The world (of rights) is a complicated place

[Clinton R. Nixon]

I had a long talk with a new friend tonight, and the topic of independent games and rights came up. This may sound strange coming from a Forge admin, but I think the definition of "indie" is screwed. Increasingly, the line is unclear, and it basically comes down to "what the Forge says is indie." Considering we've got differing views here - I, for one, think much of Palladium is indie games, even if it isn't an indie company - that doesn't help.

I propose a new lingo.

Creator-owned games are those which are written and published by one person (or a small group) in which those persons retain all rights to the game. An example - Sorcerer. Creator-owned companies publish all their games this way.

Creator-friendly companies are those which publish others' games or pay others to write for their games, but allow the authors to retain all rights to their work. This is Image Comics in the early days, and, if I understand it, Atlas Games today. This also includes art. For a long time, Ron Edwards has had the policy that his artists retain rights to their work. This is also my policy, and I'm starting to think it's the only right way to go. These games, by the way, are creator-owned.

Open-rights companies publish games, but release their work under an open license. Example: well, me. Also, anyone putting the entirety of their work under the OGL.

These definitions are clear and concise. They allow no room for "are they or aren't they" arguments. They eliminate the connotations of "indie," which does have a long history in other media. And they allow for value judgments. I'll be clear myself: I have no respect for non-creator-friendly companies.

I'm sure this will garner discussion, and the following is something that will have to be done in private with Ron, but I'm proposing a complete elimination of "indie" as a useable term and replacing it with the above.

[Luke]

Clinton,
I'd much rather see The Internet Home for Creator-Owned Role-Playing Games as the masthead.

I think you're pretty much dead on with this, but I think you're missing one defintion.

That of the traditional publisher. He's got to have a name and definition in your scheme, too.

-L

[Keith Senkowski]

Clinton,

I agree with you (and Luke though I still shake my fist at him from a distance) on this.  I think that indie for some reason or another has not only gotten blurred as a definition but grabbed a negative conotation along the way as well.  It is unfortunate cause to me it works like this:

indie = punk = rawk

Keith

[Clinton R. Nixon]

I think you're pretty much dead on with this, but I think you're missing one defintion.

That of the traditional publisher. He's got to have a name and definition in your scheme, too.

"The Man"?

I kid. Let's see - the traditional publisher is defined as keeping all rights for work that he pays others to do, or gets for free. There's a few terms I'd use, the nicest of which are "creator-unfriendly" and "closed-rights." In the end, "traditional publisher" probably suffices.

[madelf]

Clinton,
I think you've got a great idea for some terms that would clarify things, eliminating any question of what you're talking about when referring to these particular types of company.

That said, I wonder if I could talk to you a little bit about this statement...

I'll be clear myself: I have no respect for non-creator-friendly companies.

Hypothetically speaking...

By your definitions (assuming I understand them correctly), if I were to expand my publishing endeavors beyond myself and started hiring freelance writers to expand upon my concepts, ideas, and current writings, and if I did not allow them to keep all rights to that writing, then I would be a non-creator-friendly company. Is that correct?

If so, let me ask you this. If I allow the writers all rights to the work they do for me, how then can I hire other writers to expand upon it? I don't own the copyright, all I have the right to do is publish. So if I hire someone to expand upon that work, then I'm in copyright violation. (IMO, this problem is a lot stickier with writing than it is with art. I believe it is much easier to leave art rights to someone other than the publisher, than it is with writing)

I've already given my own IP to these writers by allowing them to keep all rights to material derived from my original IP, but I'm left with no way to use their work for further development as I've left all rights with the writer. This wouldn't be practical. As a publisher, I would have to keep some rights, to allow me to expand the product line. But if I'm keeping the right to create derivitive works, then I'm not giving the writers all rights, and am unworthy of respect.

Now I doubt that's what you intend, but I want to try and make the point that there is a huge difference between keeping all rights from the writer, and leaving all rights with the writer. Like in every other facet of life, nothing is so clear cut, so black and white. I think it's important to treat writers fairly, and respectfully - to be creator friendly.  But I'm not sure that really has any relation to the specific rights that are, or are not, transferred in a particular contract.

(Of course, if the work was published under something like the Creative Commons license or the OGL, then I could use it along with anyone else in the world. But whether or not a publisher is ethically required to release his work under an open license is a different argument)

So, what are your thoughts on a company hiring writers to develop pre-existing IP? What rights do you feel the publisher would be required to leave with the writer in such an instance, in order to be creator-friendly? And how do you feel a publisher could best protect his ability to expand on the IP while maintaining an optimum level of respect for the writer?

[Clinton R. Nixon]

By your definitions (assuming I understand them correctly), if I were to expand my publishing endeavors beyond myself and started hiring freelance writers to expand upon my concepts, ideas, and current writings, and if I did not allow them to keep all rights to that writing, then I would be a non-creator-friendly company. Is that correct?

I get your point. What I'm saying is that you basically lease the rights to use a work. Instead of paying for work, you pay for rights, all of which the creator maintains. If you pay for the right to create derivative works, and the creator also maintains this right, then that's all cool. I don't see how the creator's lost any rights.

(Of course, if the work was published under something like the Creative Commons license or the OGL, then I could use it along with anyone else in the world. But whether or not a publisher is ethically required to release his work under an open license is a different argument)

It is a different argument, but one I look forward to having. I think it's an elegant solution, and one I'm currently using for "Yesterday's Heresies," my first supplement to The Shadow of Yesterday. I'll be paying one writer to use a pre-existing work of his, which will be placed under a Creative Commons license, like all my work. He maintains control, in that he agrees to allow his work to be licensed in this way, and all may use it.

[Tav_Behemoth]

Re: hiring writers to work on concepts created by others, these are tricky issues, but others have gone there before us. The SFWA (Science Fiction Writers of America) deals regularly with franchise novels, etc. I'll dig into how they handle it and report back - this is an issue dear to my heart!

One thing the SFWA did that was effective in stopping work-for-hire and other abuses in the SF industry was to create a model contract that pinned down the basic rights they felt were essential to authors. I think that many publishers would be happy to have such a contract; they aren't likely to use most of the rights they get with a total work-for-hire assignation anyways, and so trading the acquisition of these rights for the ability to use a tight, off-the-rack boilerplate contract that earned the respect of people who care about creator-friendliness might be a good tradeoff for them.

[Clinton R. Nixon]

One thing the SFWA did that was effective in stopping work-for-hire and other abuses in the SF industry was to create a model contract that pinned down the basic rights they felt were essential to authors. I think that many publishers would be happy to have such a contract; they aren't likely to use most of the rights they get with a total work-for-hire assignation anyways, and so trading the acquisition of these rights for the ability to use a tight, off-the-rack boilerplate contract that earned the respect of people who care about creator-friendliness might be a good tradeoff for them.

Disclosure: Tavis is the guy I spoke with about all this.

One goal of all this is exactly what Tavis mentions: I want a complete, easy-to-read contract downloadable from the Forge to use when leasing rights from an author or artist.

If I get it off the ground, the first real test of this will be my RPG magazine. Don't cross your fingers, though: RPG magazines aren't easy to keep going, so it's very much in a thinking about it stage right now. (Also, the magazine idea is off-topic. If you want to talk about it, use the Anvilwerks forum.)

[jdagna]

I think the new terminology is better than indie - frankly, I think anything would be because the term "indie" has a lot of negative connotations in my mind.  These still have some gray areas, but they can be more easily ironed out (for example, my company owns my work, but I'm the sole owner of the company).

I'm not going to comment on your attitude towards publishers.  It's your site, and you can have whatever opinion you like.

[Luke]

By your definitions (assuming I understand them correctly), if I were to expand my publishing endeavors beyond myself and started hiring freelance writers to expand upon my concepts, ideas, and current writings, and if I did not allow them to keep all rights to that writing, then I would be a non-creator-friendly company. Is that correct?

If so, let me ask you this. If I allow the writers all rights to the work they do for me, how then can I hire other writers to expand upon it? I don't own the copyright, all I have the right to do is publish. So if I hire someone to expand upon that work, then I'm in copyright violation. (IMO, this problem is a lot stickier with writing than it is with art. I believe it is much easier to leave art rights to someone other than the publisher, than it is with writing)

I just want to back CRN up on this one. I also have a particular distaste for the traditional publisher model (in this case, referring to film companies, most book publishers and comic book publishers).

For example, a freelancer is hired to work on a project. During said work, he develops a kewl new twist. In the traditional model, the publisher now owns the rights to that idea. They can exploit and mine it to their heart's content and the freelancer receives no recompense.

Uncool.

An example closer to home: My friend Pete developed the Roden for the Monster Burner. He wrote the majority of the chapter and definitely came up with all the cool ideas. In the way BW operates with rights, Pete is free to expand on and develop the Roden in any other medium except RPGs. They are his ideas, he should by default retain ownership.

If you have to hire freelancers, do what Clinton suggests and sign a contract where you are leasing the rights to their work for your game. But ownership and the right to expand and develop their own ideas should remain in their power.

-L

[Ben Lehman]

Let's see - the traditional publisher is defined as keeping all rights for work that he pays others to do, or gets for free. There's a few terms I'd use, the nicest of which are "creator-unfriendly" and "closed-rights." In the end, "traditional publisher" probably suffices.

BL> I disagree.  I do not believe it suffices.

Traditional Publishing (and I am talking here about books) leases the right-to-publish from an author in exchange for cash and royalties.  If publication is not kept up, right-to-publish returns to the author.  In all cases, the author maintains creative control over the text in terms of revisions, etc.

The only media in which creators do not maintain basic publication and creative rights are RPGs and Comic Books, both of which are fringe, and this is dying in comics as they move mainstream.

It is a terrible, exploitive business model, and the only "tradition" that it carries is one of robbery and slave labor.

yrs--
--Ben

[Blankshield]

The only media in which creators do not maintain basic publication and creative rights are RPGs and Comic Books,

...and computer games.

Edit: Most of the software industry, come to think of it.

James

[Ben Lehman]

The only media in which creators do not maintain basic publication and creative rights are RPGs and Comic Books,

...and computer games.

Edit: Most of the software industry, come to think of it.

BL>  While this is true, I was mostly thinking of booky things.

Software is more complicated, as it is usually not produced by one person, and not entirely artistic.

yrs--
--Ben

[greedo1379]

For example, a freelancer is hired to work on a project. During said work, he develops a kewl new twist. In the traditional model, the publisher now owns the rights to that idea. They can exploit and mine it to their heart's content and the freelancer receives no recompense.

This is how it works in "non creative" industries too.  So what?

[clehrich]

A few points, some of which may just be clarifications I need about this business.

"Indie" it seems to me is a bit strange as a term, because of all the hype about "indie" movies, which cost zillions to make and have big stars but don't happen to be produced by a certain set list of companies.  I know there's more to it, but frankly I think most "indie" films these days (at Sundance and such) aren't what we mean by "indie".  And all the points others have made, as well.

As to the publishing model, I'm confused.  My contract with Brill for my book said more or less what Ben Lehman suspected it would say.  They have the rights to publish and re-publish, and they hold the copyright.  But if the book goes out of print, or they can't or don't want to make it available after a certain amount of time, all rights revert to me, and I can flog it to another press for a second printing.

The contract states the royalties I get, how they are calculated, the minimum amount of time the book has to remain in print, the amount of time that must pass before the copyright reverts, the ways they have to keep me informed about the book, and so on.  It states when I have to produce the MS, what condition it has to be in, and what sorts of editing they will and will not provide.  The first draft also included a standard piece of boilerplate that says that I have to offer them my next book for right of first refusal, but as I was already working with Cornell UP they were willing to drop that without demur.  They also explain how much (as a percentage) I have to pay for additional copies of my book, how many I get free, and what percentage discount I get on other books from Brill.

For that setup, I get the certainty that the book will be printed and made available, that they will do what they can to get it to sell (e.g. advertising of various kinds), that they will protect me against copyright infringement, that they will not in any way alter the text, and that everything except the text I provided is their problem: the cover, the reviews, the sales, the royalties, everything.

Now I don't see that as abusive or unreasonable.  Basically I provide a text, and they provide the business workings that get that text to readers.  For this they get the rights to exclusive printing and a certain cut of the cover price.  I get the assurance that someone is doing all the tedious business and legal work for me, and I get royalties.  So once I have a contract in hand, and I have provided a final MS, I can sit back and do nothing and the book goes on the market without me -- and stays there.

Consider all the discussions of copyright and infringement that come up here.  I don't have to worry about any of this.  Not my problem.  If I spot genuine copyright infringement going on, or suspect that I do, I tell Brill and they bring their legal department to bear and I don't have to do anything.  And if what I wrote infringed in some way, they're the ones who are supposed to figure that out and tell me what to do to fix it.

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?

For those who care, by the way, you can get a really good idea of how this kind of thing works from William Germano, Getting It Published, which is about how the publishing of academic books works.

Based on my experience of this kind of publishing, I'd call Brill a "creater-friendly" publisher, but they're about as traditional as it gets.