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.

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

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

abzu wrote:
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.

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.

madelf wrote:
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?

(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)

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.

Tav_Behemoth wrote:
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.

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.

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)

Clinton R. Nixon wrote:
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.

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

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

Blankshield wrote:
...and computer games.

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

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.

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.

clehrich wrote:
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?

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.

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.

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.

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.

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.

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

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

Hi,

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

Thanks!

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.

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.

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.
;)

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.

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.

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:

madelf wrote: 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.

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?

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

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

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.

greyorm,

I believe I've done you a bit of a disservice. I think my interpretation of your statements may have been colored by previous discussions I've had. And when I get in rant mode... look out.

I did not mean to put words in your mouth in pursuit of my broader points. While responding to you, I was also addressing issues beyond the scope of your comments.
I'm sorry about that. I hope you'll accept my apology, and I'll try to keep that sort of thing to a minimum.

This issue that the contract only serves the publisher bothers me.
It's not true (well, it can be, maybe even often is, but shouldn't be) and more to my point doesn't need to be true. A contract does one thing, it outlines the terms of the agreement. That's all. It's not good, it's not bad... it just is. The idea that "current contracts" are bad, or broken, in some way is flawed, because not all contracts are the same. Some are bad certainly. I'm sure others are good. Generally (in my experience - which admittedly is not as a writer) they are some sort of compromise between the best interests each party, sometimes tilted one way and sometimes the other.

I think (I hope) we agree that any contract should reflect the best possible compromise between what the writer wants & needs and what the publisher wants & needs.

But I believe the writer needs to take as much responsibility for what is in that final, signed contract as the publisher does. If the writer and publisher aren't both completely comfortable with the terms of that contract, and all the possible outcomes of those terms down the road... then they have no business signing the contract. Does that make sense?

Now given that, I also feel the publisher should be willing to work with the writer and compromise as much as they can, and be forthcoming about their reasons in situations where they cannot (or will not) compromise. As you say, close the holes. Unless there's a good reason for the hole to be there. If everything is up front, then (regardless of the final terms) there is fairplay. I don't think anything more is really reasonable to expect.

At a guess, I'd say the best solution is for established writers to take a stand against unfair contracts and educate up & coming writers about the perils of signing away too much (an endeavor which seems to be well under way). But I think that needs to be tempered (a lot more than I have seen) with the understanding that publishers may need to, or want to, gain something out of a contract beyond just the right to publish.

This "first rights good, everything else bad" attitude that seems so prevalent, really needs to go. That's also not doing either side any favors, it just makes both sides dig in and become less willing to negotiate. (And there I'm probably addressing the greater world of writers again, rather than your comments specifically- sorry, but it's a point I think is important)

The only further thoughts I have on the Troy Denning / WotC issue is that apparently WotC has some reason for holding onto the rights to Dark Sun in the face of cash. Perhaps they're not revealing what that reason is, but I firmly believe there must be one. I suspect they're probably holding it in reserve to potentially resurrect sometime down the road, and feel that potential value is greater than whatever Denning is offering. And even that's just a gut feeling. (I also have the gut feeling that the company - which might have been TSR at the time- probably bought the rights they did in the first place for a reason, not a whim, and WotC is now exercising rights they, or the previous company, always intended to, not ones they just stumbled across in a boiler plate contract - but again, just a gut feeling). As I said, I know nothing about Dark Sun or its status. As for Ravenloft and Dragonlance, I was under the impression that they licensed those settings to other companies, not sold them outright. I could be mistaken of course.

But I agree, the specifics of that one situation is not really important to what we're discussing (except insofar as it emphasizes my point that the writer needs to be aware of what they are signing away - if they are aware, and do it willingly, then they cannot later decide that they got "screwed").

That's where we are most in agreement I think. We can't be careful enough. Not you the writer, not me the theoretical publisher. Strangely this is also where we seem to disagree most. In my opinion, the reason we can't be careful enough has nothing to do with assuming that all publishers are bad publishers, or that all writers want to take advantage of the publisher. That attitude is counter productive. It's not about protection so much as it's about awareness. That's what it all comes down to. We have to know what we're signing. At that point it doesn't matter who thinks they're screwing who, as long as everyone is comfortable with the terms it can be one big old orgy of screwing and no one needs to be bitter about anything. Because they knew what they were getting into.

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.

It occurs to me that I owe you another example too. It's not likely one I would use, but it's a common situation among some of the bigger companies. It's the situation where a company contracts an author to create them a product line (along the lines of Denning and Dark Sun). Here's how I'd be inclined to handle something like that if I was suddenly the CEO of a sizable company and needed a new product line.

The way I see it, this is still a situation where the publisher will need to hold the copyright, and I still believe that Work for Hire simplifies things for that purpose, so lets go with it. In this situation, I'm buying someone else's vision, so I'd give them full creative control with the right of refusal if I think their vision is crap, when I see it complete. (Something like WotC's setting contest, that spawned Eberron, would work well for something like this I think). Now I'm a big corporate entity, and I'll probably be looking for a movie license, so I'll have to keep the subsidiary rights, but maybe I could figure in some sort of bonus for the original creator of the line if something like that takes off. He should get an advance with a good royalty on his book. Maybe I could could even cut him in for a small royalty on everything spawned from the product line, as it is his vision that started it after all. I could surely give him something for translations of the original book. I might (big might) be willing to let the copyright transfer to the original author if I let the book go out of print for an extended period, but I'd have to put some thought into that. There could be some nostalgia value in a “dead” setting suddenly being re-released after a good stretch of being out of print, so I'm not sure I'd give that away easily. Input on cover & interior design is good, but subject to veto (I'd want the look of the product to match the writer's vision to a point, but that's not the only consideration). The author would be credited as creator, not just on the initial book but on the entire product line. Unless he chooses otherwise. One last cookie (a biggie I think), would be the right of first refusal if I ever decide to sell off the product line (but I set the sales price, I just can't sell it to someone else for less than the original author is willing to offer me).

Calvin,

That is a whole lot to dig into, so don't expect a full reply from me for a few days (couple reasons, I'm under deadline right now and down to the teeth on it, finals week in school is this upcoming week for me, plus I'm fitting work for my tech. clients in all weekend).

I did want to respond to one thing quickly, though, rather than leave you hanging:

madelf wrote: I believe I've done you a bit of a disservice. I think my interpretation of your statements may have been colored by previous discussions I've had. And when I get in rant mode... look out.

I did not mean to put words in your mouth in pursuit of my broader points. While responding to you, I was also addressing issues beyond the scope of your comments.

I'm sorry about that. I hope you'll accept my apology, and I'll try to keep that sort of thing to a minimum.

Cool.

I look forward to seeing what you come up with.