder. Don't they read it? When I sign a work for hire contract for art, I know what I'm getting into. It's my choice. If I regret it later on, I've got no one to blame but myself. So I feel bad for these folks that relied on assumptions and good will, and signed a contract they didn't want to. But the sympathy is limited. The writer has to have some responsibility to ask for what he wants too. The publisher isn't going to put something into a contract they don't want there, but they may be willing to compromise if the writer asks. If not, then the writer has to decide... sign away things I don't want to, or go elsewhere? If they decide to sign, that doesn't make the publisher a monster.

I do agree though (with anything of any significance), that if a publisher doesn't want to sign a contract... run. They're not a publisher, they're an idiot. The contract is there as much for them as it is for the writer. If they don't know enough to want a contract in place, then they don't know enough to be publishing a book.

The contract is the most important part of the whole deal. Without it there is no deal. With it, the writer and publisher can have anything they agree to. If there's a contract, and both parties understand it, and both parties are happy with it, then there is nothing but fairness regardless of who owns what. No one can take unfair advantage of anyone.

I think that's key. We should stop concentrating on who's the bad guy and who's screwing who, and see if we can identify a list of rights that could remain with the writer without crippling the publisher. Then, I think, we'll be on the right track.


Tav... I'll get to you in a minute.
;)

[daMoose_Neo]

Really, no one is the bad guy, no matter the size.
We're all looking out for ourselves, we're all concentrating on what we need, the company is no different.

Hypothetically, Big Company A hires someone to do the work they need. BCA is a large company, many many distribution chains, tons of popular novels and games in print and is beloved. And, at the end of the agreement, the author gets stiffed on the contract. The author bemoans his situation and cries at not being paid. Yes, it sucks. Alot.
However, unlike us, BCA has:
- Salaried employees with their own contracts with the company
- Offices and over head associated with that
- Distribution and warehousing costs for their massive inventory
- The cost of printing the work in the first place
- The mammoth marketing campaign used to launch the game

BCA makes money, they sell product. Money and profit are two different creatures, however, and many publishers aren't neccesarily profitable. I'd say they larger they are, the less actual profits they make. They can cover everything major alright and possibly expand slowly, but somethings will fall through, and a contribution to a book can fall through, especially when rent is due, shipping is due on the product shipped to distributors, distributors aren't paying etc etc etc.
BCA needs to cover thier own ass as much as we, the little guys do, possibly even more. Yes, they have assets, assets that are valuable to them and priceless if lost. You can actually sue someone for anything, as we have been told of larger corperations, and someone with a beef and a leaky contract does open them to a lot.

The more you have, the more you stand to lose.

[madelf]

Tav,

I'd love to hear any information you can find out on the "Franchise Novel" thing (good to finally have a name for it). I'm really interested in seeing what can be done to make that model work well for everyone involved.

I have to disagree with you a bit though. I actually think work for hire can be compatible with nearly everything in the author's bill of rights, if you think outside the box. At it's core (at least the way I see it), work for hire is about getting permanent rights to create derivative works (ie: copyright). Anything past that is just icing on the cake and sugar is bad for me anyway. It's important to remember that a contract is powerful, it can do almost anything. Just because work for hire defaults all rights to the publisher doesn't mean he can't assign some of those rights back to the author.

Looking at it that way... I can give the writer almost anything. Your example of creative control is more an issue for the franchise model than it is for work for hire. I couldn't give a writer truly complete creative control over that type of work with or without a work for hire contract, because something like that has to have an overseer who makes sure all the different threads tie together. If that wasn't the situation, if you were the first to establish a game setting for instance, I could certainly allow you full creative control within a work for hire contract. I also could theoretically cut the writer in for an extra cut on translations. I could even cut them in on the subsidiary rights (though the franchise model would make that problematic again).

Beyond the issue of copyright ownership, I think everything on the list could be worded into a work for hire contract. On the other hand, I can also see situations (particularly with franchises) where not all of those items could be included, even with a first rights contract.

And for the record, I never said (or didn't intend to anyway) that all publishers who use work for hire contracts do so only to cover their ass. I'm sure some use it for less wholesome purposes. I just don't think that a publisher should be judged too harshly for the type of contract they chose to use, until the actual terms of that contract are looked at. A work for hire contract (or any other contract, for that matter) can be used with the intent to screw over a writer, but it doesn't have to be.

Also for the record, if I ever start hiring others to develop my stuff, I want that advantage of being known as a creator-friendly publisher. That's why I've butted my head against this wall before, and why I'm doing it again. I'd like to find that perfect compromise, just in case I get the opportunity to use it.

[greyorm]

Calvin,

It seems to me that you missed my actual points in your apparent desire to defend yourself/publishers from criticism (real or imagined). For example:

My only suggestion is that we (publishers, writers, artists, all of us) stop worrying about the type of contract and start worrying about what's in it.

It doesn't have to be all or nothing.

And then get past the idea that anybody is out to screw anybody, because in most cases they're probably not.

Did I not talk about all these topics?

So, hopefully more clearly this time: yes, we can probably agree that no one is "trying" to screw anyone (at least, we believe that to be the case in most situations, and it may in fact be the case in most situations), but the current contracts allow for abuse of the creator by the publisher.

The ability for abuse to arise in the future, regardless of any good feelings about or trustworthiness on the part of the publisher right now, is nothing less than a bad situation for the creator. It is also a bad situation for the publisher, because creators begin to look at publishers as monolithic entities with sinister, underhanded motivations.

These holes need to be closed for everyone's good, because they are exploitable at the creator's expense (whether or not they will be in any specific instance is an entirely seperate issue, and completely irrelevant to the problem).

Is Troy Denning the only author? Is it possible that WotC is concerned with how they separate Denning's contributions from the rest of the setting? Is he trying to buy everything, or only his stuff? Are there contract issues with other writers that are causing difficulties? Does WotC have future plans for the setting?

I cannot factually answer most of those questions, except for the last, which is, "No. They do not."

As for concerns about "other writers for the setting..." This is clearly not an issue for Wizards in this situation, either. They've sold off other shared-author properties without batting an eye (Ravenloft and DragonLance, for example). Obviously, whose rights go where are NOT at issue here, or they would have been in those other sale situations as well.

But this issue is only a side issue to the main thrust of my statements: Wizards did not intend to "screw" Mr. Denning in this fashion when the contract was first penned (or we can likely assume they did not), but the fact of the matter is that they did eventually "screw" him, for whatever reasons they might have, because the contract was open to such abuse.

This is the main problem.

But I believe insisting that all (or even most) publishers fit this mold is every bit as foolish as claiming that none do.

I made no such insistence, Calvin. My point was that with the current situation: good, bad, ugly, whatever, you can't be careful enough. The individual must assume that all publishers will be bad publishers, regardless of the reality with any specific publisher, simply to protect themselves.

There is no magical sign hanging above a company's head, or magical viewing glasses that will let a creator weed out one from the other, and the bad will certainly not tell you they are bad, the good will not tell you that five years from now an unforseen situation will arise and that conflict will make them into a bad guy, so you must be careful and treat all situations as potentially abusive.

Companies certainly will do so and do so; otherwise what need is there for these contracts created to "protect the company" from possible behavior by the author (regardless of the author's trustworthiness, etc)?

It swings both ways, you see.

As far as the individual needing more protection than the company... in this little niche industry, very often the company is an individual too.

You own your own company, as do I, so I am surprised that are you are not aware that a one-person company is still a company, and (more to the point) regardless of number of employees such an entity has different legal recourse and protections in any trial than does a private citizen. Owning my own (one person) company, I am aware of these things. You should be, too.

Companies can "get away with" things individuals can not, and leave no human being accountable for the situation, even if a human planned it, as "the company" is the legally responsible entity rather than the individuals who are a part of it. This is partly to protect business owners from having to deal with massive debt if the company goes under, or civil lawsuits filed against a company ending up on their own personal record when they are part of the company...but this is also wide open to abuses if you know the ins-and-outs of the situation.

I think that's key. We should stop concentrating on who's the bad guy and who's screwing who, and see if we can identify a list of rights that could remain with the writer without crippling the publisher. Then, I think, we'll be on the right track.

Exactly. Hence my call for solutions along those lines.

I highly respect your desire to create a mutually beneficial publishing arrangement with any possible authors or artists who will work for your company, so let us get past both "Must...defend...publishers!" or "You're just a company hater!" attitudes.

You have said repeatedly, "You see how that is compatible..." well, then, show everyone else. Let's see how you would create a work-for-hire contract that includes all those items you say are not incompatible. A friendly challenge, then: put your money where your mouth is and give us the contract you believe exists therein!